<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Rockefeller Center Properties, Inc.
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
773102 10 8
(CUSIP Number)
Roger S. Begelman Esq.
Goldman, Sachs & Co.,
85 Broad Street
New York, N.Y. 10004
(212) 902-0940
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
December 29, 1994
(Date of Event which Requires Filing of this Statement)
If a filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Check the following box if a fee is being paid with this statement [X].
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- ---------------------
CUSIP NO. 773102 10 8
- ---------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Whitehall Street Real Estate Limited Partnership V
(75-2540937)
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
OO
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 4,155,927 Shares
SHARES (1) ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0 Shares
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 4,155,927 Shares
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0 Shares
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,155,927 Shares
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[X]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7979%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- ------------------------------------------------------------
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- ---------------------
CUSIP NO. 773102 10 8
- ---------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WH Advisors, L.P. V
(75-2540933)
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 2.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 4,155,927 Shares
SHARES (2) ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0 Shares
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 4,155,927 Shares
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0 Shares
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,155,927 Shares
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[X]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7979%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- ------------------------------------------------------------
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- ---------------------
CUSIP NO. 773102 10 8
- ---------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WH Advisors, Inc. V
(75-2540925)
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 2.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 4,155,927 Shares
SHARES (2) ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0 Shares
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 4,155,927 Shares
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0 Shares
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,155,927 Shares
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[X]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.7979%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
- ------------------------------------------------------------
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- ---------------------
CUSIP NO. 773102 10 8
- ---------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, L.P.
(13-3501777)
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
See Item 2.
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 4,156,578 Shares
SHARES (2) ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0 Shares
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 4,156,578 Shares
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0 Shares
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,156,578 Shares
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[X]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.8%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
HC
- ------------------------------------------------------------
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- ---------------------
CUSIP NO. 773102 10 8
- ---------------------
- ------------------------------------------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
(13-5108880)
- ------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------
4. SOURCE OF FUNDS
00
- ------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
New York
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 651 Shares
SHARES (2) ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0 Shares
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 651 Shares
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0 Shares
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
651 Shares
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.0015%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
PN
- ------------------------------------------------------------
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Item 1. Security and Issuer.
This Schedule 13D relates to the common stock, par value $0.01
per share (the "Common Stock"), of Rockefeller Center Properties, Inc., a
Delaware corporation ("RCPI"). The principal executive offices of RCPI are
located at 1270 Avenue of the Americas, New York, New York 10022.
Item 2. Identity and Background.
This statement is being filed by the undersigned on behalf of
Whitehall Street Real Estate Limited Partnership V ("Whitehall"), WH
Advisors, L.P. V ("WH Advisors, L.P."), WH Advisors, Inc. V ("WH Advisors,
Inc."), The Goldman Sachs Group, L.P. ("GS Group") and Goldman, Sachs & Co.
("GS&Co.", and together with Whitehall, WH Advisors, L.P., WH Advisors,
Inc. and GS Group, the "Reporting Persons").*
The business address of each Reporting Person is 85 Broad
Street, New York, New York 10004.
Whitehall is a Delaware limited partnership that engages in the
business of investing in debt and equity interests in real estate assets
and businesses. WH Advisors, L.P., a Delaware limited partnership, acts as
the
* Neither the present filing nor anything contained
herein shall be construed as an admission that
Whitehall, WH Advisors, L.P., WH Advisors, Inc., GS
Group or GS&Co. constitute a "person" for any purpose
other than Section 13(d) of the Securities Exchange Act
of 1934, or that Whitehall, WH Advisors, L.P., WH
Advisors, Inc., GS Group and GS&Co. constitute a
"group" for any purpose.
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sole general partner of Whitehall; WH Advisors, Inc., a Delaware
corporation, acts as the sole general partner of WH Advisors, L.P.; and
neither WH Advisors, L.P. nor WH Advisors, Inc. engage in any business
other than in connection with its role as a general partner. GS Group is a
Delaware limited partnership and a holding partnership that engages
(directly and indirectly through subsidiaries or affiliated companies or
both) in the business of buying and selling securities, both foreign and
domestic, and in making investments on behalf of its partners. GS Group is
controlled by its general partners as a group, who have delegated to its
Management Committee the power to act on their behalf with respect to the
management of GS Group. GS&Co., a New York limited partnership, is an
investment banking firm and a member of the New York Stock Exchange, Inc.
and other national securities exchanges. GS Group, one of the general
partners of GS&Co., owns a 99% partnership interest in GS&Co.
The name, residence or business address, present principal
occupation or employment, the name, principal business and address of any
corporation or other organization in which such employment is conducted and
the citizenship of (i) each director and executive officer of WH Advisors,
Inc. is set forth in Schedule I hereto and is incorporated herein by
reference, (ii) each general partner of GS Group and GS&Co. (other than GS
Group) that is a
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natural person is set forth in Schedule II hereto and is incorporated
herein by reference and (iii) each director and executive officer of each
corporate general partner of GS&Co. is set forth in Schedule III hereto and
is incorporated herein by reference. The members of the Management
Committee of GS Group are those persons listed in Schedule II who have an
asterisk marked next to their name.
None of the Reporting Persons, or to the best knowledge and
belief of the Reporting Persons, any of the individuals listed in Schedule
I, Schedule II or Schedule III have, during the past five years, been
convicted in any criminal proceeding (excluding traffic violations or
similar misdemeanors) or have been parties to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
This Item 2 is qualified in its entirety by reference to
Schedule I, Schedule II and Schedule III which are attached hereto and
incorporated into this Item by reference.
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Item 3. Source and Amount of Funds or Other Consideration.
Whitehall acquired 4,155,927 warrants (the "Warrants") issued
under the Warrant Agreement, dated as of December 18, 1994, as amended by a
letter agreement, dated as of December 29, 1994, (as so amended, the
"Warrant Agreement"), between RCPI and Chemical Bank, as warrant agent, in
consideration for (i) the execution and delivery of the Debenture Purchase
Agreement, dated as of December 18, 1994 (the "Debenture Purchase
Agreement"), between RCPI and Whitehall pursuant to which RCPI agreed to
issue and Whitehall agreed to purchase $75 million principal amount of
RCPI's debentures (the "14% Debentures") and (ii) the purchase by Whitehall
of the 14% Debentures on December 29, 1994. Each Warrant became
exercisable for one share of Common Stock on December 29, 1994.
The funds used by Whitehall to purchase the 14% Debentures came
from capital contributions from the partners in Whitehall.
The 651 shares of Common Stock beneficially owned by GS&Co. are
held in discretionary client accounts. Accordingly, no consideration was
paid by GS&Co. in connection with the acquisition of these shares for its
clients' accounts.
Item 4. Purpose of Transaction.
Whitehall acquired the Warrants as part of a refinancing by
RCPI of certain of its indebtedness. Such
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refinancing also included, among other transactions, (i) the execution and
delivery of the Debenture Purchase Agreement, (ii) the purchase of the 14%
Debentures by Whitehall, (iii) the execution and delivery of the SAR
Agreement, dated as of December 18, 1994, between RCPI and Chemical Bank,
as agent, as amended by a letter agreement, dated as of December 29, 1994,
between RCPI and Chemical Bank, as agent (as so amended, the "SAR
Agreement"), (iv) the issuance to Whitehall of 5,349,541 rights (each such
right an "SAR") under the SAR Agreement, (v) the execution and delivery by
RCPI and Goldman Sachs Mortgage Company ("GSMC") of the Loan Agreement,
dated as of December 18, 1994 (the "Loan Agreement"), and (vi) the
borrowing by RCPI on December 29, 1994 of $150,000,000 under the Loan
Agreement.
As of the date of this statement, none of the Reporting Persons
has any plan or proposal which relates to or would result in any of the
actions set forth in parts (a) through (j) of Item 4 of Schedule 13D, other
than the following:
1. The SAR Agreement provides that upon the execution of an
amendment to RCPI's Certificate of Incorporation with respect to the
limitation on ownership of Common Stock contained in Article NINTH thereof,
the SARs shall automatically be exchanged for warrants with terms identical
to the Warrants (the "SAR Warrants") to the extent permitted by such
amendment. The Reporting Persons have
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been informed by RCPI that it intends to propose an amendment to increase
the ownership limit contained in Article Ninth of RCPI's Certificate of
Incorporation at the 1995 annual meeting of RCPI's stockholders. If such
an amendment is adopted, the SARs will be exchanged, to the extent
permitted by such amendment to the Certificate of Incorporation, for SAR
Warrants exercisable for up to 10.1% of the outstanding shares of Common
Stock, which together with the Warrants would equal up to 19.9% of RCPI's
outstanding Common Stock.
2. Under the terms of a letter, dated December 18, 1994 (the
"Board Letter"), from RCPI to Whitehall and GS&Co., RCPI has agreed, as
soon as practicable after December 29, 1994, that one member of RCPI's
Board of Directors will resign and the remaining members of the Board will
appoint a designee of GS&Co. to the Board for the remaining term of such
resigning director. Thereafter, for so long as GS&Co. and its affiliates
own Warrants, SARs and/or Common Stock which, in the aggregate, constitute,
and/or evidence the right to exercise therefor, 5% of the Common Stock on a
fully diluted basis, GS&Co. will have the right to designate one director
to RCPI's Board of Directors, and RCPI has agreed to cooperate, to the
extent permitted by Delaware General Corporation Law, to ensure the
appointment of GS&Co.'s designee to RCPI's Board of Directors.
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<PAGE> 13
3. The terms of the Loan Agreement and Debenture Purchase
Agreement restrict annual dividends payable on Common Stock to $.80 per
share (except to the extent RCPI is otherwise required to pay dividends to
maintain its status as a REIT under Subchapter M of the Internal Revenue
Code of 1986, as amended) which is subject to certain anti-dilution
adjustments.
4. The Board Letter provides that RCPI's Board of Directors
will amend RCPI's by-laws to provide that, unless a different vote is
specified in the General Corporation Law of Delaware or in RCPI's
Certificate of Incorporation, a vote of 62.5% of the then outstanding
voting power of RCPI shall be required to approve any action submitted to
the stockholders of RCPI (other than the election of directors or
ratification of appointment of auditors) if less than 62.5% of the
outstanding Warrants and the SARs have approved of such action in
accordance with the Warrant Agreement and the SAR Agreement.
5. See Item 6 for a discussion of the anti-dilution
provisions in the Warrants Agreement and SAR Agreement that may result in
the acquisition of additional shares of Common Stock by the Reporting
Persons.
Each Reporting Person expects to evaluate on an ongoing basis
RCPI's financial condition and prospects and their interest in, and
intentions with respect to, RCPI. Accordingly, each Reporting Person
reserves the right to
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change its plans and intentions at any time, as it deems appropriate. In
particular, each Reporting Person may at any time and from time to time
acquire additional shares of Common Stock or securities convertible or
exchangeable for Common Stock; may dispose of shares of Common Stock,
Warrants or SARs; and/or may enter into privately negotiated derivative
transactions with institutional counterparties to hedge the market risk of
some or all of its positions in the Common Stock, Warrants and/or SARs.
Any such transactions may be effected at any time and from time to time.
To the knowledge of each Reporting Person, each of the persons listed on
Schedule I, Schedule II and Schedule III hereto may make the same
evaluation and may have the same reservations.
This Item 4 is qualified in its entirety by reference to the
Debenture Purchase Agreement, the Loan Agreement, the SAR Agreement and the
Board Letter which are filed as exhibits hereto.
Item 5. Interest in Securities of the Issuer.
(a) & (b)
1. On December 29, 1994, the Warrants became exercisable for
4,155,927 shares of Common Stock, representing 9.7979% of the outstanding
shares of Common Stock. Whitehall has sole voting and dispositive power
with respect to such shares of Common Stock.
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2. WH Advisors, L.P., as the general partner of Whitehall,
may be deemed to indirectly beneficially own all of the 4,155,927 shares of
Common Stock beneficially owned by Whitehall.
3. WH Advisors, Inc., as the sole general partner of WH
Advisors, L.P., may be deemed to indirectly beneficially own all of the
4,155,927 shares of Common Stock beneficially owned by Whitehall.
4. GS&Co. beneficially owns 651 shares of Common Stock,
representing .0015% of the outstanding shares of Common Stock. These shares
are held in discretionary customer accounts of GS&Co.; the customers may
withdraw these shares from their accounts at any time. Until such a
withdrawal, GS&Co. has sole voting and dispositive power over these shares.
5. GS Group, as the direct beneficial owner of all of the
capital stock of WH Advisors, Inc. and as a general partner of GS&Co., may
be deemed to indirectly beneficially own the 4,155,927 shares of Common
Stock beneficially owned by Whitehall and the 651 shares of Common Stock
beneficially owned by GS&Co., representing an aggregate of 9.8% of the
outstanding shares of Common Stock.
6. To the knowledge of each Reporting Person, the persons
listed in Schedule I, Schedule II and Schedule III hereto own shares of
Common Stock, if any, in the amounts set forth on Schedule IV hereto.
Unless otherwise
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indicated, such persons have the sole voting and dispositive rights with
respect to the specified shares of Common Stock.
(c) None of the Reporting Persons and, to the knowledge of
the Reporting Persons, none of the persons listed on Schedule I, Schedule II
or Schedule III hereto, has been party to any transaction in the Common Stock
during the sixty-day period ending on the date of this Statement on
Schedule 13D.
(d) To the knowledge of the Reporting Persons, no other
person has the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, any shares of Common
Stock deemed beneficially owned by the Reporting Persons.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
(a) Warrants. Each Warrant is exercisable at any time on or
prior to December 31, 2007 for one share of Common Stock at an exercise
price of $5.00 per share. The exercise price of the Warrants, and the
number of shares of Common Stock receivable upon exercise of the Warrants,
are subject to adjustments upon (i) the payment of dividends payable in
shares of Common Stock on the Common Stock; (ii) the issuance to all
holders of Common Stock rights or warrants entitling holder of such rights
or warrants to subscribe for or purchase Common Stock at less than the
current market price; and (iii) subdivisions and combinations of Common
Stock. The Warrants also contain
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anti-dilution provisions that (i) preserve the percentage of outstanding
shares of Common Stock into which the Warrants are convertible through the
issuance of additional Warrants to the holders thereof in the case of the
additional issuance of shares of Common Stock at or above the "fair market
value of Common Stock" (as defined in the Warrant Agreement) and (ii)
require the consent of (x) GS&Co. for so long as GS&Co. and its affiliates
beneficially own Warrants and SARs exercisable for at least 5% of the
shares of Common Stock then outstanding "on a fully diluted basis" (as
defined in the Warrant Agreement) any (y) holders of Warrants and SARs
representing in the aggregate at least 75% of the Warrants and SARs then
outstanding for any issuances of securities convertible into or
exchangeable or exercisable for shares of Common Stock and any issuances of
shares of Common Stock for consideration less than the "fair market value
of Common Stock", in which case an issuance of warrants as described in
(i) above will be made and an adjustment to the exercise price of such
warrants will be made.
The terms of the Warrant Agreement provide for an annual
payment equal to the amount, if any, by which the annual dividend on a
share of Common Stock exceeds $.60, which amount is subject to certain
anti-dilution adjustments.
The Warrant Agreement grants Whitehall unlimited demand
registration rights to cause RCPI to register the Warrants and shares of
Common Stock into which the Warrants are exercisable under the Securities
Act of 1933, as amended
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<PAGE> 18
(the "Securities Act"). Any such registration will be effected by RCPI on
terms substantially similar to those discussed under "Registration Rights
Agreement" below.
(b) SAR Agreement. Under the SAR Agreement, Whitehall was
issued 5,349,541 SARs. Each SAR is (a) exercisable for a principal amount
of 14% Debentures equal to the aggregate current market price (as
determined in accordance with the SAR Agreement) of the shares of Common
Stock to which a holder of an SAR would be entitled upon an exchange of an
SAR for an SAR Warrant and a subsequent exercise thereof for shares of
Common Stock in accordance with the Warrant Agreement, minus the exercise
price per Warrant then in effect pursuant to the Warrant Agreement and
(b) exchangeable, under certain circumstances, for one SAR Warrant. The
SARS are exchangeable for SAR Warrants only to the extent that such an
exercise would not cause Whitehall to exceed the ownership limit in Article
NINTH in RCPI's Certificate of Incorporation, which is currently 9.8%.
Accordingly, since Whitehall currently owns Warrants convertible into 9.8%
of the Common Stock of RCPI, the SARs are not currently exchangeable for
Warrants and will only be so exchangeable if the ownership limit is
increased or Whitehall disposes of Warrants. See Item 4 for a discussion
of a proposal to increase the ownership limit in Article NINTH of RCPI's
Certificate of Incorporation.
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<PAGE> 19
The SAR Warrants have the benefit of the anti-dilution provisions
of, and anti-dilution provisions similar to those of, the Warrants
discussed above in paragraph (a).
The SAR Agreement grants Whitehall unlimited demand
registration rights to cause RCPI to register SARs and the 14% Debentures,
Warrants and shares of Common Stock into which the SARs are exercisable or
exchangeable under the Securities Act. Any such registration will be
effected by RCPI on terms substantially similar to those discussed under
"Registration Rights Agreement" below.
(c) Registration Rights Agreement. Under a Registration
Rights Agreement, dated as of December 18, 1994 (the "Registration Rights
Agreement"), among RCPI, GSMC and Whitehall, RCPI has granted unlimited
demand registration rights to each of GSMC and Whitehall for the
registration of the notes evidencing the loans made under the Loan
Agreement (the "Notes") and the 14% Debentures under the Securities Act.
The Registration Rights Agreement provides that the costs and expenses of
the first four such registrations and the costs and expenses of the first
four demands made to register any securities pursuant to a registration
statement previously filed pursuant to Rule 415 of the Securities Act in
any year, including the fees and expenses of one counsel for the requesting
holders, other than underwriting discounts and commissions, will be paid by
RCPI. In addition, RCPI has granted the holders of Notes and 14%
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<PAGE> 20
Debentures the right to be included in any registration of securities
effected by RCPI, subject to possible proration. In connection with any
such registration, the Registration Rights Agreement provides that RCPI
will indemnify and hold harmless, or will contribute to certain losses
incurred by, the requesting holders.
(d) Security Documents. RCPI and Bankers Trust Company, as
corporate trustee and Gary Vaughan, as individual trustee (collectively,
the "Trustee"), entered into a Collateral Trust Agreement, dated as of
December 29, 1994 (the "Collateral Trust Agreement"), to create a trust for
the ratable benefit of the lenders under the Loan Agreement, the holders of
the 14% Debentures and the holders of securities issued pursuant to an
Indenture, dated as of September 15, 1985 made by RCPI to United States
Trust Company (as successor in interest to Manufacturers Hanover Trust
Company), (the "1985 Indenture") pursuant to which substantially all the
assets of RCPI other than certain mortgages (which have been assigned to
such trust pursuant to a separate Assignment of Mortgages, dated as of
December 29, 1994, from RCPI) have been assigned to such trust.
(e) Convertible Debentures. GS&Co. is the beneficial owner
of $4,445,000 face amount of Current Coupon Convertible Debentures due 2000
(CUSIP 773102 AB 4), issued pursuant to the 1985 Indenture and $2,300,000
face amount of
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<PAGE> 21
Zero Coupon Convertible Debentures due 2000 (CUSIP 773102 AA 6) issued
pursuant to the 1985 Indenture (collectively, the "Convertible
Debentures"). In connection with such ownership, GS&Co. also has a short
position of 100,000 shares of Common Stock. The Convertible Debentures are
not exchangeable for Common Stock until 2000. Since the Convertible
Debentures are not exchangeable for Common Stock within 60 days from the
date of this Statement and were not acquired by GS&Co. with the purpose or
effect of changing or influencing the control of the issuer or in
connection with any transaction having such purpose or effect, the
Reporting Persons disclaim beneficial ownership of the Common Stock for
which the Convertible Debentures may be exchanged.
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<PAGE> 22
Item 7. Material to be Filed as Exhibits.
Exhibit No. Exhibit Page
1 Warrant Agreement, dated as of December 18,
1994, between RCPI and Chemical Bank, as
warrant agent, as amended by a letter
agreement, dated as of December 29, 1994,
between RCPI and Chemical Bank, as warrant
agent.
2 Debenture Purchase Agreement, dated as of
December 18, 1994, between RCPI and
Whitehall.
3 SAR Agreement, dated as of December 18,
1994, between RCPI and Chemical Bank, as
SAR agent, as amended by a letter
agreement, dated as of December 29, 1994,
between RCPI and Chemical Bank, as SAR
agent.
4 Loan Agreement, dated as of December 18,
1994, between RCPI and GSMC.
<PAGE>
<PAGE> 23
Exhibit No. Exhibit Page
5 Registration Rights Agreement, dated as of
December 29, 1994, among RCPI, Whitehall
and GSMC.
6 Board Letter, dated as of December 18,
1994.
7 Joint Filing Agreement.
<PAGE>
<PAGE> 24
SIGNATURE
After reasonable inquiry and to our best knowledge and belief,
I certify that the information set forth in this statement is true complete
and correct.
Dated: January 3, 1995
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General
Partner
By: WH Advisors, Inc. V,
General Partner
By: /s/ Ralph Rosenberg
Name: Ralph Rosenberg
Title: Vice President
<PAGE>
<PAGE> 1
SCHEDULE I
The following table sets forth the name of each director and
executive officer of WH Advisors, Inc. V. Unless otherwise indicated, the
business address of each person listed below is 85 Broad Street, New York,
New York 10004, and, unless otherwise indicated, each natural person listed
below is a citizen of the United States of America. The principal
occupation of each person listed below is the position set forth next to
his name at Goldman, Sachs & Co., 85 Broad Street, New York, New York
10004.
Present Principal Occupation
Name and Business Address at Goldman, Sachs & Co.
David T. Hamamoto General Partner
Daniel M. Neidich General Partner
Michael D. Fascitelli General Partner
Anthony J. Colletta Vice President
Henry Cornell General Partner
Neil N. Hasson Vice President
Stuart F. Koenig Vice President
Ralph F. Rosenberg Vice President
Dang T. Phan Vice President
Andrew P. Rifkin Vice President
Stuart M. Rothenberg Vice President
Barry A. Sholem Vice President
David R. Weil Vice President
Todd A. Williams Vice President
<PAGE>
<PAGE> 1
SCHEDULE II
The following table sets forth the name of each of the general
partners of The Goldman Sachs Group, L.P. ("GS Group") and Goldman, Sachs &
Co. who is a natural person. Each person listed below is a general partner
of both GS Group and Goldman, Sachs & Co. Unless otherwise indicated, the
business address of each person listed below is 85 Broad Street, New York,
NY 10004, and, unless otherwise indicated, each natural person listed below
is a citizen of the United States of America. The principal occupation of
each person listed below is as a general partner of Goldman, Sachs & Co.
The persons listed below who have an asterisk marked next to their name are
members of the Management Committee of GS Group.
Name and Citizenship Business Address
Roy J. Zuckerberg*
David M. Silfen*
Jon Z. Corzine*
Eugene V. Fife* 133 Fleet Street
London EC4A 2BB, England
Richard M. Hayden 133 Fleet Street
London EC4A 2BB, England
Robert J. Hurst*
Howard C. Katz
Peter K. Barker 333 South Grand Avenue
Los Angeles, CA 90071
Eric S. Dobkin
Willard J. Overlock, Jr.*
Henry M. Paulson, Jr.* 4900 Sears Tower
Chicago, IL 60606
Jonathan L. Cohen
Fredric B. Garonzik 133 Fleet Street
London EC4A 2BB, England
Kevin W. Kennedy
William C. Landreth 555 California Street
San Francisco, CA 94104
Daniel M. Neidich
Edward Spiegel
Fischer Black
<PAGE>
<PAGE> 2
Name and Citizenship Business Address
Robert F. Cummings, Jr.
Angelo DeCaro
Steven G. Einhorn
David B. Ford
David M. Leuschen
Michael R. Lynch
Michael D. McCarthy
Donald C. Opatrny, Jr.
Thomas E. Tuft
Robert J. Katz*
Michael P. Mortara
Lloyd C. Blankfein
John P. Curtin, Jr.
Gavyn Davies 133 Fleet Street
United Kingdom London EC4A 2BB, England
Dexter D. Earle
J. Christopher Flowers
Gary Gensler 12-32, Akasaka 1-chome
Minato-ku, Tokyo 107, Japan
Charles T. Harris III
Thomas J. Healey
Stephen Hendel
Robert E. Higgins
Ernest S. Liu
Eff W. Martin 555 California Street
San Francisco, CA 94104
Charles B. Mayer, Jr.
Michael J. O'Brien 133 Fleet Street
United Kingdom London EC4A 2BB, England
Mark Schwartz
Stephen M. Semlitz
Robert K. Steel 133 Fleet Street
London EC4A 2BB, England
<PAGE>
<PAGE> 3
Name and Citizenship Business Address
John A. Thain*
John L. Thornton 133 Fleet Street
London EC4A 2BB, England
Bracebridge H. Young, Jr. 133 Fleet Street
London EC4A 2BB, England
Joseph R. Zimmel
Barry L. Zubrow
Gary L. Zwerling
Jonathan R. Aisbitt 133 Fleet Street
United Kingdom London EC4A 2BB, England
Andrew M. Alper
William J. Buckley
Frank L. Coulson, Jr.
Connie Kadrovach Duckworth 4900 Sears Tower
Chicago, IL 60606
Richard A. Friedman
Alan R. Gillespie 133 Fleet Street
United Kingdom London EC4A 2BB, England
Joseph H. Gleberman
Jacob D. Goldfield
Steven M. Heller
Ann F. Kaplan
Robert S. Kaplan
Peter D. Kiernan III
T. Willem Mesdag 133 Fleet Street
London EC4A 2BB, England
Gaetano J. Muzio
Robin Illgen Neustein
Timothy J. O'Neill
Scott M. Pinkus
John J. Powers
Stephen D. Quinn
Arthur J. Reimers 133 Fleet Street
London EC4A 2BB, England
<PAGE>
<PAGE> 4
Name and Citizenship Business Address
James P. Riley, Jr.
Richard A. Sapp 133 Fleet Street
London EC4A 2BB, England
Donald F. Textor
Thomas B. Walker III
Patrick J. Ward 133 Fleet Street
London EC4A 2BB, England
Jeffrey M. Weingarten 133 Fleet Street
London EC4A 2BB, England
Jon Winkelried
Richard Witten
Gregory K. Palm
Carlos A. Cordeiro 133 Fleet Street
London EC4A 2BB, England
John O. Downing 133 Fleet Street
London EC4A 2BB, England
W. Mark Evans 3 Garden Road Central
Canada Hong Kong
Michael D. Fascitelli
Sylvain M. Hefes 133 Fleet Street
France London EC4A 2BB, England
Reuben Jeffery III 133 Fleet Street
London EC4A 2BB, England
Lawrence H. Linden
Jun Makihara 12-32, Akasaka 1-chome
Japan Minato-ku, Tokyo 107,
Japan
Masanori Mochida 12-32, Akasaka 1-chome
Japan Minato-ku, Tokyo 107,
Japan
Robert B. Morris III 555 California Street
San Francisco, CA 94104
Philip D. Murphy Messe Turm, D-6000
Frankfurt am Main 1, Germany
Suzanne M. Nora Johnson 333 South Grand Avenue
Los Angeles, CA 90071
Terence M. O'Toole
<PAGE>
<PAGE> 5
Name and Citizenship Business Address
Carl G.E. Palmstierna 133 Fleet Street
Sweden London EC4A 2BB, England
Michael G. Rantz
J. David Rogers
Joseph Sassoon 133 Fleet Street
Israel London EC4A 2BB, England
Peter Savitz 12-32, Akasaka 1-chome
Minato-ku, Tokyo 107,
Japan
Charles B. Seelig Jr.
Ralph F. Severson 555 California Street
San Francisco, CA 94104
Gene T. Sykes 333 South Grand Avenue
Los Angeles, CA 90071
Gary A. Syman 12-32, Akasaka 1-chome
Minato-ku, Tokyo 107,
Japan
Leslie C. Tortora
John L. Townsend
Lee G. Vance 133 Fleet Street
London EC4A 2BB, England
David A. Viniar
John S. Weinberg
Peter A. Weinberg
Laurence M. Weiss
George W. Wellde Jr.
Jaime E. Yordan
Sharmin Mossauar-Rahmani
United Kingdom
Hideo Ishihara 12-32, Akasaka 1-chome
Japan Minato-ku, Tokyo 107,
Japan
Paul M. Achleitner 133 Fleet Street
London EC4A 2BB, England
Aermen A. Avanessians
Joel S. Beckman
<PAGE>
<PAGE> 6
Name and Citizenship Business Address
David W. Blood 133 Fleet Street
London EC4A 2BB, England
Zachariah Cobrinik 133 Fleet Street
London EC4A 2BB, England
Gary D. Cohn 133 Fleet Street
London EC4A 2BB, England
Christopher A. Cole
Henry Cornell 3 Garden Road Central
Hong Kong
Robert V. Delaney
Joseph Della Rosa
J. Michael Evans 133 Fleet Street
London EC4A 2BB, England
Lawton W. Fitt
Joseph D. Gatto
Peter C. Gerhard
Nomi P. Ghez
David T. Hamamoto
Walter H. Haydock Munsterhof 4
8022 Zurich, Switzerland
David L. Henle
Francis J. Ingrassia
Scott B. Kapnick 133 Fleet Street
London EC4A 2BB, England
Kevin M. Kelly
John C. Kleinert
Jonathan L. Kolatch
Peter S. Kraus
Robert Litterman
Jonathan M. Lopatin
Thomas J. Macirowski
Peter G.C. Mallinson 3 Garden Road Central
Hong Kong
<PAGE>
<PAGE> 7
Name and Citizenship Business Address
Oki Matsumoto 12-32, Akasaka 1-chome
Minato-ku, Tokyo 107,
Japan
E. Scott Mead 133 Fleet Street
London EC4A 2BB, England
Eric M. Mindich
Steven T. Mnuchin
Thomas K. Montag
Edward A. Mule
Kipp M. Nelson 133 Fleet Street
London EC4A 2BB, England
Christopher K. Norton Messe Turm, D-6000
Frankfurt am Main 1, Germany
Robert J. O'Shea
Wiet H. Pot 133 Fleet Street
London EC4A 2BB, England
Jack L. Salzman
Eric S. Schwartz
Michael F. Schwerin
Richard S. Sharp 133 Fleet Street
London EC4A 2BB, England
Richard G. Sherlund
Michael S. Sherwood
Cody J. Smith
Daniel W. Stanton
Esta E. Stecher
Fredric E. Steck 555 California Street
San Francisco, CA 94104
Byron D. Trott
Barry S. Volpert
Peter S. Wheeler 3 Garden Road Central
Hong Kong
Anthony G. Williams 133 Fleet Street
London EC4A 2BB, England
Gary W. Williams
<PAGE>
<PAGE> 8
Name and Citizenship Business Address
Trach R. Wolstencroft 100 Crescent Court, Suite 1000
Dallas, Texas 75201
Danny O. Yee 3 Garden Road Central
Hong Kong
Michael J. Zamkow
Mark A. Zurack
<PAGE>
<PAGE> 1
SCHEDULE III
The name, business address, present principal occupation or
employment and citizenship of each controlling person, if any, director and
executive officer of each general partner of GS Group or Goldman, Sachs &
Co. that is a corporation are set forth below.
I. Nobuyoshi John Ehara Inc.
Nobuyoshi John Ehara Inc. is controlled by Nobuyoshi John
Ehara, its President and one of its directors. The business address of
each person listed below other than Nobuyoshi John Ehara is 85 Broad
Street, New York, New York 10004, and each such person is a citizen of the
United States of America. The business address of Nobuyoshi John Ehara, a
citizen of Japan, is the Ark Mori Building, 12-32, Akasaka 1-chome, Minato-
ku, Tokyo 107, Japan.
Name and Business Position Present Principal
Address Occupation
Robert J. Katz Chairman of the Board General Partner of
Goldman, Sachs & Co.
Joel S. Beckman Vice Chairman of the General Partner of
Board and Treasurer Goldman, Sachs & Co.
Nobuyoshi John Ehara President and Director General Partner of
Goldman, Sachs & Co.
James B. McHugh Secretary Vice President of
Goldman, Sachs & Co.
II. Masanori Mochida Inc.
Masanori Mochida Inc. is controlled by Masanori Mochida, its
President and one of its directors. The business address of each person
listed below other than Masanori Mochida is 85 Broad Street, New York, New
York 10004, and each such person is a citizen of the United States of
America. The business address of Masanori Mochida, a citizen of Japan, is
12-32, Akasaka 1-chome, Minato-ku, Tokyo 107, Japan.
Name and Business Position Present Principal
Address Occupation
Robert J. Katz Chairman of the Board General Partner of
Goldman, Sachs & Co.
<PAGE>
<PAGE> 2
Joel S. Beckman Vice Chairman of the General Partner of
Board and Treasurer Goldman, Sachs & Co.
Masinori Mochida President and Director General Partner of
Goldman, Sachs & Co.
James B. McHugh Secretary Vice President of
Goldman, Sachs & Co.
III. Jun Makihara Inc.
Jun Makihara Inc. is controlled by Jun Makihara, its President
and one of its directors. The business address of each person listed below
other than Jun Makihara is 85 Broad Street, New York, New York 10004, and
each such person is a citizen of the United States of America. The
business address of Jun Makihara, a citizen of Japan, is 333 South Grand
Avenue, Los Angeles, California 90071.
Name and Business Position Present Principal
Address Occupation
Robert J. Katz Chairman of the Board General Partner of
Goldman, Sachs & Co.
Joel S. Beckman Vice Chairman of the General Partner of
Board and Treasurer Goldman, Sachs & Co.
Jun Makihara President and Director General Partner of
Goldman, Sachs & Co.
James B. McHugh Secretary Vice President of
Goldman, Sachs & Co.
IV. Hideo Ishihara Inc.
Hideo Ishihara Inc. is controlled by Hideo Ishihara, its
President and one of its directors. The business address of each person
listed below other than Hideo Ishihara is 85 Broad Street, New York, New
York 10004, and each such person is a citizen of the United States of
America. The business address of Hideo Ishihara, a citizen of Japan, is
the Ark Mori Building, 12-32, Akasaka 1-chome, Minato-ku, Tokyo 107, Japan.
Name and Business Position Present Principal
Address Occupation
Robert J. Katz Chairman of the Board General Partner of
Goldman, Sachs & Co.
<PAGE>
<PAGE> 3
Joel S. Beckman Vice Chairman of the General Partner of
Board and Treasurer Goldman, Sachs & Co.
Hideo Ishihara President and Director General Partner of
Goldman, Sachs & Co.
James B. McHugh Secretary Vice President of
Goldman, Sachs & Co.
<PAGE>
<PAGE> 1
SCHEDULE IV
David M. Silfen 3,000 shares of Common Stock
Thomas J. Healey 100 shares of Common Stock
<PAGE> 1
EX. 4.1
[EXECUTION COPY]
WARRANT AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.
and
CHEMICAL BANK,
Warrant Agent
Dated as of December 18, 1994<PAGE>
<PAGE> i
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
<PAGE>
<PAGE> ii
Representative(s) ............................................ 5
SEC .......................................................... 5
Securities Act ............................................... 5
Shelf Registration ........................................... 5
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
<PAGE>
<PAGE> iii
5.8. Participation in Underwritten Offerings ...................... 26
5.9. Lock-Up Agreements ........................................... 26
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>
<PAGE> iv
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>
<PAGE> 1
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
<PAGE>
<PAGE> 2
principal corporate trust office of the Warrant 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.
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
<PAGE>
<PAGE> 3
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.
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
<PAGE>
<PAGE> 4
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 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.
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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.
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.
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<PAGE> 6
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.
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.
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<PAGE> 7
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 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.
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<PAGE> 8
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 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
<PAGE>
<PAGE> 9
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.
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.
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<PAGE> 10
(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 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:
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<PAGE> 11
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.
(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-offered Warrants for
Common Stock, (ii) an exchange of all outstanding nonpublicly-offered
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
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<PAGE> 12
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 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")
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<PAGE> 13
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.
(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
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<PAGE> 14
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.
(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.
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<PAGE> 15
(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").
(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
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<PAGE> 16
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.
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
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<PAGE> 17
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 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
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<PAGE> 18
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 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.
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<PAGE> 19
(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.
(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
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<PAGE> 20
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 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
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<PAGE> 21
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 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.
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<PAGE> 22
(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
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:
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<PAGE> 23
(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).
(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.
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<PAGE> 24
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 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).
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<PAGE> 25
(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).
(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
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<PAGE> 26
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 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
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<PAGE> 27
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.
(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 (other than the Registrable Common Stock covered
by such Registration Statement) 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.
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<PAGE> 28
(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 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.
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(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 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).
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<PAGE> 30
(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
"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, giving effect to any discount
attributable to any lack of liquidity of the Common Stock.
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<PAGE> 31
(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 Indebtedness 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 Indebtedness, 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 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
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<PAGE> 32
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 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
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<PAGE> 33
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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<PAGE> 34
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
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<PAGE> 35
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 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
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<PAGE> 36
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
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
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<PAGE> 37
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. 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
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<PAGE> 38
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
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.
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<PAGE> 39
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 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.
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<PAGE> 40
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).
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);
<PAGE>
<PAGE> 41
(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.
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
<PAGE>
<PAGE> 42
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.
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
<PAGE>
<PAGE> 43
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.
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. A 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
<PAGE>
<PAGE> 44
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.
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>
<PAGE> 45
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>
<PAGE> 1
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
<PAGE>
<PAGE> 2
Holder of this Warrant Certificate consents by acceptance hereof. The
Warrant Agreement is 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
<PAGE>
<PAGE> 3
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 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.
<PAGE>
<PAGE> 4
This Warrant Certificate and the Warrant Agreement are subject
to amendment as provided in the Warrant Agreement.
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>
<PAGE> 1
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>
<PAGE> 2
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>
<PAGE> 3
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>
<PAGE> 4
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>
<PAGE> 1
As of December 29, 1994
Chemical Bank, agent
430 West 33rd Street
New York, N.Y. 10001
Ladies and Gentlemen:
We refer to the Warrant Agreement dated as of December 18,
1994 (the "Warrant Agreement") between the undersigned (the "Company") and
you. Unless otherwise defined herein, the terms defined in the Warrant
Agreement shall be used herein as therein defined.
It is hereby agreed by you and us that the numerical
reference to the number of shares of common stock, par value $.01 per
share, of the Company for which the Warrants are exercisable in (i) the
preamble to the Warrant Agreement and (ii) Section 2.2 of the Warrant
Agreement should be deleted and replaced with "4,155,927".
You are hereby directed to exchange the Temporary Warrant
Certificate (No. 0001) issued in the name of Whitehall Street Real Estate
Limited Partnership V evidencing 4,156,927 Warrants, upon presentation
thereof, for a permanent Warrant Certificate(s) evidencing an aggregate of
4,155,927 Warrants.
On and after the effective date of this letter amendment,
each reference in the Warrant Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Warrant Agreement",
"thereunder", "thereof" or words of like import referring to the Warrant
Agreement, shall mean and be a reference to the Warrant Agreement as
amended by this letter amendment. The Warrant Agreement, as amended by
this letter amendment, is and shall continue to be in full force and effect
and is hereby in all respects ratified and confirmed.
Your agreement to this letter amendment will be evidenced by
the execution hereof. This letter amendment is subject to the provisions
of Section 12.10 of the Warrant Agreement.
<PAGE>
<PAGE> 2
This letter amendment may be executed in counterparts by the
parties hereto, each of which counterparts shall be an original and all of
which taken together shall constitute one and the same letter amendment.
Very truly yours,
ROCKEFELLER CENTER
PROPERTIES, INC.
By: /s/ Richard M. Scarlata
Richard M. Scarlata
Title: President and Chief
Executive Officer
Agreed as of the date
first above written:
CHEMICAL BANK
By: /s/ Michael A. Nespoli
Name: Michael A. Nespoli
Title: Vice President
Acknowledged as of the date
first above written:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General Partner
By: WH Advisors, Inc. V, General Partner
By: /s/ Ralph F. Rosenberg
Name: Ralph F. Rosenberg
Title: Vice President
<PAGE>
EX. 4.2
DEBENTURE PURCHASE AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.,
and
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
dated as of
December 18, 1994
<PAGE>
<PAGE> i
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-
<PAGE>
<PAGE> ii
Page
(i) 1985 Loan Agreement Default . . . . . . . . . . . 24
(j) Market Conditions . . . . . . . . . . . . . . . . 24
(k) Consent to Assignment . . . . . . . . . . . . . . 24
(l) Business Combination . . . . . . . . . . . . . . 24
3.02. Subsequent Issuances and Delivery of Debentures . . . . . 25
3.03. Obligation of the Company to Close . . . . . . . . . . . . 25
SECTION 4 REPRESENTATIONS AND WARRANTIES OF COMPANY . . . . . . . 25
4.01. Existence, Power and Ownership . . . . . . . . . . . . 25
4.02. Authorization . . . . . . . . . . . . . . . . . . . . . 25
4.03. No Violation or Conflicts . . . . . . . . . . . . . . . 25
4.04. Consents . . . . . . . . . . . . . . . . . . . . . . . 26
4.05. Enforceable Obligations . . . . . . . . . . . . . . . . 26
4.06. Financial Condition; Securities and Exchange
Commission Filings . . . . . . . . . . . . . . . . . . 26
4.07. No Default . . . . . . . . . . . . . . . . . . . . . . 27
4.08. Liens . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.09. Indebtedness . . . . . . . . . . . . . . . . . . . . . 27
4.10. Litigation . . . . . . . . . . . . . . . . . . . . . . 27
4.11. Material Agreements . . . . . . . . . . . . . . . . . . 27
4.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.13. Compliance with Law . . . . . . . . . . . . . . . . . . 28
4.14. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 28
4.15. Subsidiaries . . . . . . . . . . . . . . . . . . . . . 28
4.16. Use of Proceeds; Margin Stock . . . . . . . . . . . . . 28
4.17. Government Regulation . . . . . . . . . . . . . . . . . 29
4.18. Pari Passu Obligations . . . . . . . . . . . . . . . . 29
4.19. Ownership of Real Estate . . . . . . . . . . . . . . . 29
4.20. No Pending Condemnation or Eminent Domain . . . . . . . 30
4.21. Capitalization . . . . . . . . . . . . . . . . . . . . 30
SECTION 5 AFFIRMATIVE COVENANTS OF THE COMPANY . . . . . . . . . 30
5.01. Information Covenants . . . . . . . . . . . . . . . . . 30
(a) Annual Financial Statements . . . . . . . . . . . 30
(b) Auditor's Certificate . . . . . . . . . . . . . . 31
(c) Quarterly Financial Statements . . . . . . . . . . 31
(d) Officer's Certificate . . . . . . . . . . . . . . 32
(e) Auditor's Reports . . . . . . . . . . . . . . . . 32
(f) Real Estate and Other Information . . . . . . . . 32
(g) Other Information . . . . . . . . . . . . . . . . 32
(h) Notice of Default or Litigation . . . . . . . . . 32
(i) Changes to Indebtedness . . . . . . . . . . . . . 33
5.02. Preservation of Existence and Franchises . . . . . . . 33
5.03. Books, Records and Inspections . . . . . . . . . . . . 33
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Page
5.04. Compliance with Law . . . . . . . . . . . . . . . . . . 33
5.05. Insurance . . . . . . . . . . . . . . . . . . . . . . . 34
5.06. Maintenance of Property . . . . . . . . . . . . . . . . 34
5.07. Plan Assets . . . . . . . . . . . . . . . . . . . . . . 34
5.08. Intercreditor Agreement . . . . . . . . . . . . . . . . 34
5.09. Resale of Debentures . . . . . . . . . . . . . . . . . 34
SECTION 6 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . 36
6.01. Indebtedness . . . . . . . . . . . . . . . . . . . . . 36
6.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . . 36
6.03. Nature of Business . . . . . . . . . . . . . . . . . . 37
6.04. Consolidation, Merger, Sale or Purchase of Assets . . . 37
6.05. Advances, Investments and Loans . . . . . . . . . . . . 37
6.06. Transactions with Affiliates . . . . . . . . . . . . . 37
6.07. Operating Lease Obligations . . . . . . . . . . . . . . 38
6.08. Sale and Leaseback . . . . . . . . . . . . . . . . . . 38
6.09. Governing Documents . . . . . . . . . . . . . . . . . . 38
6.10. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 38
6.11. Dividends . . . . . . . . . . . . . . . . . . . . . . . 38
6.12. Modifications to Mortgage . . . . . . . . . . . . . . . 39
6.13. Modification or Payment of Indebtedness . . . . . . . . 39
6.14. Usury . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 7 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . 40
7.01. Events of Default . . . . . . . . . . . . . . . . . . . 40
(a) Payment . . . . . . . . . . . . . . . . . . . . . 40
(b) Representations . . . . . . . . . . . . . . . . . 40
(c) Covenants . . . . . . . . . . . . . . . . . . . . 40
(d) Other Agreements . . . . . . . . . . . . . . . . . 40
(e) Bankruptcy, etc . . . . . . . . . . . . . . . . . 41
(f) Defaults under Other Agreements . . . . . . . . . 41
(g) Judgments . . . . . . . . . . . . . . . . . . . . 42
7.02 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 42
(i) Acceleration of Debentures . . . . 42
(ii) Enforcement of Rights . . . . . . . . . . 42
(iii) Waiver of Past Defaults . . . . . . . . . 42
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Page
SECTION 8 REDEMPTION . . . . . . . . . . . . . . . . . . . . . . 43
8.01. Redemption . . . . . . . . . . . . . . . . . . . . . . 43
(a) Voluntary Redemption . . . . . . . . . . . . . . . 43
(b) Mandatory Redemptions . . . . . . . . . . . . . . 44
(c) Partial Redemption . . . . . . . . . . . . . . . . 44
(d) Notice of Redemption . . . . . . . . . . . . . . . 44
(e) Interest after Redemption Date . . . . . . . . . . 45
SECTION 9 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 45
9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . 45
9.02. Benefit of Agreement; Assignments and Participations . 45
9.03. No Waiver; Remedies Cumulative . . . . . . . . . . . . 46
9.04. Payment of Expenses; Indemnification . . . . . . . . . 46
9.05. Amendments, Waivers and Consents . . . . . . . . . . . 49
9.06. Counterparts . . . . . . . . . . . . . . . . . . . . . 49
9.07. Headings . . . . . . . . . . . . . . . . . . . . . . . 49
9.08. Survival of Indemnities . . . . . . . . . . . . . . . . 49
9.09. Governing Law; Submission to Jurisdiction; Venue . . . 49
9.10. Severability . . . . . . . . . . . . . . . . . . . . . 50
9.11. Entirety . . . . . . . . . . . . . . . . . . . . . . . 50
9.12. Survival of Representations and Warranties . . . . . . 51
Schedules
Schedule 3.01(g) - Fees
Schedule 4.09 - Indebtedness
Schedule 4.10 - Litigation
Schedule 4.11 - Material Agreements
Schedule 5.05 - Insurance
Exhibits
EXHIBIT A - Debenture
EXHIBIT B - Officer's Certificate
EXHIBIT C - Form of Assignment of Mortgages
EXHIBIT D - Form of Collateral Trust Agreement
EXHIBIT E - Form of Letter Agreement
EXHIBIT F - Form of Registration Rights Agreement
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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; provided, however, that so long as the Notes are outstanding, any
day that is not a " Business Day" under the Loan Agreement shall not be a
Business Day hereunder.
"Cash Equivalents" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having
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maturities of not more than six months from the date of acquisition,
(ii) U.S. dollar denominated time deposits and certificates of deposit of a
bank (an "Approved Bank") that is either (x) any domestic commercial bank
of recognized standing having capital and surplus in excess of $500,000,000
or (y) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof, in each case with maturities of not more than six
months from the date of acquisition, (iii) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued or guaranteed by any Approved
Bank rated at least A-1 (or the equivalent thereof) by S&P or at least P-1
(or the equivalent thereof) by Moody's and maturing within six months of
the date of acquisition, (iv) repurchase agreements with a bank or trust
company or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which the Company shall have a perfected
first priority security interest (subject to no other Liens) and having, on
the date of purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations, and (v) publicly traded short-term
notes, bonds and other obligations having short-term unsecured debt ratings
of at least A-1 (or the equivalent thereof) by S&P or at least P-1 (or the
equivalent thereof) by Moody's.
"Closing Date" has the meaning specified in Section 2.01 of the
Loan Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral Agent" means the Collateral Agent under the
Collateral Trust Agreement.
"Collateral Trust Agreement" means the Collateral Trust
Agreement in the form of Exhibit D hereto among the Collateral Agent, the
Agent, Whitehall, the Company and the Trustee, providing for the pledge of
the Mortgage Note and other Collateral as security for the Debentures, the
Loans and the Indenture Securities.
"Common Stock" means common shares, par value $.01, of the
Company.
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"Consistent Basis" or "consistent basis" means, with regard to
the application of accounting principles, accounting principles consistent
in all material respects with the accounting principles used and applied in
preparation of the financial statements previously delivered to the Holders
and referred to in Section 4.06.
"Debentures" has the meaning specified in the Recitals.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
thereunder.
"ERISA Affiliate" means each person (as defined in Section 3(9)
of ERISA) which together with the Company would be deemed to be a member of
the same "controlled group" within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
"Event of Default" has the meaning specified in Section 7.01
hereof.
"Generally Accepted Accounting Principles" or "generally
accepted accounting principles" means generally accepted accounting
principles in the United States in effect as of the date of this Agreement.
"Guaranty Obligations" means any obligations (other than
endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) guaranteeing any Indebtedness, leases, dividends
or other obligations of any other Person in any manner, whether direct or
indirect, and including, without limitation, any obligation, whether or not
contingent, (i) to purchase any such Indebtedness or other obligation or
any property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of such Indebtedness or
obligation or to maintain working capital, solvency or other balance sheet
condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements
or arrangements), (iii) to lease or purchase property, securities or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation, or
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(iv) to otherwise assure or hold harmless the owner of such Indebtedness or
obligation against loss in respect thereof.
"Holder" or "Holders" means a holder of any Debenture.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money,
(ii) the deferred purchase price of assets which in accordance with
generally accepted accounting principles would be shown to be a liability
(or on the liability side of a balance sheet) of such Person, (iii) all
Guaranty Obligations of such Person, (iv) the maximum amount of all letters
of credit issued or acceptance facilities established for the account of
such Person and, without duplication, all drafts drawn thereunder (other
than letters of credit (x) supporting other Indebtedness of such Person, or
(y) offset by a like amount of cash or government securities held in escrow
to secure such letter of credit and draws thereunder), (v) all capitalized
lease obligations of such Person, (vi) all indebtedness of another Person
secured by any lien on any property of such Person, whether or not such
indebtedness has been assumed, (vii) all obligations under take-or-pay or
similar arrangements or under interest rate swap, currency swap, or
commodities agreements of such Person, (viii) indebtedness created or
arising under any conditional sale or title retention agreement of such
Person, (ix) obligations of such Person with respect to withdrawal
liability or insufficiency in excess of $5,000,000 (calculated on an
accumulated benefit obligation basis) under ERISA or under any qualified
plan or related trust and (x) all other obligations which in accordance
with generally accepted accounting principles would be shown to be a
liability (or on the liability side of a balance sheet) of such Person;
provided, however, that Indebtedness shall not include trade payables and
accrued expenses arising or incurred in the ordinary course of business.
"Indenture Securities" means the securities of the Company
issued pursuant to the 1985 Indenture.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof among the Agent, the Lenders, Whitehall and the
Company.
"Interest Payment Date" means each June 2 and December 2 from
and after the date hereof until the Maturity Date and the Maturity Date.
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"Lenders" means the lender or lenders under the Loan Agreement.
"Letter Agreement" means the letter agreement in the form of
Exhibit E hereto regarding the assignment by the Company of its title
insurance benefits to the Collateral Agent.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any financing or similar statement or notice
perfecting a security interest under the Uniform Commercial Code as adopted
and in effect in the relevant jurisdiction, or other similar recording or
notice statute, and any lease in the nature thereof).
"Loan Agreement" means the Loan Agreement, dated as of the date
hereof, among the Company, the Lenders and the agent named therein.
"Loans" means the monies advanced to the Company by the Lenders
pursuant to the Loan Agreement.
"Loan Documents" means this Agreement, the Loan Agreement, the
Debentures, the Security Documents, the Collateral Trust Agreement, the
Intercreditor Agreement, the Registration Rights Agreement, the Letter
Agreement, the Notes, the Stock Appreciation Rights Agreement, the Stock
Appreciation Rights, the Warrant Agreement and the Warrants.
"Maturity Date" shall have the meaning given to such term in
Section 2.02(a) hereof.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means, collectively, the Mortgage and Security
Agreement, dated as of September 19, 1985, by RCPA and RCP to the Company,
the Consolidation, Extension, Modification and Spreader Agreement, dated as
of September 19, 1985, among RCPA, RCP and the Company, recorded with and
certified by the City Register of the City of New York, and the Assignment
of Rents, dated as of September 19, 1985, by RCPA and RCP to the Company,
recorded with and certified by the City Register of the City of New York,
each as amended from time to time.
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"Mortgage Note" means, collectively, the Mortgage Note, dated
as of September 19, 1985, in the amount of $1,255,160,004, in favor of the
Company and the Consolidated Mortgage Note, dated as of September 19, 1985,
in the amount of $44,839,996, each as amended from time to time.
"Net Cash Flow" means, for the period in question and based on
a cash basis of accounting (as modified to deduct accruals for any taxes
and insurance), (i) gross receipts and/or income related to the Mortgage
Note and Real Estate (including all rents, tax escrows, insurance proceeds,
condemnation proceeds, proceeds of debt financings, and any other receipts
or payments actually received by or on behalf of the Company under or in
connection with the Real Estate or the Mortgage Note except with respect to
tax escrows and condemnation and insurance proceeds legally or
contractually required to be paid over to another Person by the Company
whether or not within the period in question) and receipts from any other
source, including the net proceeds of any sale of equity by the Company,
minus (ii) the sum of (x) those actual operating, renting, administrative,
legal and other ordinary expenses incurred by the Company, (y) interest
paid or (without duplication) accrued (on a straight-line basis) with
respect to the Debentures, the Notes, the Indenture Securities and any
other Indebtedness permitted by Section 6.01, and (z) dividends paid or
(without duplication) accrued (on a straight-line basis) to holders of
Common Stock and distributions, if any, paid or (without duplication)
accrued (on a straight-line basis) to holders of the Warrants or the Stock
Appreciation Rights as permitted by Section 6.11; provided, however,
(A) for purposes of this calculation expenses specified in clause (x) shall
not include (except for the accruals described in the first parenthetical
of this definition) any non-cash charges of the Company, including, without
limitation, any depreciation or amortization; (B) amounts accrued in
respect of interest, dividends or distributions as specified in clauses (y)
or (z) above may not be used for any purpose other than such interest
payments, dividends or distributions, and, if not so used, such amounts
shall be included in the calculation of Net Cash Flow hereunder; and
(C) for the purposes of Section 2.03(b), Net Cash Flow shall be computed
without giving effect to the deduction provided for in clause (z) above.
"New Debt" has the meaning specified in Section 5.09.
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"New Documents" has the meaning specified in Section 5.09.
"NYSE" has the meaning specified in Section 3.01(j).
"1985 Indenture" means the Indenture, dated as of September 15,
1985 from the Company to United States Trust Company (as successor to
Manufacturers Hanover Trust Company), as Trustee, as amended by the First
Supplemental Indenture dated as of December 15, 1985, as further amended
from time to time.
"1985 Loan Agreement" means the Loan Agreement dated as of
September 19, 1985 among the Company, RCPA and RCP, as amended from time to
time.
"Notes" means, collectively, the floating rate promissory notes
of the Company executed in accordance with the Loan Agreement.
"Permitted Investments" means cash and Cash Equivalents.
"Permitted Liens" means (i) Liens created by the Collateral
Trust Agreement, Security Documents and the Letter Agreement or otherwise
created by, under or in connection with this Agreement or the other Loan
Documents in favor of the Collateral Agent; (ii) Liens for taxes not yet
due or Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves have been established (and as to
which the property subject to such Lien is not yet subject to foreclosure,
sale or loss on account thereof); (iii) Liens in respect of property
imposed by law arising in the ordinary course of business such as
materialmen's, mechanics', warehousemen's and other like Liens; provided
that such Liens secure only amounts not yet due and payable or amounts
being contested in good faith by appropriate proceedings for which adequate
reserves have been established (and as to which the property subject to
such lien is not yet subject to foreclosure, sale or loss on account
thereof); (iv) pledges or deposits made to secure payment under worker's
compensation insurance, unemployment insurance, pensions, social security
programs, public liability laws or similar legislation; (v) Liens arising
from good faith deposits in connection with or to secure performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
contracts, performance and return-of-money bonds and other similar
obligations incurred
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in the ordinary course of business (other than obligations in respect of
the payment of borrowed money); (vi) easements, rights-of-way, restrictions
(including zoning restrictions), defects or irregularities in title and
other similar charges or encumbrances not, in any material respect,
interfering with the ordinary course of business of the Company;
(vii) leases or subleases granted to others, whether existing now or
hereafter entered into, in the ordinary course of business, not in any
material respect interfering with the ordinary course of business or
operations of the Company; and (viii) any attachment or judgment lien,
unless the judgment it secures shall not, within 30 days after the entry
thereof, have been discharged or execution thereof stayed pending appeal,
or shall not have been discharged within 30 days after the expiration of
any such stay.
"Person" means any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise (whether or not
incorporated), or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means any multiemployer or tax-qualified single-employer
plan as defined in Section 4001 of ERISA.
"Plan Assets" means such term within the meaning and as defined
in the Department of Labor Regulation 29 CFR Section 2510.3-101, as amended,
and the advisory opinions or other administrative interpretations thereunder.
"Purchase Option" means the Purchase Option, dated as of
September 19, 1985, among RCPA, RCP and the Company.
"RCP" means Rockefeller Center Properties, a New York general
partnership.
"RCPA" means RCP Associates, a New York limited partnership.
"Real Estate" means the real property identified in Exhibit A
to the Mortgage and Security Agreement, dated as of September 19, 1985, by
RCPA and RCP to the Company, but excluding any Development Rights (as
defined therein) available to the land identified in Exhibit A and
Exhibit C thereto and the area identified in Exhibit B thereto.
"Redemption Date" has the meaning given to such term in Section
8.01(a).
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"Redemption Price" mean the product of the principal amount of
Debentures held by a Person and the applicable percentage (calculated as a
fraction) specified in Section 8.01(a)(ii).
"Registration Rights Agreement" means the Registration Rights
Agreement in the form of Exhibit F hereto among the Company, the Agent and
Whitehall.
"Regular Record Date" has the meaning given to such term in
Section 2.06.
"Regulation G, T, U or X" means, respectively, Regulation G, T,
U and X of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion thereof.
"REIT" has the meaning specified in Section 4.01(b).
"Required Holders" means Holders holding more than 50% of the
aggregate outstanding principal amount of the Debentures.
"Required SARs and Holders" means Holders and holders of Stock
Appreciation Rights holding collectively more than 50% of the sum of
(i) the outstanding principal amount of the Debentures, and (ii) the
principal amount of Debentures for which Stock Appreciation Rights on the
day of determination would then be exchangeable.
"SAR Agent" has the meaning given to such term in the Recitals.
"S&P" means Standard & Poor's Corporation.
"Security Documents" means the Assignment of Mortgage and the
letters of credit delivered in accordance with the Collateral Trust
Agreement.
"Security Register" has the meaning given to such term in
Section 2.08(a).
"Stock Appreciation Rights" has the meaning given to such term
in the Recitals.
"Stock Appreciation Rights Agreement" has the meaning given to
such term in the Recitals.
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"Subsequent Holder" means, with respect to each issuance of
Debentures pursuant to Section 2.01(b), each Person who after issuance and
delivery of such Debentures is a Holder.
"Subsequent Issue Date" shall mean the date of each issuance of
Debentures pursuant to Section 2.01(b).
"Subsidiary" of any Person means, with respect to such Person,
(i) any corporation more than 25% of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries, and
(ii) any partnership, association, joint venture or other entity in which
such Person directly or indirectly through Subsidiaries has more than 25%
equity interest at any time.
"Trustee" means United States Trust Company, as Trustee, under
the 1985 Indenture, or any successor trustee thereto.
"United States" means the United States of America, the
District of Columbia, Puerto Rico, the United States Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
"United States Alien" means any person not subject to United
States federal income tax on a net income basis federal income tax
purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a nonresident alien
individual or a nonresident alien fiduciary of a foreign estate or trust.
"Warrant Agent" means the Warrant Agent under the Warrant
Agreement.
"Warrant Agreement" means the Warrant Agreement dated the date
hereof between the Company and the Warrant Agent.
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"Warrants" means the warrants for the purchase of shares of the
Common Stock issued pursuant to the Warrant Agreement.
"Whitehall" has the meaning specified in the first paragraph of
this Agreement.
1.02. Computation of Time Periods. For purposes of
computation of periods of time hereunder, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding."
1.03. Accounting Terms. Accounting terms used but not
otherwise defined herein shall have the meanings provided, and be construed
in accordance with, generally accepted accounting principles.
SECTION 2
THE DEBENTURES
2.01. Issuance of Debentures. The Company agrees to issue and
sell, from time to time, the Debentures pursuant to the terms of this
Agreement.
The Debentures shall be executed on behalf of the Company by
its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Debentures may
be manual or facsimile.
Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Debentures or did not hold such offices at the date of such
Debentures.
(a) Issuance to Whitehall. On the Closing Date, subject to
the terms and conditions set forth herein (including, but not limited to,
the conditions specified in Section 3.01 of this Agreement), the Company
agrees to issue, sell and deliver to Whitehall and Whitehall agrees to
purchase and pay for Debentures in the aggregate principal amount of
$75,000,000.
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(b) Subsequent Issuances. Upon the date of notification from
the SAR Agent that a holder of Stock Appreciation Rights has elected to
exchange Stock Appreciation Rights for Debentures, the Company agrees it
will (i) as soon as practicable, and in any event within 5 days of notice
from the SAR Agent, satisfy the condition precedent to issuance contained
in Section 3.02, and (ii) issue and deliver Debentures, dated as of the
date of surrender of the certificate or certificates evidencing such Stock
Appreciation Rights in accordance with Section 4.4 of the Stock
Appreciation Rights Agreement (the "Surrender Date"), in the aggregate
principal amount to which such holder or holders of Stock Appreciation
Rights shall be entitled to the SAR Agent for delivery to the exchanging
holder of Stock Appreciation Rights; provided, that the obligations of the
Company under this Section 2.01(b) shall be subject to the terms and
conditions of the Stock Appreciation Rights Agreement. Any holder of Stock
Appreciation Rights surrendering certificates in accordance with the
previous sentence shall be deemed to be the Owner of all Debentures
received in exchange for such certificates as of and from the Surrender
Date, and shall have all the rights associated with such Debentures as of
and from the Surrender Date.
2.02. Maturity.
(a) Maturity Date. The Debentures shall mature on
December 31, 2007 (the "Maturity Date").
(b) Principal Payment. The Company agrees to pay the
outstanding principal amount of the Debentures, together with all accrued
but unpaid interest thereon and all other amounts owing from the Company to
the Holders, on the Maturity Date.
2.03. Interest.
(a) The Debentures shall bear interest at the rate of 14% per
annum from the date of issuance of each Debenture or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
as the case may be, payable semi-annually on June 2 and December 2,
commencing June 2, 1995, until the principal thereof is paid.
Notwithstanding the foregoing, upon the occurrence and during the
continuance of an Event of Default, the Debentures shall bear interest,
payable on demand, at a rate of 18% per annum. Except as otherwise
provided herein,
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accrued interest shall be payable in arrears on each Interest Payment Date.
(b) To the extent that Net Cash Flow shall be insufficient to
pay interest as provided above on any Interest Payment Date, the Company
shall not be obligated to pay interest on such date and such interest shall
accrue and shall compound semi-annually at the rate provided herein.
2.04. Denominations. The Debentures shall be issuable only in
registered form without coupons and only in denominations of U.S. $1,000
and any integral multiple thereof, substantially in the form of Exhibit A
attached hereto.
2.05. Form of Legend for Securities.
Unless otherwise permitted by Section 2.08, every Debenture
issued and delivered hereunder shall bear a legend in substantially the
following form:
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE
SECURITIES LAWS. SUCH SHARES MAY BE OFFERED, SOLD OR TRANSFERRED ONLY IN
COMPLIANCE WITH THE REQUIREMENTS OF SUCH ACT AND OF ANY APPLICABLE STATE
SECURITIES LAWS AND SUBJECT TO THE PROVISIONS OF THE DEBENTURE PURCHASE
AGREEMENT, DATED AS OF DECEMBER 18, 1994, BETWEEN ROCKEFELLER CENTER
PROPERTIES, INC. AND WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V. A
COPY OF SUCH DEBENTURE PURCHASE AGREEMENT IS AVAILABLE AT THE OFFICES OF
THE COMPANY.
2.06. Payments and Computations. All payments of principal or
interest hereunder shall be paid to the persons in whose names such
Debentures are registered on the Security Register at the close of business
on the date fifteen days prior to the related Interest Payment Date (the
"Regular Record Date"). Principal on any Debenture shall be payable
against surrender therefor and payments of interest on Debentures shall be
made, in accordance with this Agreement and subject to applicable laws and
regulations, by check mailed on or before the due date for such payment to
the person entitled thereto at such person's address appearing on the
Security Register (or, in the case of a Holder holding not less than
$5,000,000 aggregate principal amount of Debentures, by wire transfer to
such account as such Holder shall designate by written instructions
received by the Company no less than 15 days prior to any applicable
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<PAGE> 15
Interest Payment Date, which wire instruction shall continue in effect
until such time as the Holder otherwise notifies the Company or such Holder
no longer is the registered owner of such Debenture or Debentures). Subject
to the definition of Interest Period, whenever any payment hereunder shall
be stated to be due on a day which is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest and fees for the period of such extension). All
computations of interest and fees shall be made on the basis of actual
number of days elapsed over a year of 360 days. Interest on each Debenture
shall accrue from and include the Closing Date or Subsequent Issuance Date,
as the case may be, but exclude the date of payment. All payments received
from the Company hereunder shall be applied in the following order: first,
to the payment of any costs and expenses and other amounts due pursuant to
Section 9.04; second, to the payment of any amount due under this Agreement
other than any amount referred to in this sentence; third, to the ratable
payment of interest due on the Debentures; and fourth, to the ratable
payment of principal and premium, if any, due on the Debentures.
2.07. Withholding; Payment of Additional Amounts.
(a) The Company will pay to the Holder of any Debenture who is
a United States Alien such additional amounts ("Additional Amounts") as may
be necessary in order that every net payment of the principal of and
interest on such Debenture, after deduction or withholding for or on
account of any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States or any
political subdivision or taxing authority thereof or therein, will not be
less than the amount provided for in such Debenture to be then due and
payable; provided, however, that the foregoing obligation to pay Additional
Amounts will not apply to any one or more of the following:
(1) any tax, assessment or other governmental charge which
would not have been so imposed but for (i) the existence of any
present or former connection between such Holder (or between a
fiduciary, settlor, beneficiary or member of such Holder, if such
Holder is an estate, a trust or a partnership) and the United States,
including, without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been a citizen or
resident or treated as a resident thereof, or being or having been
engaged in
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<PAGE> 16
trade or business or present therein, or having or having had a permanent
establishment therein, or (ii) such Holder's present or former status as a
passive foreign investment company, a personal holding company, a foreign
personal holding company, or a controlled foreign corporation for United
States tax purposes or a corporation which accumulates earnings to avoid
United States federal income tax;
(2) any tax, assessment or other governmental charge imposed
on interest received by reason of such Holder's past or present
status as the actual or constructive owner (taking into account
attribution rules of Ownership under Section 871(h)(3) of the Code)
of 10% or more of the capital or profits interest in the Company;
(3) any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply with any
certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with
the United States of the Holder or beneficial owner of such Debenture
if compliance is required by statute or by regulation of the United
States Treasury Department as a precondition to exemption from such
tax, assessment or other governmental charge;
(4) any estate, inheritance, gift, sales transfer, personal
property or any similar tax, assessment or other governmental charge;
(5) any tax, assessment or other governmental charge which is
payable otherwise than by deduction or withholding from payments of
principal of or interest on such Debenture; or
(6) any tax, assessment or other governmental charge which
would not have been so imposed but for the presentation by the Holder
of such Debenture for payment on a date more than 15 days after the
date on which such payment became due and payable or the date on
which payment thereof is duly provided for, whichever occurs later;
nor will Additional Amounts be paid with respect to any payment of
principal of or interest on any such Debenture to any United States Alien
who is a fiduciary or partnership or
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<PAGE> 17
other than the sole beneficial owner of any such payment to the extent that
a beneficiary or settlor with respect to such fiduciary, a member of such a
partnership or the beneficial owner would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial
owner been the Holder of such Debenture.
(b) All references in this Agreement to principal and interest
in respect of Debentures shall, unless the context otherwise requires, be
deemed to mean and include all Additional Amounts, if any, payable in
respect thereof as set forth in this Agreement.
2.08. Registration, Registration of Transfer and Exchange,
Restriction on Transfer.
(a) Security Register. The Company shall maintain a register
(the "Security Register") for the registration or transfer of the
Debentures. The name and address of the Holder of each Debenture, records
of any transfers of the Debentures and the name and address of any
transferee of a Debenture shall be entered in the Security Register and the
Company shall, promptly upon receipt thereof, update the Security Register
to reflect all information received from a Holder. There shall be no more
than one Holder for each Debenture, including all beneficial interests
therein.
Upon surrender for registration of transfer of any Debenture at
the office or agency of the Company, the Company shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Debentures, of any authorized denominations and like aggregate principal
amount.
At the option of the Holder, Debentures may be exchanged for
other Debentures, of any authorized denominations and of like aggregate
principal amount, upon surrender of the Debentures to be exchanged at such
office or agency. Whenever any Debentures are so surrendered for exchange,
the Company shall execute and deliver the Debentures which the Holder
making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer of
exchange of Debentures shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Agreement, as the Debentures surrendered upon such registration of transfer
or exchange.
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Every Debenture presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debentures, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Debentures, other than exchanges pursuant to Article 8 not involving any
transfer.
If the Debentures are to be redeemed in part, the Company shall
not be required (A) to issue, register the transfer of or exchange any
Debenture during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such
Debentures selected for redemption under Section 8.01 and ending at the
close of business on the day of such mailing, or (B) to register the
transfer of or exchange any Debenture so selected for redemption in whole
or in part, except the unredeemed portion of any Debenture being redeemed
in part.
(b) Transfer Restrictions. No Debenture may be sold,
transferred or otherwise disposed of (any such sale, transfer or other
disposition is herein referred to as a "sale"), except in compliance with
this Section 2.08(b).
(i) A Holder may sell Debentures to a transferee that is an
"accredited investor" or a "qualified institutional buyer", as such
terms are defined in Regulation D and Rule 144A under the Securities
Act, respectively, provided that each of the following conditions is
satisfied:
(x) such Holder or transferee represents that it is
acquiring the Debenture or Debentures for its own account and
that it is not acquiring such Debenture or Debentures with a
view to, or for offer or sale in connection with, any
distribution thereof (within the meaning of the Securities Act)
that would be in violation of the securities laws of the United
States or any state thereof, but subject, nevertheless, to the
disposition of its property being at all times within its
control; and
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<PAGE> 19
(y) such transferee agrees to be bound by the provisions
of this Section 2.08(b) with respect to any sale of the
Debentures.
(ii) A Holder may sell its Debentures to a transferee in
accordance with Regulation S under the Securities Act; provided, that
each of the following conditions is satisfied:
(x) if such Holder would be deemed to be the Company, a
distributor or any of their respective affiliates or any person
acting on behalf of any of the foregoing for purposes of
Regulation S under the Securities Act:
(1) the Company is a "reporting issuer" as such
term is defined in Rule 902(l) under the Securities Act;
(2) any distributor (as defined in Rule 902(c)
under the Securities Act) involved in a sale of
Debentures has agreed in writing that all offers and
sales of Debentures shall be made only in accordance with
the provisions of Rule 903 or Rule 904 under the
Securities Act;
(3) all offering materials and documents (other
than press releases) used in connection with offers and
sales of the Debentures shall conform to the requirements
of Rule 902(h)(2) under the Securities Act; and
(4) each distributor (as defined in (2) above)
selling Debentures to a distributor, dealer (as defined
in Section 2(12) of the Securities Act), or a person
receiving a selling concession, fee or other remuneration
in respect of the Debentures sold sends a confirmation or
other notice to the purchaser stating that the purchaser
is subject to the same restrictions on offers and sales
that apply to a distributor prescribed by Regulation S
under the Securities Act.
(y) if such exercise and/or sale by a Holder is not
governed by (x) above:
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(1) the offer of Debentures is not made to a
person in the United States;
(2) either:
(A) at the time the buy order is originated, the
transferee is outside the United States or the Holder and any
person acting on its behalf reasonably believes that the
transferee is outside the United States, or
(B) the transaction is executed in, on or through the
facilities of a designated offshore securities market and
neither the Holder nor any person acting on its behalf knows
that the transaction was pre-arranged with a buyer in the
United States;
(3) no directed selling efforts are made in
contravention of the requirements of Rule 903(b) or
904(b) of Regulation S under the Securities Act, as
applicable; and
(4) the transaction is not part of a plan or
scheme to evade the registration requirements of the
Securities Act.
(iii) In the event of a proposed exercise or sale that does not
qualify under either Section 2.08(b)(i) or 2.08(b)(ii) above, a
Holder may sell its Debentures only if:
(x) such Holder gives written notice to the Company of its
intention to exercise or effect such sale, which notice (1) shall
describe the manner and circumstances of the proposed transaction in
reasonable detail and (2) shall designate the counsel for such
Holder, which counsel shall be reasonably satisfactory to the
Company;
(y) counsel for the Holder shall render an opinion, to the
effect that such proposed sale may be effected without registration
under the Securities Act or under applicable Blue Sky laws; and
(2) such Holder or transferee complies with Sections
2.08(b)(i)(x) and 2.08(b)(i)(y).
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(iv) Following any acquisition of the Equity Interest (as
defined in the 1985 Loan Agreement), a Holder may not sell Debentures
to a transferee if the consideration for such sale constitutes Plan
Assets, unless prior to such sale the Holder consults with the
Company and, after such consultation, determines in good faith that
the sale will not constitute a "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
2.09. Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Company, the
Company shall executed and deliver in exchange therefor a new Debentures of
the same principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company (i) evidence to its
satisfaction of the destruction, loss or theft of any Debenture and
(ii) such security or indemnity as may be required by then to save each of
it and any agent harmless, then, in the absence of notice that such
Debenture has been acquired by a bona fide purchaser, the Company shall
execute and deliver, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of a like principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith.
Every new Debenture issued pursuant to this Section in lieu of
any destroyed, lost or stolen Debenture shall constituted an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debenture shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Debentures duly issued
hereunder.
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The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
2.10. Persons Deemed Owners. Prior to due presentment of a
Debenture for registration of transfer, the Company and any agent of the
Company may treat the Person in whose name such Debenture is registered as
the owner of such Debenture for the purpose of receiving payment of
principal of and interest on such Debenture and for all other purposes
whatsoever, whether or not such Debenture be overdue and neither the
Company nor any agent of the Company shall be affected by notice to the
contrary.
2.11. Cancellation. All Debentures surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to
any Person other than the Company, be delivered to the Company and shall be
promptly cancelled by it. The Company shall cancel any Debentures
previously issued and delivered hereunder which the Company may have
reacquired.
SECTION 3
CONDITIONS PRECEDENT
3.01. Purchase of the Debentures. The obligation of Whitehall
to purchase Debentures pursuant to Section 2.01(a) is subject to
satisfaction (or waiver by Whitehall, provided, that Whitehall shall not
waive the condition set forth in Section 3.01(k) without the consent of the
Company which consent shall not be unreasonably withheld by the Company) on
or prior to the Closing Date of the following conditions (in form and
substance acceptable to Whitehall at or prior to the Closing Date) and the
Company agrees to use its best efforts to the extent possible to satisfy
such conditions as promptly as practicable after the date hereof:
(a) Executed Loan Documents. The other Loan Documents shall
have been duly executed and delivered by the parties thereto and Whitehall
shall have received executed copies of this Agreement and such other Loan
Documents, and the Loans shall have been made pursuant to the Loan
Agreement.
(b) Procedures Regarding Collateral. Completion to the
satisfaction of Whitehall of all steps necessary to create in favor of the
Collateral Agent a valid, binding and
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perfected first priority pledge of the Mortgage Note and Assignment of the
Mortgage (including recordation of the Assignment of Mortgage and all other
collateral provided for in the Collateral Trust Agreement).
(c) No Default; Representations and Warranties. Receipt by
Whitehall of a certificate signed by the President of the Company to the
effect that at the Closing Date (i) there shall exist no Default or Event
of Default, and (ii) all representations and warranties contained herein
and in the other Loan Documents then in effect shall be true and correct in
all material respects.
(d) Opinion of Counsel. Receipt by Whitehall of a legal
opinion, or opinions, in form and substance reasonably satisfactory to
Whitehall and dated as of the Closing Date, from legal counsel to the
Company as to the legal matters referred to in Section 4.
(e) Corporate Documents. Receipt by Whitehall of all
documents reasonably requested by the Whitehall relating to the existence
of the Company, the validity of the Loan Documents and other matters
relating thereto, in form and substance satisfactory to Whitehall,
including, but not limited to:
(i) Certificates of Authorization and Incumbency.
Certificate of the Secretary of the Company, dated as of the Closing
Date, as to resolutions approving and adopting the Loan Documents and
authorizing the execution and delivery thereof and as to the
authority of the persons executing such documents.
(ii) Certificates of Incorporation and By-laws. Copies
of the Certificate of Incorporation and By-laws of the Company,
together with all amendments thereto certified as of the Closing
Date.
(iii) Certificates of Good Standing or Existence.
Certificates of good standing or existence for the Company issued as
of a recent date by its state of organization and each other state
where the Company, by the nature of its business, is required to
qualify or register.
(f) Related Transactions. Closing of the transactions
relating to the issuance of the Notes, the
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Stock Appreciation Rights and the Warrants and review and approval by the
Agent of the documents relating thereto.
(g) Fees and Expenses. Payment to Whitehall and Goldman,
Sachs & Co. of the fees as set forth on Schedule 3.01(g) and reimbursement
to Whitehall of all expenses incurred in connection herewith shall be made
on the Closing Date. Such fee and expenses shall be paid out of the
proceeds of the purchase price of the Debentures.
(h) Other Documents. Receipt by Whitehall of such other
certificates and documents as it may reasonably request.
(i) 1985 Loan Agreement Default. No Event of Default under
the 1985 Loan Agreement, no event of the nature described in Section
5.01(a) of the Mortgage which with the giving of notice or lapse of time or
both would constitute such an Event of Default, and no event of the nature
described in Sections 5.01(f) and (g) of the New Mortgage (as defined in
the 1985 Loan Agreement) or Sections 5.01(e) and (f) of the Consolidated
Mortgage (as defined in the 1985 Loan Agreement) shall have occurred and be
continuing.
(j) Market Conditions. There shall be no (i) suspension or
material limitation in trading in securities generally on the New York
Stock Exchange (the "NYSE"); (ii) suspension or material limitation in
trading in the Company's securities on the NYSE; (iii) general moratorium
on commercial banking activities in New York declared by either Federal or
New York State authorities; or (iv) since November 21, 1994, outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Agent makes it
impracticable or inadvisable to proceed with the transactions contemplated
hereunder on the terms and in the manner contemplated herein.
(k) Consent to Assignment. The Company shall have obtained
the unconditional consent of RCP and RCPA to the assignment to the
Collateral Agent of the Mortgage and the Mortgage Note and such consent
shall be in full force and effect.
(l) Business Combination. Except with respect to the issuance
of the Warrants and the Stock Appreciation Rights, the Company shall not
have entered into any
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arrangement or agreement in respect of a "business combination" as defined
in the Certificate of Incorporation of the Company (but disregarding any
reference to an "Acquiring Person" in such definition).
3.02. Subsequent Issuances and Delivery of Debentures. In
connection with each Subsequent Issue, the Company shall deliver to each
Subsequent Holder a conformed copy of this Agreement.
3.03. Obligation of the Company to Close. The obligation of
the Company to close the purchase of the 14% Debentures contemplated hereby
is subject to Goldman Sachs Mortgage Company not being in default of its
obligation to close the purchase of the Notes.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company hereby represents and warrants that on the date
hereof and on the Closing Date (before and after giving effect to the
making of the Loans):
4.01. Existence, Power and Ownership.
(a) It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is in good
standing as a foreign corporation in each other jurisdiction where
ownership of its properties or the conduct of its business requires it to
be so, and it has all power and authority under such laws and its
certificate of incorporation and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted.
(b) It is subject to taxation as a real estate investment
trust (a "REIT") under Subchapter M of the Code and has satisfied all
requirements to continue to qualify as a REIT. It is not aware of any fact
or circumstance that could reasonably be expected to prevent it from
continuing to so qualify in the future.
4.02. Authorization. It has the corporate power and authority
to enter into this Agreement and the other Loan Documents and to perform
its obligations under and consummate the transactions contemplated by such
Loan
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Documents and has by proper action duly authorized the execution and
delivery of the Loan Documents.
4.03. No Violation or Conflicts. Neither the execution and
delivery of the Loan Documents, nor the consummation of the transactions
contemplated therein, nor performance of and compliance with the terms and
provisions thereof will (i) violate or conflict with any provision of its
certificate of Incorporation or By-laws, (ii) violate any law, regulation
(including without limitation Regulation G, T, U or X), order, writ,
judgment, injunction, decree or permit applicable to it, (iii) violate or
materially conflict with any contractual provisions of, or cause an event
of default under, any indenture, loan agreement, mortgage, deed of trust,
contract or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, or (iv) result in or
require the creation of any lien, security interest or other charge or
encumbrance (other than those contemplated in or in connection with the
Loan Documents) upon or with respect to its properties.
4.04. Consents. No consent, approval, authorization or order
of, or filing, registration or qualification with, any court or
governmental authority or other Person is required in connection with the
execution, delivery or performance of this Agreement or any of the other
Loan Documents, except for the consent of RCP and RCPA to the assignment to
the Collateral Agent of the Mortgage and the Mortgage Note and except for
any Hart-Scott-Rodino Act filings in connection with the exercise of the
Warrants.
4.05. Enforceable Obligations. This Agreement and the other
Loan Documents have been duly executed and delivered by the Company and
constitute legal, valid and binding obligations of the Company, enforceable
in accordance with their respective terms.
4.06. Financial Condition; Securities and Exchange Commission
Filings. (a) Since January 1, 1992, the Company has made all required
filings with the Securities and Exchange Commission, and such filings are
complete and correct in all material respects and do not contain any untrue
statement of a material fact or omit any material fact required to be
stated therein necessary to make the statements therein not misleading.
The financial statements of the Company contained in such filings are true
and correct and fairly present the financial condition and results of
operations of the Company as of their dates and
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for the respective periods covered thereby; such financial statements were
prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as noted therein); and since the date
of such financial statements, except as disclosed in such filings with the
Securities and Exchange Commission made on or prior to the date hereof,
there have occurred no changes or circumstances which have had or are
likely to have a material adverse effect on the Company and the financial
statements referenced above.
(b) The Company has delivered to the Agent true and correct
copies of correspondence between the Company and the Securities and
Exchange Commission relating to the Company's filing on Form 10-K for the
year ended December 31, 1993.
4.07. No Default. No Default or Event of Default presently
exists.
4.08. Liens. Except for Permitted Liens, it has good and
marketable title to all of its properties and assets free and clear of all
Liens.
4.09. Indebtedness. It has no Indebtedness (including,
without limitation, any Guaranty Obligations) except for the Notes, the
Debentures and the other Indebtedness specified on Schedule 4.09 hereto.
4.10. Litigation. Except as specified in Schedule 4.10
hereto, there are no actions, suits or legal, equitable, arbitration or
administrative proceedings (including those relating to environmental
matters), pending or, to the knowledge of the Company threatened, against
the Company which, if adversely determined, would have a material adverse
effect on the financial condition of the Company. The Company is not aware
of any fact or condition in respect of the Real Estate that could
reasonably be expected to result in any such action, suit, or proceeding or
in the incurrence of any material liability in respect of environmental
matters.
4.11. Material Agreements. Except as specified in
Schedule 4.11 hereto or except with respect to agreements filed as exhibits
to its filings with the Securities and Exchange Commission prior to the
date hereof, it is not a party to any material contract, lease, loan
agreement, indenture, mortgage, security agreement or other material
agreement or obligation other than (i) the Loan Documents,
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(ii) the documents evidencing the Indebtedness described in Section 4.09,
and (iii) the Mortgage, Mortgage Note, 1985 Loan Agreements and any
agreement or obligation relating to the mortgage loan evidenced by the
foregoing. Except as specified in Schedule 4.11 hereto or except as
disclosed in its filings with the Securities and Exchange Commission prior
to the date hereof, it is not engaged in any negotiations with, and has no
plans or intention to enter into any other agreements, or modifications of
agreements, with RCP or RCPA.
4.12. Taxes. It has filed, or caused to be filed, all
material reports and returns with respect to taxes (federal, state, local
and foreign) required to be filed and such reports and returns were true,
complete and accurate in all material respects and it has paid all amounts
of taxes shown thereon to be due (including interest and penalties) and has
paid all other material taxes, fees, assessments and other governmental
charges (including documentary stamp taxes and intangible taxes) owing (or
necessary to preserve any Liens in favor of the Collateral Agent), by it,
except for such taxes (i) which are not yet delinquent or (ii) as are being
contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with generally
accepted accounting principles, but only so long as there is no material
liability or any risk of material loss, sale or forfeiture of any
collateral pledged to the Collateral Agent. It is not aware of any
proposed material tax assessments against it. No extension of time for
assessment or payment by the Company of any federal, state or local tax is
in effect. All mortgage recording taxes in respect of the Mortgage have
been paid.
4.13. Compliance with Law. It is in compliance with all laws,
rules, regulations, orders and decrees applicable to it or to its
properties.
4.14. ERISA. Except for the Retirement Income Plan for
Salaried Employees of Rockefeller Group, Inc., as amended and supplemented
in the ordinary course of business from time to time (the "RGI Plan"),
neither it nor its ERISA Affiliates have established, maintained or been
obligated to contribute to any Plan at any time during the five calendar
years preceding the Closing Date.
4.15. Subsidiaries. It has no Subsidiaries other than
Deucalion Capital Corporation, a Delaware corporation.
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4.16. Use of Proceeds; Margin Stock. It will use the proceeds
of the Sale of Debentures hereunder on the Closing Date solely to retire
its outstanding commercial paper, to pay fees and expenses in connection
with this Agreement and to satisfy the interest rate swap agreements
specified in paragraph B. of Schedule 4.09; provided, that, if any such
commercial paper may not be prepaid on the Closing Date, the Company will
place sufficient funds for prepayment in full thereof in escrow with the
applicable paying agent. None of such proceeds will be used for the
purpose of purchasing or carrying any "margin stock" as defined in
Regulation G, T, U, or X or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry "margin
stock" or for any other purpose which might constitute this transaction a
"purpose credit" within the meaning of Regulation G, T, U, or X. As of the
Closing Date the Company does not own any "margin stock".
4.17. Government Regulation. It is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power
Act, or the Interstate Commerce Act, each as amended. In addition, it is
not (i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not controlled
by such a company, or (ii) a "holding company," or a "Subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"Subsidiary" or a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.18. Pari Passu Obligations. The obligations of the Company
hereunder and under the Debentures and under the Loan Agreement and the
Notes rank and will at all times rank pari passu with all other obligations
of the Company in respect of its unsubordinated indebtedness for borrowed
money, and there is no indebtedness for borrowed money of the Company
senior to the Debentures or the Notes.
4.19. Ownership of Real Estate. The Company has good and
marketable title to the Mortgage Note, the Mortgage, the letters of credit
(as specified on Schedule II to the Collateral Trust Agreement (the
"Letters of Credit")) and the Title Insurance, free and clear of all liens,
except (i) the liens to be granted pursuant to the Loan Documents and (ii)
the restrictions on transfer contained in the 1985 Loan Agreement, the
Letters of Credit and the Title Insurance. The Company has not granted to
any other person any rights, recorded or unrecorded, in the Mortgage or the
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Mortgage Note. To the best of the Company's knowledge, no person, other
than the Company, has any right or option, recorded or unrecorded, to
acquire the Real Estate or any portion thereof or interest therein. The
Mortgage remains a valid lien on all the Real Estate and on the Lessor's
interest in all Leases (as defined in the Mortgage), with a priority in all
material respects no less than its priority as of September 19, 1985 except
as such priority may be affected by the subordination referred to in clause
(ii) of Recital G to the amendment and restatement of the Mortgage dated as
of December 1, 1988, the outstanding aggregate principal amount of the
Mortgage Note is $1,300,000,000, and no default exists thereunder.
4.20. No Pending Condemnation or Eminent Domain. The Company
has no knowledge of any pending or threatened condemnation or eminent
domain proceedings which would affect the Real Estate.
4.21. Capitalization. As of the date hereof, the Company's
authorized capital stock consists of 150,000,000 shares of Common Stock and
38,260,704 shares of Common Stock were issued and outstanding, no shares of
Common Stock were held in treasury, and there were no outstanding employee
stock options. The Common Stock constitutes all of the issued and
outstanding capital stock of the Company. There are no other classes of
capital stock of the Company authorized or outstanding. The outstanding
Common Stock is duly authorized, validly issued, fully paid and non-
assessable. Except for the transactions contemplated by the Loan Documents
and except in respect of the Indenture Securities, there are no preemptive
or other outstanding rights, options, warrants, conversion rights or
agreements or commitments of any character relating to the Company's
authorized and issued, unissued or treasury shares of capital stock, and
the Company has not issued any debt securities, other securities, rights or
obligations that are currently outstanding and are convertible into or
exchangeable for, or giving any Person a right to subscribe for or acquire,
capital stock of the Company.
SECTION 5
AFFIRMATIVE COVENANTS OF THE COMPANY
The Company hereby covenants and agrees that so long as this
Agreement is in effect and until the Debentures, together with interest,
fees and other obligations hereunder, have been paid in full:
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5.01. Information Covenants. The Company will furnish, or
cause to be furnished, to each Holder:
(a) Annual Financial Statements. As soon as available and in
any event within 90 days after the close of each fiscal year of the
Company, a balance sheet of the Company as at the end of such fiscal year
together with related statements of income and retained earnings and of
cash flows for such fiscal year, all in reasonable detail and examined by
independent certified public accountants of recognized national standing
whose opinion shall be to the effect that such financial statements have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except for changes with which such
accountants concur) and shall not be qualified as to the scope of the
audit, all of the foregoing to be in reasonable detail and in form and
substance satisfactory to the Holder.
(b) Auditor's Certificate. At the time of delivery of the
financial statements provided for in Section 5.01(a) hereof, a certificate
from the accountants examining such financial statements, that, to the best
of their knowledge, no Event of Default exists, or, if any Event of Default
does exist, providing a reasonably detailed summary of all relevant
information known to such accountants.
(c) Quarterly Financial Statements. As soon as available and
in any event within 45 days after the end of each fiscal quarter of each
fiscal year of the Company, (i) except for the fourth fiscal quarter of
each fiscal year, a balance sheet of the Company as at the end of such
quarterly period together with related statements of income and retained
earnings for such quarterly period and for the portion of the fiscal year
ending with such period, all in reasonable detail and in form and substance
satisfactory to Required Holders, and accompanied by a certificate of the
President of the Company as being true and correct and as having been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis, subject to changes resulting from audit and
normal year-end audit adjustments, (ii) a report showing the calculation of
Net Cash Flow for such fiscal quarter and (iii) estimates made in good
faith by the Company of the items specified in (ii) above relating to the
next fiscal quarter. For so long as the Company is required to file
reports pursuant to the Securities Exchange Act of 1934, the Company may
satisfy its obligations under Section 5.01(a) and 5.01(c)(i) hereof by
delivery to Whitehall, within the time periods specified in
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such Sections, of copies of its reports on Form 10-K and Form 10-Q,
respectively, with the Securities and Exchange Commission.
(d) Officer's Certificate. At the time of delivery the
financial statements provided for in Section 5.01(c) hereof, a certificate
of the President of the Company substantially in the form of Exhibit B to
the effect that no Default or Event of Default exists, or, if any Default
or Event of Default does exist, specifying the nature and extent thereof
and what action the Company proposes to take with respect thereto.
(e) Auditor's Reports. Promptly upon receipt thereof, a copy
of any other report or management letter submitted by independent
accountants to the Company in connection with any annual, interim or
special audit of the books of Company.
(f) Real Estate and Other Information. Promptly upon receipt
thereof, copies of all financial information, reports and other documents
received by the Company pursuant to the 1985 Loan Agreement and the
Mortgage, including without limitation, all documents delivered to Company
pursuant to Sections 6.05 and 6.08 of the 1985 Loan Agreement and Sections
704 and 1010 of the Mortgage.
(g) Other Information. With reasonable promptness upon
request, such other information regarding the business, properties or
financial condition of the Company as any Holder may reasonably request,
including without limitation copies or summaries of, as the case may be,
all non-routine correspondence to or from and summaries of contacts and
conversations with RCP, RCPA or any of their affiliates, subject to
compliance with any applicable confidentiality restrictions agreed to in
good faith.
(h) Notice of Default or Litigation. Upon the Company
obtaining knowledge thereof, it will give written notice to each Holder
promptly, but in any event within five Business Days, of the occurrence of
any of the following with respect to the Company: (i) the occurrence of an
event or condition consisting of a Default, specifying the nature and
existence thereof and what action the Company proposes to take with respect
thereto, (ii) the pendency or commencement of any litigation, arbitral or
governmental proceeding against the Company in which damages are sought or
environmental remediation demanded which exceeds $1,000,000 in any instance
or $5,000,000 in the aggregate or
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which might otherwise materially adversely affect the business, properties,
assets, condition (financial or otherwise) or prospects of the Company,
(iii) any levy of an attachment, execution or other process against its
assets in excess of $1,000,000, (iv) the occurrence of an event or
condition which shall constitute a default or event of default under any
other agreement for borrowed money in excess of $1,000,000, (v) any
development in its business or affairs which has resulted in, or which the
Company reasonably believes may result in, a material adverse effect on the
business, properties, assets, condition (financial or otherwise) or
prospects of the Company, (vi) the institution of any proceedings against,
or the receipt of notice of potential liability or responsibility for any
violation, or alleged violation of, any federal, state or local law, rule
or regulation, the violation of which could give rise to a material
liability, or have a material adverse effect on, the business, assets,
properties condition (financial or otherwise) or prospects of the Company,
or (vii) the occurrence of an event or condition which may render the
Company unable to qualify as a REIT under the Code.
(i) Changes to Indebtedness. Within 30 days prior thereto,
notice of any proposed extension, renewal, refinancing or modification of
Indebtedness made pursuant to Section 6.01(iv) or Section 6.14.
5.02. Preservation of Existence and Franchises. The Company
will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights, franchises and authority and
will at all times take all reasonable steps necessary to qualify to be
taxed as a REIT as long as a REIT is accorded substantially the same
treatment under the United States income tax laws from time to time in
effect as under Sections 856-860 of the Code, in effect at the date of this
Agreement, as originally executed.
5.03. Books, Records and Inspections. The Company will keep
complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of generally accepted
accounting principles applied on a consistent basis (including the
establishment and maintenance of appropriate reserves). The Company will
permit, on reasonable notice, any Holder to visit and inspect its books of
account and records and any of its properties or assets and to discuss the
affairs, finances and accounts of the Company with, and be advised as
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to the same by, its officers, directors and independent accountants.
5.04. Compliance with Law. The Company will comply in all
material respects with all applicable laws, rules, regulations and orders
of, and all applicable restrictions imposed by, all applicable governmental
bodies, foreign or domestic, or authorities and agencies thereof (including
quasi-governmental authorities and agencies), in respect of the conduct of
its business and the ownership of its property.
5.05. Insurance. Except as specified in Schedule 5.05, the
Company will at all times maintain in full force and effect insurance
(including worker's compensation insurance, liability insurance, casualty
insurance and business interruption insurance) in such amounts, covering
such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
5.06. Maintenance of Property. The Company will maintain and
preserve its properties and assets in good repair, working order and
condition, normal wear and tear excepted, and will make, or cause to be
made, in such properties and assets from time to time all repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
5.07. Plan Assets. The Company will use its best efforts to
not take any action that would cause it to be deemed to hold Plan Assets at
any time.
5.08. Intercreditor Agreement. The Company will comply with
the terms of the Intercreditor Agreement in respect of payments to be made
in respect of the Debentures and the Notes notwithstanding that such terms
may alter the provisions set forth herein, in the Debentures, in the Loan
Agreement or in the Notes. Each Holder agrees by accepting a Debenture to
be bound by the terms and provisions of the Intercreditor Agreement as if
such Holder were a party thereto.
5.09. Resale of Debentures. The Company, upon the request of
the Required Holders from time to time, will exchange the Debentures for
any other evidences of indebtedness or debt securities, whether notes,
debentures
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or otherwise (the "New Debt"), and shall enter into any such agreements,
whether in the form of an amendment hereto, an indenture, a debenture
purchase agreement or otherwise (the "New Documents"), as shall be deemed
necessary or desirable by the Required Holders in connection with the
resale of the Debentures, whether as a private placement, a registered
public offering or otherwise, provided only that the aggregate principal
amount of the New Debt shall be equal to the unpaid principal amount of the
Debentures at the time of exchange and the business terms (including
aggregate interest) of the New Documents shall be substantially the same as
the business terms (including affirmative and negative covenants) contained
herein. Notwithstanding the foregoing, it is understood by the parties
that (a) the New Debt shall be in such denominations and tranches and have
such other features (including, without limitation, intercreditor and/or
priority arrangements) as may be deemed appropriate by the Required
Holders, (b) the New Documents will contain additional terms and provisions
governing the voting rights of the holders of the New Debt including the
requirement of unanimous approval of the holders of New Debt for waivers or
amendments in respect of Section 6.12 and any release of security for the
New Debt, in each case, to the extent desired by the Required Holders, any
provision relating to payment of interest, repayment of principal or
payment of any fees or indemnities and any other provisions customarily so
treated, (c) the New Documents will contain such additional terms and
provisions as are customarily contained in such documents governing the
issuance of debt including provisions governing the rights of indenture
trustees and/or administrative agents and bank set-off and sharing
provisions, as applicable, (d) the New Documents will contain such other
additional terms and provisions as are reasonably requested by the Required
Holders in order to effectuate the resale of the Debentures and such other
additions hereto or variations herefrom as are requested by any rating
agency rating the New Debt, including, without limitation, requiring
accrual of payments that are due in escrow or trust accounts, except to the
extent otherwise prohibited by the 1985 Indenture and except that no such
escrow shall be required in respect of regularly scheduled payments on
account of the Debentures and (e) the New Documents will be in such form
and will contain such terms and provisions as are necessary to comply with
all applicable securities laws, including, in the case of an indenture, the
Trust Indenture Act of 1939, as amended. In furtherance of the foregoing,
the Company will provide the Required Holders with all such documents and
information, financial or otherwise, assist in all such due diligence and
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do such other things and enter into such other agreements as are necessary
or, in the judgment of the Required Holders, desirable to resell the
Debentures and carry out the intent of this Section 5.09. The term
"Holder" or "Required Holders" as used in this Agreement shall include any
trustee for an indenture pursuant to which the New Debt is issued.
SECTION 6
NEGATIVE COVENANTS
The Company hereby covenants and agrees that so long as this
Agreement is in effect and until the Debentures, together with all
interest, fees and other obligations hereunder, have been paid in full:
6.01. Indebtedness. The Company will not contract, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness arising under this Agreement and the other
Loan Documents;
(ii) Current liabilities for taxes and assessments incurred
or arising in the ordinary course of business;
(iii) Indebtedness in respect of current accounts payable or
accrued (other than for borrowed money or purchase money obligations)
and incurred in the ordinary course of business; provided, that all
such liabilities, accounts and claims shall be paid when due (or in
conformity with customary trade terms);
(iv) Indebtedness in effect on the date hereof (as
specified in Schedule 4.09) and any extensions, renewals or
refinancings thereof in an amount not to exceed the outstanding
accreted amount thereof on the date of refinancing; provided that no
such Indebtedness may be renewed, extended or refinanced if, as a
result thereof, quarterly debt service of the Company would be
materially increased or Net Cash Flow of the Company would be
materially decreased;
(v) Unsecured Indebtedness in an aggregate amount not to
exceed $10,000,000 at any time outstanding incurred by the Company to
cover working capital needs; and
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(vi) Indebtedness in respect of issuances of Debentures
pursuant to Section 2.01(b).
6.02. Liens. Except with respect to Permitted Liens, the
Company will not (i) contract, create, incur, assume or permit to exist any
Lien with respect to any of its property or assets of any kind (whether
real or personal, tangible or intangible), whether now owned or hereafter
acquired, (ii) sell any of its property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to it) or (iii) assign any right to receive income.
6.03. Nature of Business. The Company (i) will not alter the
character or conduct of its business from that conducted and contemplated
as of the Closing Date which is and shall be limited to the ownership and
management of the Mortgage, the Mortgage Note and the partnership interests
in any partnership which owns the Real Estate and (ii) will not permit its
Subsidiary to engage in any business activity whatsoever or to own any
assets or incur any liabilities.
6.04. Consolidation, Merger, Sale or Purchase of Assets. The
Company will not dissolve, liquidate, or wind up its affairs, and will not
enter into any transaction of merger or consolidation, or sell or otherwise
dispose of all or any part of its property or assets or, other than in the
ordinary course of its business, purchase, lease or otherwise acquire (in a
single transaction or a series of related transactions) all or any part of
the property or assets of any Person, except that the Company may merge or
be consolidated with any other U.S. corporation so long as (i) the Company
shall be the surviving corporation, (ii) after giving effect to any such
transaction, no Default or Event of Default shall exist, including, without
limitation, any Default in respect of Section 6.03, and (iii) the surviving
corporation shall have a number of authorized, issued and outstanding
shares of capital stock no greater than that of the Company immediately
prior to such transaction.
6.05. Advances, Investments and Loans. The Company will not
lend money or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any Person except for Permitted Investments.
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6.06. Transactions with Affiliates. The Company will not
enter into any transaction or series of transactions with any stockholder,
employee or Affiliate other than on terms and conditions substantially as
favorable to the Company as would be obtainable by it in a comparable
arm's-length transaction with a Person other than a stockholder, employee
or Affiliate, except for employment contracts and other employee benefit
plans and arrangements entered into in the ordinary course of business and
approved by the compensation committee of the Board of Directors of the
Company, and arrangements with directors approved by the Board of Directors
of the Company.
6.07. Operating Lease Obligations. The Company will not enter
into, assume or permit to exist any obligations for the payment of rent for
any property (real, personal or mixed, tangible or intangible) under
leases, subleases or similar arrangements as lessee, except for the
Company's leases for office space on reasonable terms.
6.08. Sale and Leaseback. The Company will not enter into any
arrangement pursuant to which it will lease back, as lessee, any property
(real, personal or mixed, tangible or intangible) previously owned by it
and sold or otherwise transferred or disposed of, directly or indirectly,
to the owner-lessor of such property.
6.09. Governing Documents. The Company will not propose or
initiate any action in respect of any amendment, modification, supplement,
waiver or termination of any provisions of its Certificate of Incorporation
or By-Laws, except for an amendment to its Certificate of Incorporation to
eliminate or modify the "Limit" provided for in Article Ninth (A) thereof.
6.10. ERISA. Except for the RGI Plan, the Company will not
establish any Plan or take any actions that would cause it to become
obligated under any Plan.
6.11. Dividends. The Company will not declare or pay any
dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, Common Stock, (i) subject to clauses
(ii) and (iii) below, in an amount in excess of $.80 per share per annum,
adjusted to reflect any stock splits, stock dividends or similar
transactions, unless and to the extent required to meet qualification rules
for a REIT requiring distributions of 95% (or such other percentage as may
be
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required by a change in the Code applicable to REITs) (such required
distributions are referred to herein as "REIT Distributions"), (ii) at any
time when a payment default exists under the Mortgage, the Mortgage Note or
the 1985 Loan Agreement except for REIT Distributions and (iii) if the
Company shall not qualify to be taxed as a REIT under the Code. The
Company will not make any payment on account of a Warrant or Stock
Appreciation Right in an amount per share in excess of the positive
difference between (x) any amounts per share paid to holders of Common
Stock pursuant to the preceding sentence and (y) $.60 per annum, adjusted
to reflect any stock splits, stock dividends or similar transactions;
provided, that this Section 6.11 shall not operate to prevent the exercise
of Warrants or conversion of Stock Appreciation Rights in accordance with
their respective terms or any payment on 14% Debentures issued on
conversion of Stock Appreciation Rights.
6.12. Modifications to Mortgage. The Company will not amend
or in any way waive or modify any payment provision of the Mortgage or the
Mortgage Note and will not amend Article X of the 1985 Loan Agreement or
the Purchase Option.
6.13. Modification or Prepayment of Indebtedness. The Company
will not modify any Indebtedness if (i) quarterly debt service of the
Company would be materially increased or Net Cash Flow of the Company would
be materially decreased as a result thereof or (ii) the business,
properties, assets, condition (financial or otherwise) or prospects of the
Company might otherwise be materially adversely affected. The Company will
not prepay or acquire any of its Indebtedness (other than as required by
the terms thereof as in effect on the date hereof or permitted hereunder in
respect of the Debentures or under the Loan Agreement in respect of the
Notes and except for the Indebtedness permitted under Section 6.01(v)) and
will cause to remain outstanding in full force and effect until their
respective termination dates the interest rate swap agreements specified in
paragraph A of Schedule 4.09.
6.14. Usury. The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this
Debenture Purchase Agreement; and the Company (to the extent that it may
lawfully do so) hereby
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expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to any Holder, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 7
EVENTS OF DEFAULT
7.01. Events of Default. An Event of Default shall exist upon
the occurrence of any of the following specified events (each an "Event of
Default"):
(a) Payment. The Company shall (i) default in the payment
when due of any principal owing hereunder or under the Debentures
(including any mandatory redemption required hereunder or any
voluntary redemption after giving notice thereof in accordance with
Section 8.01), or (ii) default in the payment when due of any
interest, fees or other amounts owing hereunder, under the
Debentures, the Security Documents, the Collateral Trust Agreement or
the Letter Agreement or in connection herewith and such default
referred to in this subparagraph (ii) shall continue unremedied for
at least ten days; or
(b) Representations. Any representation, warranty or
statement made on the date hereof or deemed to be made as of the
Closing Date by the Company herein or in any of the Security
Documents, the Collateral Trust Agreement or the Letter Agreement or
in any statement or certificate delivered or required to be delivered
pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was made or deemed to have been made; or
(c) Covenants. The Company shall (i) default in the due
performance or observance of any term, covenant or agreement
contained in Section 5.01(h)(i) or in Section 6 (other than
Sections 6.06, 6.07 and 6.10), or (ii) default in the due performance
or observance by it of any term, covenant or agreement (other than
those referred to in subsection (a), (b) or (c) (i) of this Section
7.01) contained in this Agreement, and such default referred to in
this subparagraph (ii) shall continue unremedied for a period of at
least 30 days after notice from any Holder of such default; or
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<PAGE> 41
(d) Other Agreements. The Company shall default in the due
performance or observance of any term, covenant or agreement in the
Security Documents, the Collateral Trust Agreement or the Letter
Agreement (subject to applicable grace or cure periods, if any)
applicable to it, or the Security Documents, the Collateral Trust
Agreement or the Letter Agreement shall fail to be in full force and
effect or to give the Collateral Agent and the Holders, the Liens,
rights, powers and privileges purported to be created thereby (except
insofar as such failure is due to the act of the Collateral Agent or
any Holder); or
(e) Bankruptcy, etc. (i) The Company shall commence a
voluntary case concerning itself under the Bankruptcy Code in
Title 11 of the United States Code (as amended, modified, succeeded
or replaced, from time to time, the "Bankruptcy Code"); or (ii) an
involuntary case is commenced against the Company under the
Bankruptcy Code and the petition is not dismissed within 90 days
after commencement of the case; or (iii) a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of all or
substantially all of the property of the Company; or (iv) the Company
commences any other proceeding under any reorganization, arrangement,
adjustment of the debt, relief of creditors, dissolution, insolvency
or similar law of any jurisdiction whether now or hereafter in effect
relating to the Company; or (v) there is commenced against the
Company any such proceeding which remains undismissed for a period of
90 days after commencement of such proceeding; or (vi) the Company is
adjudicated insolvent or bankrupt; or (vii) any order of relief or
other order approving any such case or proceeding is entered; or
(viii) the Company suffers appointment of any custodian or the like
for it or for any substantial part of its property and such
appointment continues unchanged or unstayed for a period of 90 days
after commencement of such appointment; or (ix) the Company makes a
general assignment for the benefit of creditors; or (x) any corporate
action is taken by the Company for the purpose of effecting any of
the foregoing; or
(f) Defaults under Other Agreements. (i) The Company shall
(x) default in any payment in an amount of $1,000,000 or more (beyond
the applicable grace period with respect thereto, if any) with
respect to any other Indebtedness, or (y) default in the
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observance or performance of any agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition shall occur
or condition exist, the effect of which default, in the case of (y), or
other event or condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is
required), any such Indebtedness, in an amount of $1,000,000 or more, to
become due prior to stated maturity, or (ii) any such Indebtedness of the
Company, in an amount of $1,000,000 or more, shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof.
(g) Judgments. One or more final judgments or decrees shall
be entered against the Company involving a liability of $1,000,000 or
more in any instance, or $5,000,000 or more in the aggregate for all
such judgments and decrees collectively (not paid or fully covered by
insurance provided by a carrier who has acknowledged coverage) and
any such judgments or decrees shall not have been vacated,
discharged, paid or stayed or bonded pending appeal within the time
permitted to appeal therefrom.
7.02 Remedies. Upon the occurrence of an Event of Default,
the Required Holders, by written notice to the Company, may take any of the
following actions without prejudice to its rights to enforce its claims
against the Company, except as otherwise specifically provided for herein:
(i) Acceleration of Debentures. Declare the unpaid
principal of and any accrued interest in respect of the Debentures to
be due whereupon the same shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Company;
(ii) Enforcement of Rights. Enforce any and all Liens and
security interests in favor of the Holders in respect of the
Debentures and any other amounts due, including, without limitation,
all rights and interests created and existing under the Security
Documents, the
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Collateral Trust Agreement and the Letter Agreement and all rights of
set-off; and
(iii) Waiver of Past Defaults. The Holders of not less than
a majority in principal amount of the outstanding Debentures may on
behalf of the Holders of all the Debentures waive any past default
hereunder, except a default:
(1) in the payment of the principal of or any interest
on any Debenture, or
(2) in respect of a covenant or provision hereof which
under Section 9.05 cannot be modified or amended without the
consent of the Holder of each outstanding Debenture.
Upon any such waiver, such default ceases to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Agreement; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
provided, however, that, notwithstanding the foregoing, if an Event of
Default specified in Section 7.01(e) shall occur, then the Debentures shall
immediately become due and payable without the giving of any notice or
other action by any Holder.
SECTION 8
REDEMPTION
8.01. Redemption.
(a) Voluntary Redemption. (i) Provided the Notes have been
paid in full or funds for such payment have been irrevocably deposited with
an agent (reasonably satisfactory to the Agent) for such payment, the
Company shall have the right to redeem the Debentures at any time on or
after December 30, 2000 in whole or in part upon 30 days advance written
notice in accordance with Section 8.01(d) to each Holders which notice
shall specify the date on which the Company will effect such redemption (a
"Redemption Date").
(ii) Debentures redeemed from December 30, 2000 through
December 31, 2001, inclusive, shall be redeemed at 105% of the principal
amount of Debentures redeemed; debentures redeemed from January 1, 2002
through
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December 31, 2002, inclusive, shall be redeemed at 103% of the principal
amount of Debentures redeemed; debentures redeemed from January 1, 2003
through December 31, 2003, inclusive, shall be redeemed at 101.5% of the
principal amount of Debentures redeemed; and Debentures redeemed thereafter
shall be redeemed at 100% of the principal amount of Debentures redeemed,
in each case with interest accrued to the date of redemption.
(b) Mandatory Redemptions. On each Interest Payment Date
prior to December 31, 2000, provided that the Notes have been paid in full,
the Company shall redeem Debentures in an aggregate amount equal to Net
Cash Flow calculated as of the last day of the most recent fiscal quarter
at 100% of the aggregate principal amount of the Debentures redeemed.
(c) Partial Redemption. (i) If less than all of the then
outstanding Debentures are to be redeemed on any Redemption Date, the
Company shall (x) include in the notice provided to the Holders pursuant to
Section 8.01(d) the principal amount of Debentures then outstanding and the
principal amount of Debentures to be redeemed and (y) effect such
redemption (to the extent practicable within $1,000 increments) on a pro
rata basis.
(ii) Any Debenture which is to be redeemed only in part shall
be surrendered at the place specified in the notice delivered to Holders
pursuant to Section 8.01(d) (with due endorsement by, or a written
instrument of transfer in form satisfactory to the Company duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute and deliver to the Holder of such Debenture without
service charge, a new Debenture or Debentures of any authorized
denomination as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Debenture so surrendered.
(d) Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder, at his
address appearing in the Security Register (as defined below).
All notices of redemption shall state:
(i) the Redemption Date,
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(ii) the Redemption Price,
(iii) that on the Redemption Date the Redemption Price
will become due and payable upon each Debenture and that interest
thereon will cease to accrue on and after said date, and
(iv) that the place or places where each Debenture is to
be surrendered for payment of Redemption Price.
Notice of redemption of Debentures to be redeemed at the
election of the Company shall be given by the Company and at the expense of
the Company and shall be irrevocable.
(e) Interest after Redemption Date. On any Redemption Date in
which the then outstanding Debentures are to be redeemed in whole, the then
outstanding Debentures shall become due and payable at the Redemption
Price, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Debentures
shall cease to bear interest. Upon surrender of any such Debenture for
redemption in accordance with the notice specified in Section 8.01(d), such
Debenture shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date. If any Debenture called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal shall, until paid, bear interest from the Redemption Date at the
rate plus such additional rate prescribed in Section 2.03.
SECTION 9
MISCELLANEOUS
9.01. Notices. Except as otherwise expressly provided herein,
all notices and other communications shall have been duly given and shall
be effective (i) when delivered, (ii) when transmitted via telecopy (or
other facsimile device) to the number set out below, (iii) the day
following the day on which the same has been delivered prepaid to a
reputable national overnight air courier service or (iv) the third Business
Day following the day on which the same is sent by certified or registered
mail, postage prepaid, in each case to the respective parties at the
address set forth below, or at such other address as such party may specify
by written notice to the other party hereto:
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<PAGE> 46
if to the Company: 1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telephone: 698-1440
Telecopy: 698-1453
if to the Holders: at the addresses set forth in the Security
Register
9.02. Benefit of Agreement; Assignments and Participations.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that the Company may not assign and transfer
any of its interests without prior written consent of each Holders.
Nothing in this Agreement or in the Debentures, express or
implied, shall give to any Person other than the parties hereto and the
holders from time to time of Stock Appreciation Rights, any benefit or any
legal or equitable right, remedy or claim under this Agreement.
9.03. No Waiver; Remedies Cumulative. No failure or delay on
the part of any Holder in exercising any right, power or privilege
hereunder or under the Security Documents, the Collateral Trust Agreement
or the Letter Agreement and no course of dealing between the Company and
any Holder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under the
Security Documents, the Collateral Trust Agreement or the Letter Agreement
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies
which the Holders would otherwise have. No notice to or demand on the
Company in any case shall entitle the Company to any other or further
notice or demand in similar or other circumstances or constitute a waiver
of the rights of the Holders to any other or further action in any
circumstances without notice or demand.
9.04. Payment of Expenses; Indemnification. The Company
agrees to:
(i) pay all reasonable out-of-pocket costs and expenses of
Whitehall and the Holders in connection
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with the negotiation, preparation, execution and delivery and
administration of this Agreement, the Security Documents, the Collateral
Trust Agreement and the Letter Agreement and the documents and instruments
referred to therein and in connection with the exchange of the Debentures
for the New Debt, the negotiation, preparation, execution and delivery of
any New Documents as contemplated by Section 5.09 (including, without
limitation, the fees and expenses of Sullivan & Cromwell and any indenture
trustee, administrative agent or like parties in respect of the New Debt,
and the resale of the New Debt and the reasonable travel expenses of
employees of Whitehall and any Holder) and any amendment, waiver or consent
relating hereto or thereto including, but not limited to, any such
amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Company
under this Agreement and of the Holders in connection with enforcement of
the Security Documents, the Collateral Trust Agreement and the Letter
Agreement and the documents and instruments referred to therein (including,
without limitation, the fees and disbursements of counsel for the Company);
(ii) pay and hold the Holders harmless from and against any
and all present and future stamp and other similar taxes with respect
to the foregoing matters and save the Holders harmless from and
against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to the
Holders) to pay such taxes;
(iii) indemnify the Holders, their respective officers,
directors, partners, employees, representatives, affiliates and
agents from and hold each of them harmless against any and all
losses, liabilities, claims, damages or expenses incurred by any of
them as a result of, or arising out of, or in any way related to, or
by reason of, any investigation, litigation or other proceeding
(whether or not any Holder is a party thereto) related to the
entering into and/or performance of this Agreement, the Security
Documents, the Collateral Trust Agreement or the Letter Agreement or
the use of proceeds of the Debentures hereunder or the consummation
of any other transactions contemplated in this Agreement, the
Security Documents, the Collateral Trust Agreement or the Letter
Agreement (including the resale of the Debentures and the
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<PAGE> 48
exchange of the Debentures as contemplated by Section 5.09), including,
without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or other
proceeding, as the same are incurred (but excluding any such losses,
liabilities, claims, damages or expenses to the extent incurred by reason
of gross negligence or willful misconduct on the part of the Person to be
indemnified); and
(iv) if the indemnification provided for in Section
9.04(iii) is unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to
therein, then the Company shall contribute to the amount paid or
payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Holders on
the other from the consummation of the transactions contemplated in
this Agreement. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law,
then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Holders on the
other in connection with the actions which resulted in such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Holders on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the Debentures (before
deducting expenses) received by the Debentures bear to the net fees
paid in accordance with Section 3.01(g) and retained by the
indemnified Holders. The relative fault shall be determined by
reference to, among other things, whether the action of the Company
on the one hand or the Holders on the other and the parties relative
intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Holders
agree that it would not be just and equitable if contributions
pursuant to this subsection (iv) were determined by any method of
allocation which does not
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<PAGE> 49
take account of the equitable considerations referred to above in this
subsection (iv). The amounts paid or payable by an indemnified party as a
result of the losses, liabilities, claims, damages or expenses (or actions
in respect thereof) referred to above in this subsection (iv) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim, as the same are incurred. The Company's and the Holders'
obligations in this subsection (iv) to contribute are several and not
joint.
Neither Whitehall nor any of its directors, officers, agents or employees
shall be liable to the Company for any action taken or omitted to be taken
by it or any of them under or in connection with any Loan Document, except
for gross negligence or willful misconduct attributable to such Person.
9.05. Amendments, Waivers and Consents. Any provision of this
Agreement, the Debentures, the Security Documents, the Collateral Trust
Agreement or the Letter Agreement may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Company and the
Required Holders and SARs; provided, that no such amendment, waiver or
modification shall, unless signed by all the Holders and holders of then
outstanding Stock Appreciation Rights (i) subject any Holder to any
additional obligation, (ii) reduce the principal of or rate of interest on
any Debenture or any fees hereunder, (iii) postpone the date fixed for any
payment of principal of or interest on any Debenture or any fees hereunder,
(iv) change the percentage of the aggregate unpaid principal amount of the
Debentures, or the number of Holders, and if applicable, holders of Stock
Appreciation Rights, which shall be required for the Holders, and if
applicable, holders of Stock Appreciation Rights or any of them to take any
action under this Section 9.05 or any other provision of this Agreement,
(v) release all or substantially all of the collateral for the Debentures
or (vi) amend or waive the provisions of Section 6.12 or this Section 9.05.
9.06. Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall
be an original, but all of which shall constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
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9.07. Headings. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
9.08. Survival of Indemnities. All indemnities set forth
herein, including, without limitation, in Section 9.04, shall survive the
execution and delivery of this Agreement, the issuance of the Debentures,
and the payment of principal of the Debentures and other obligations
hereunder.
9.09. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Nothing herein shall
affect the right of any Holder to commence legal proceedings or to
otherwise proceed against the Company in any other jurisdiction.
(b) The Company hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Agreement,
the Security Documents, the Collateral Trust Agreement or the Letter
Agreement brought in the courts referred to in subsection (a) hereof and
hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) THE COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
9.10. Severability. If any provision of this Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid
or unenforceable provisions.
9.11. Entirety. This Agreement together with the other Loan
Documents represents the entire agreement of the parties hereto and
thereto, and supersedes all prior
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agreements and understandings, oral or written, if any, relating to the
Documents or the transactions contemplated herein; provided, however, that
nothing shall affect the obligations of the Company to Goldman, Sachs &
Co., Whitehall (and their respective affiliates) under the letter of
intent, dated November 17, 1994, among the Company, Goldman, Sachs & Co.
and Whitehall.
9.12. Survival of Representations and Warranties. All
representations and warranties made by the Company herein shall survive
issuance and delivery of the Debentures hereunder.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the
date first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By:/s/ Richard M. Scarlata
Richard M. Scarlata
President and CEO
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP
By: W.H. Advisors L.P. V,
General Partner
By: WH Advisors, Inc. V,
General Partner
By:/s/ Daniel M. Neidich
Daniel M. Neidich
President
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<PAGE> 1
SCHEDULE 3.01(g)
Fees
An origination fee of 2% of the aggregate principal amount of
the Debentures issued and purchased on the Closing Date is payable to
Whitehall, and an advisory fee of 1% of the aggregate principal amount of
the Debentures issued and purchased on the Closing Date is payable to
Goldman, Sachs & Co.
<PAGE>
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SCHEDULE 4.09
Indebtedness
A. Outstanding Indebtedness
Current Coupon Convertible Debentures due
2000 $213,170,000
Zero Coupon Convertible Debentures due 2000 326,863,314(1)
Letter of Credit supporting Company's
Commercial Paper Program 200,000,000
Accrued interest payable in connection with
Current Coupon Convertible Debentures
due 2000 50,954,187(2)
Dividends payable December 30, 1994 5,739,106(3)
Interest rate swaps (See Part C(i)) 19,046,677(4)
$815,773,284
(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
B. Outstanding Indebtedness to be repaid on or after Closing Date
Letter of Credit supporting Company's
Commercial Paper Program $200,000,000
Interest rate swaps (See Part C(ii)) 13,005,995
$213,005,995
1 of 3
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<TABLE>
SWAPS
30-Nov-94
<CAPTION>
Mark-to-
Financial Notional Maturity RCPI Net Receipt/ Floating Market
C(i) Institution Principal Date Receives RCPI Pays (Payment) Net Rate Rate Re-sets 30-Nov-94
SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AIG Finan Pr 5(30,000,000) 14-Jan-98 5.37500% 1,612,500 9.84000% (2,952,000) (1,339,500) 4.46500% 1/14, 7/14 (2,040,072)
Barclay's 6(25,000,000) 12-Mar-98 5.31250% 1,328,125 9.33000% (2,332,500) (1,004,375) 4.01750% 3/12, 9/12 (1,231,010)
Barclay's 8(50,000,000) 20-Apr-98 5.81250% 2,906,250 9.68500% (4,842,500) (1,936,250) 3.87250% 4/20, 10/20 (2,769,600)
(105,000,000) 5.56845% 5,846,875 9.64476% (10,127,000) (4,280,125) 4.07631% (6,040,682)
</TABLE>
<TABLE>
(ii) SWAPS to be settled on or after closing date
<CAPTION>
Liability
swaps SWAP # Float Rate Fixed Rate
<S> <C> <C> <C> <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) 3.82750% 2/2, 8/2 (954,295)
Chase Manhat 1(30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,500) 5.10500% 6/21, 12/21 (3,028,516)
Chase Manhat 2(30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,5000) 5.10500% 6/22, 12/22 (3,025,333)
Chase Manhat 3(20,000,000) 05-Oct-99 5.06250% 1,012,500 9.84000% (1,968,000) (955,500) 4.77750% 6/29, 12/29 (1,853,551)
Chemical Ban 9(50,000,000) 10-Jun-99 5.81250% 2,906,250 9.73600% (4,868,000) (1,961,750) 3.92350% 4/20, 10/20 (3,581,000)
Bank of Amer 4(30,000,000) 30-Jun-97 5.25000% 1,575,000 9.84190% (2,952,570) (1,377,570) 4.59190% 1/12, 7/12 (1,906,000)
(180,000,000) 5.26736% 9,481,250 9.78032% (17,604,570) (8,123,320) 4.51296% $14,348,695)
</TABLE>
2 of 3
<PAGE>
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<TABLE>
(ii) SWAPS to be settled on or after closing date (cont'd.)
(cont.)
<CAPTION>
Mark-to-
Financial Notional Maturity RCPI Net Receipt/ Market
Institution Principal Date Receives RCPI Pays (Payment) Net Rate Floating Rate Re-sets 30-Nov-94
SWAP # Fixed Rate Float Rate
<C> <C><C> <C> <C> <C> <C> <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 3.76250% 2/16, 5/16, 8/16, 11/16 113,700
Chemical Ban 4 5,000,000 29-Mar-96 9.23000% 461,500 5.25000% (262,500) 199,000 3.98000% 3/29, 6/29, 9/29, 12/29 161,000
Chemical Ban 3 5,000,000 15-Sep-96 9.24500% 462,250 5.06250% (253,125) 209,125 4.18250% 3/15, 6/15, 9/15, 12/15 135,000
Bank of Amer 8 5,000,000 15-Feb-96 9.43000% 471,500 5.81250% (290,625) 180,875 3.61750% 2/15, 5/15, 8/15, 11/15 245,000
Bank of Amer 5 5,000,000 19-Sep-96 9.47000% 473,500 5.06250% (253,125) 220,375 4.40750% 3/21, 6/21, 9/21, 12/21 191,000
Bank of Amer 7 5,000,000 30-Sep-97 9.56000% 478,000 5.26560% (263,280) 214,720 4.29440% 3/30, 6/30, 9/30, 12/30 241,000
Bank of Amer 6 5,000,000 15-Apr-98 9.58700% 479,350 5.62500% (281,250) 198,100 3.96200% 1/17, 4/17, 7/17, 10/17 256,000
35,000,000 9.46029% 3,311,100 5.43080% (1,900,780) 1,410,320 4.02949% 1,342,700
<S> <C>
SWAPS to be settled on or after closing date (13,005,995)
<S> <C>
Total at 11/30/94 (19,046,677)
</TABLE>
3 of 3
<PAGE>
<PAGE> 1
SCHEDULE 4.10
Litigation
Bear Stearns & Co. Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation have threatened to initiate litigation against the Company to
recover an investment banking fee in the amount of approximately $4 million
claimed to be due from the Company to such firms.
<PAGE>
<PAGE> 1
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.
<PAGE>
<PAGE> 1
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>
<PAGE> 1
EXHIBIT A
Debenture
[Form of Face of Debenture.]
..............
No. ......... $ ........
Rockefeller Center Properties, Inc., a corporation duly
organized and existing under the laws of Delaware (herein called the
Company , which term includes any successor Person under the Debenture
Purchase Agreement hereinafter referred to), for value received, hereby
promises to pay to ......................................, or registered
assigns, the principal sum of ......................................
Dollars on December 31, 2007. This Debenture shall bear interest on the
unpaid principal amount hereof from the date hereof or from the most recent
Interest Payment Date to which interest has been paid at the rate of 14%
per annum until the principal hereof is paid. Such interest shall be paid
semi-annually on June 2 and December 2 in each year, commencing June 2,
1995, except as otherwise provided in Section 2.03(b) of the Debenture
Purchase Agreement. Notwithstanding the foregoing, upon the occurrence and
during the continuance of an Event of Default, the rate of interest borne
by this Debenture shall be 18% per annum, compounded semi-annually. The
interest payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is regis-
tered at the close of business on the Regular Record Date for such
interest, which shall be the May 15 or November 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of
this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any
A-1
<PAGE>
<PAGE> 2
securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and any such
interest on this Security will be made at the office or agency of the
Company maintained for that purpose in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts provided, however, that at the option of the
Company payment of interest may be made by check drawn on a member of the
New York Clearing House Association mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
Rockefeller Center Properties, Inc.
By...................................................
Attest:
.........................................
A-2
<PAGE>
<PAGE> 3
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued
under a Debenture Purchase Agreement, dated as of December 18, 1994 (herein
called the "Debenture Purchase Agreement"), between the Company and
Whitehall Street Real Estate Limited Partnership V, a Delaware limited
partnership and reference is hereby made to the Debenture Purchase
Agreement for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
issued and delivered.
The Securities of this series are subject to redemption upon
not less than 30 days' notice by mail, at any time on or after December 30,
2000, as a whole or in part, at the election of the Company, at the
following redemption prices (expressed as percentages of the principal
amount): If redeemed from December 30, 2000 through December 31, 2001,
inclusive, 105%; from January 1, 2002 through December 31, 2002, inclusive
103%; from January 1, 2003 through December 31, 2003, inclusive, 101.5%;
and thereafter at a price equal to 100%, together in the case of any such
redemption with accrued interest to the Redemption Date. The Securities
are also subject to mandatory redemption as provided in the Debenture
Purchase Agreement.
The Debenture Purchase Agreement permits, with certain
exceptions as therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights of the Holders
of the Securities under the Debenture Purchase Agreement at any time by the
Company with the consent of the Required Holders and SARs (as defined in
the Debenture Purchase Agreement. The Debenture Purchase Agreement also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities and Stock Appreciation Rights (as
defined in the Debenture Purchase Agreement) on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with cer-
tain provisions of the Debenture Purchase Agreement. Any such consent or
waiver by any Holder shall be conclusive and binding upon such Holder and
upon all future Holders of this Security (including holders of Stock
Appreciation Rights) and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
A-3
<PAGE>
<PAGE> 4
No reference herein to the Debenture Purchase Agreement and no
provision of this Security or of the Debenture Purchase Agreement shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Debenture Purchase Agreement and subject to
certain limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in any
place where the principal of interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Debenture Purchase Agreement and subject to
certain limitations therein set forth, Securities are exchangeable for a
like aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company and any agent of the Company may treat the Person in
whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company
nor any such agent shall be affected by notice to the contrary.
By accepting this Debenture the Holder agrees to be bound by
the terms and provisions of the Intercreditor Agreement as if such Holder
were a party thereto.
A-4
<PAGE>
<PAGE> 5
All terms used in this Security which are defined in the
Debenture Purchase Agreement shall have the meanings assigned to them in
the Debenture Purchase Agreement.
A-5
<PAGE>
<PAGE> 1
EXHIBIT B
Officer's Certificate
I, Richard A. Scarlata, the President of Rockefeller Center
Properties, Inc. (the "Company"), hereby certify that, to the best of my
knowledge, with respect to that certain Debenture Purchase Agreement
between the Company and Whitehall Street Real Estate Limited Partnership V,
dated as of December __, 1994, as of the date hereof no Default or Event of
Default has occurred and is continuing.
This the __th day of _________, 19__.
_________________________
Richard A. Scarlata
President
B-1
<PAGE>
<PAGE> 1
EXHIBIT C
Form of Assignment of Mortgage
[See EXHIBIT A to Collateral Trust Agreement which is attached as Exhibit
D]
C-1
<PAGE>
<PAGE> 1
EXHIBIT D
COLLATERAL
TRUST AGREEMENT
by and among
ROCKEFELLER CENTER PROPERTIES, INC.
and
BANKERS TRUST COMPANY
and
GARY R. VAUGHAN,
Trustees
______________
Dated as of December 29, 1994
D-1
<PAGE>
<PAGE> i
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 . . . . . . . . . . . . . . . 8
Section 2.1. Actionable Default . . . . . . . . . . . . . . 8
Section 2.2. Remedies . . . . . . . . . . . . . . . . . . . 9
Section 2.3. Right to Initiate Judicial Proceedings, Etc. . 10
Section 2.4. Appointment of a Receiver . . . . . . . . . . . 10
Section 2.5. Exercise of Powers . . . . . . . . . . . . . . 11
Section 2.6. Control by Lenders . . . . . . . . . . . . . . 11
Section 2.7. Remedies Not Exclusive . . . . . . . . . . . . 11
Section 2.8. Waiver of Certain Rights . . . . . . . . . . . 12
Section 2.9. Borrower's and Trustee's Rights as to
Collateral; Limitation on Trustee's
Duties in Respect of Collateral. . . . . 12
Section 2.10. Limitation by Law . . . . . . . . . . . . . . . 13
Section 2.11. Absolute Rights of Holders . . . . . . . . . . 13
Section 2.12. Equal and Ratable Security . . . . . . . . . . 13
SECTION 3 COLLATERAL ACCOUNT; APPLICATION OF MONEYS . . . . . . . . . 13
Section 3.1. The Collateral Account . . . . . . . . . . . . 13
Section 3.2. Control of Collateral Account . . . . . . . . . 14
Section 3.3. Investment of Funds Deposited in Collateral
Account . . . . . . . . . . . . . . . . . 14
Section 3.4. Application of Moneys. . . . . . . . . . . . . 15
Section 3.5. Application of Moneys Distributable to
Holders of Public Debt . . . . . . . . . 16
SECTION 4 AGREEMENTS WITH TRUSTEE . . . . . . . . . . . . . . . . . . 16
Section 4.1. Delivery of Debt Instruments . . . . . . . . . 16
Section 4.2. Information as to Holders. . . . . . . . . . . 16
Section 4.3. Compensation and Expenses . . . . . . . . . . . 17
D-2
<PAGE>
<PAGE> ii
Section 4.4. Stamp and Other Similar Taxes . . . . . . . . . 17
Section 4.5. Filing Fees, Excise Taxes, Etc. . . . . . . . . 17
Section 4.6. Indemnification . . . . . . . . . . . . . . . . 17
Section 4.7. Further Assurances . . . . . . . . . . . . . . 18
SECTION 5 THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.1. Acceptance of Trust . . . . . . . . . . . . . . 18
Section 5.2. Exculpatory Provisions . . . . . . . . . . . . 18
Section 5.3. Delegation of Duties . . . . . . . . . . . . . 19
Section 5.4. Reliance by Trustee . . . . . . . . . . . . . . 19
Section 5.5. Limitations on Duties of Trustee . . . . . . . 20
Section 5.6. Moneys to Be Held in Trust . . . . . . . . . . 21
Section 5.7. Resignation and Removal of the Trustee . . . . 21
Section 5.8. Status of Successors to the Corporate
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 5.9. Merger of the Corporate Trustee . . . . . . . . 22
Section 5.10. Additional Co-Trustees; Separate Trustees . . . 22
SECTION 6 RELEASE OF COLLATERAL . . . . . . . . . . . . . . . . . . . 24
Section 6.1. Condition to Release . . . . . . . . . . . . . 24
Section 6.2. Procedure for Release . . . . . . . . . . . . . 24
Section 6.3. Effective Time of Release . . . . . . . . . . . 25
Section 6.4. Release of Certain Collateral . . . . . . . . . 25
SECTION 7 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.1. Amendments, Supplements and Waivers . . . . . . 26
Section 7.2. Notices . . . . . . . . . . . . . . . . . . . . 27
Section 7.3. Headings . . . . . . . . . . . . . . . . . . . 28
Section 7.4. Severability . . . . . . . . . . . . . . . . . 28
Section 7.5. Treatment of Payee or Indorsee by Trustee;
Acknowledgment of
Intercreditor Agreement . . . . . . . . . . . . . 28
Section 7.6. Dealings with the Borrower . . . . . . . . . . 29
Section 7.7. Claims Against the Trustee . . . . . . . . . . 29
Section 7.8. Binding Effect . . . . . . . . . . . . . . . . 29
Section 7.9. Conflict with Other Agreements . . . . . . . . 29
Section 7.10. Powers of Individual Trustee . . . . . . . . . 29
Section 7.11. Streit Act . . . . . . . . . . . . . . . . . . 30
Section 7.12. Governing Law . . . . . . . . . . . . . . . . . 30
Section 7.13. Counterparts . . . . . . . . . . . . . . . . . 30
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
D-3
<PAGE>
<PAGE> iii
ACKNOWLEDGMENTS
D-4
<PAGE>
<PAGE> 1
COLLATERAL TRUST AGREEMENT
COLLATERAL TRUST AGREEMENT ("Agreement") dated as of December
29, 1994 by and among ROCKEFELLER CENTER PROPERTIES, INC., a Delaware
corporation (the "Borrower"), Bankers Trust Company, New York banking
corporation (the "Corporate Trustee"), and Gary R. Vaughan (the "Individual
Trustee") (the Corporate Trustee and the Individual Trustee being herein
referred to collectively as the "Trustee"), trustees for the Holders of the
Secured Debt referred to below.
WITNESSETH:
WHEREAS, the Borrower and the New Private Lenders are entering
into the New Agreements;
WHEREAS, to induce the New Private Lenders to enter into the
New Agreements, the Borrower has agreed to secure, subject to the terms and
conditions of this Agreement and the Security Documents, the payment of the
Secured Debt; and
WHEREAS, the effectiveness of the New Agreements is conditioned
upon this Agreement and the related Security Documents having been duly
executed and delivered;
DECLARATION OF TRUST:
NOW, THEREFORE, to secure the payment, observance and
performance of the Secured Debt and in consideration of the premises and
the mutual agreements set forth herein, the Borrower hereby assigns and
pledges to the Trustee for its benefit and the equal and ratable benefit of
the Secured Parties, and hereby grants to the Trustee for its benefit and
the equal and ratable benefit of the Secured Parties a security interest
in, the following:
(a) all of the Borrower's right, title and interest in and to
that certain Mortgage Note, dated as of September 19, 1985, in the
principal amount of $1,255,160,004.00 made by RCP Associates and
Rockefeller Center Properties (collectively, the "Mortgagor") to the
Borrower, as amended by that certain Consent and Agreement (the
"Consent Agreement"), dated as of December 1, 1988, between the
Borrower and the Mortgagor (as the same may hereafter be amended,
supplemented or modified, the "Mortgage Note");
D-5
<PAGE>
<PAGE> 2
(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");
(c) all of the Borrower's right, title and interest in and to
those certain mortgages listed in Schedule I hereto which secure the
Notes, each of which has been recorded in the Office of the City
Register of the County of New York and encumbers (i) the land
described therein, (ii) the appurtenances, easements and other rights
pertaining to such land and (iii) the buildings, improvements and
fixtures now or hereafter located or constructed thereon
(collectively, as the same may hereafter be amended, supplemented or
modified, the "Mortgages");
(d) all of the Borrower's right, title and interest, in and
to all amounts payable to the Borrower as a result of any drawing
under the letters of credit described in Schedule II hereto or any
additional or substitute letters of credit naming the Borrower as
beneficiary provided to the Borrower pursuant to the Loan Agreement
dated as of September 19, 1985, as amended (the "Loan Agreement"),
between the Mortgagor and the Borrower (each such letter of credit
being a "Letter of Credit");
(e) all of the Borrower's right, title and interest in and to
(x) the Escrow Account (as defined in the Loan Agreement), if any,
and (y) the Collateral Account, all funds held therein and all
certificates and instruments, if any, from time to time representing
or evidencing the Escrow Account or the Collateral Account, as the
case may be (the "Account Collateral");
(f) all of the Borrower's right, title and interest in and to
that certain Amended and Restated Purchase Option, dated as of
December 1, 1988, as amended, among RCP Associates, Rockefeller
Center Properties and the Borrower (the "Assigned Agreement"),
provided that this clause (f) shall have no effect unless and until
all necessary consents have been obtained, which the Borrower shall
use its best efforts to obtain;
(g) all of the Borrower's right, title and interest in and to
(x) the title insurance policy set forth in Schedule III hereto and
(y) any amounts paid to the Borrower under the title insurance policy
described in the Letter Agreement (the "Title Insurance"); and
(h) all Proceeds of any and all of the foregoing.
D-6
<PAGE>
<PAGE> 3
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 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.
D-7
<PAGE>
<PAGE> 4
"Affiliate" means "Affiliate" as defined in the New Agreements.
"Assignment of Mortgage" means the Assignment of Mortgage dated
December 29, 1994 from the Borrower to the Trustee in substantially
the form of Exhibit A hereto.
"Bankruptcy Code" means the federal Bankruptcy Code, as amended
from time to time.
"Business Day" means any day other than a Saturday, a Sunday, a
legal holiday in New York, New York or a day on which banking
institutions in New York, New York are authorized by law or other
governmental action to close.
"Collateral" means all property of the Borrower in which liens
or security interests have been, or have purportedly been, granted to
the Trustee from time to time under this Agreement and the Security
Documents.
"Collateral Account" means the "Collateral Account" as defined
in Section 3.1 of this Agreement.
"Debt Instruments" means the New Agreements, the Public
Indenture and the notes or other instruments or securities issued
pursuant thereto.
"Discharge Notice" means a written notice, signed by a
Responsible Officer of the Borrower, which requests a discharge of
the Security Documents in accordance with the provisions of Section
6.2 of this Agreement and which certifies to the Trustee that
(i) the event enumerated in Section 6.1(a)(ii)(A) of
this Agreement has occurred, and
(ii) the Borrower would not be in default under or
otherwise in breach of any provision or covenant contained in
the New Agreements or the Public Indenture after, or as a
result of, the release of the Collateral.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"GSMC Agreement" means the Loan Agreement dated as of December
18, 1994 among the Borrower, the lenders parties thereto and Goldman
Sachs
D-8
<PAGE>
<PAGE> 5
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.
"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.
D-9
<PAGE>
<PAGE> 6
"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.
"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
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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.
"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
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New Agreements and the Public Indenture, and (ii) fees, expenses and
charges (including, without limitation, indemnification obligations) due
or owing to any Secured Party arising under any Debt Instrument, this
Agreement or any Security Document.
"Secured Party" means any New Lender, any New Trustee, the
Trustee, any Public Lender, the Public Trustee or any other obligee
or indemnified party under any New Agreement, New Indenture, Public
Indenture or Security Document.
"Security Documents" means this Agreement, the Assignment of
Mortgages, the Letter Agreement, any additional documents executed to
reflect the grant to the Corporate Trustee, the Individual Trustee or
the Trustee of a lien upon or security interest in any Collateral,
and any agreement or document referred to in Section 4.7, Section
7.1(a) or Section 7.1(b) of this Agreement, as the same may be
amended, supplemented or otherwise modified in accordance with their
respective terms.
"Trustee's Fees" means all fees, costs and expenses of the
Trustee of the types described in Sections 4.3, 4.4, 4.5 and 4.6 of
this Agreement.
"Whitehall Agreement" means the Debenture Purchase Agreement
dated as of December 18, 1994 between the Borrower and Whitehall
Street Real Estate Limited Partnership V, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with the terms thereof.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement and section
references are to this Agreement unless otherwise specified.
(c) In each case herein where "Holders" are entitled to vote
on any matter or to instruct the Trustee, the Public Trustee shall so vote
or instruct the Trustee on behalf of the Holders of Public Debt and any New
Trustee shall so vote or instruct the Trustee on behalf of the Holders of
the respective New Indenture Debt. Subject to Section 3.5 of this
Agreement, in each case herein where any payment or distribution is to be
made or notice is to be given to "Holders," such payments, distributions
and notices (i) in respect of the Public Debt, shall be made to the Public
Trustee for the benefit of the Holders thereof and (ii) in respect of the
any New Indenture Debt, shall be made to the respective New Trustee for the
benefit of the Holders thereof.
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(d) All terms defined in this Agreement in the singular
shall have comparable meanings when used in the plural, and vice versa,
unless otherwise specified.
(e) Terms not otherwise defined herein which are defined in
or used in Article 9 of the Uniform Commercial Code as in effect in the
State of New York shall herein have the respective meanings given to them
in Article 9.
(f) For purposes of this Agreement, the unpaid principal
amount at any time of the Zero Coupon Convertible Debentures due 2000
issued under the Public Indenture shall equal the Acceleration Amount (as
defined in the Public Indenture) thereof at such time.
Section 1.2. Delivery of Collateral. (a) On the date hereof
the Borrower hereby delivers to the Trustee for the benefit of the Secured
Parties the following:
(i) the Notes duly endorsed in blank, together with a letter
to the obligors thereof to pay amounts due on the Notes to the
Collateral Account, in the form of Exhibit B hereto;
(ii) the letters of credit described in Schedule II hereto;
(iii) the Assignment of Mortgages;
(iv) the Letter Agreement; and
(v) a letter in the form of Exhibit C hereto sent to each
issuer of an insurance policy set forth in Schedule III hereto
acknowledged by such issuer.
(b) The Borrower hereby agrees that (i) to the extent
permitted by the Letters of Credit, it will direct each issuer of a Letter
of Credit to pay the proceeds of any draw thereunder directly to the
Collateral Account and (ii) in case an Escrow Account is established, it
will deliver to the Trustee a letter in the form of Exhibit D hereto
acknowledged by the institution maintaining the Escrow Account.
SECTION 2
ACTIONABLE DEFAULTS; REMEDIES
Section 2.1. Actionable Default. (a) Upon receipt of a
Notice of Actionable Default, the Trustee shall, within five (5) days
thereafter, notify each New Trustee, each New Private Lender and the Public
Trustee that an Actionable Default
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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 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.
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(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
(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
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(ii) the Trustee may, either after entry or without entry, proceed by suit
or suits at law or in equity to enforce such rights and to foreclose upon
the Collateral and to sell all or, from time to time, any of the Trust
Estate under the judgment or decree of a court of competent jurisdiction.
Section 2.4. Appointment of a Receiver. If a receiver of the
Trust Estate shall be appointed in judicial proceedings, the Corporate
Trustee may be appointed as such receiver. Notwithstanding the appointment
of a receiver, the Trustee shall be entitled to retain possession and
control of all cash held by or deposited with it or its agents or co-
trustees pursuant to any provision of this Agreement or any Security
Document.
Section 2.5. Exercise of Powers. All of the powers, remedies
and rights of the Trustee as set forth in this Agreement may be exercised
by the Trustee in respect of any Security Document as though set forth at
length therein and all the powers, remedies and rights of the Trustee as
set forth in any Security Document may be exercised from time to time as
herein and therein provided.
Section 2.6. Control by Lenders. (a) Subject to Section
2.6(b) of this Agreement, if the Trustee shall have received a Notice of
Actionable Default and during such time as such Notice of Actionable
Default shall not have been withdrawn in accordance with the provisions of
Section 2.1(b) hereof, (i) the Requisite Lenders shall have the right, by
an instrument in writing executed and delivered to the Trustee, to direct
the Trustee to initiate the exercise of remedies with respect to the
Collateral and (ii) the Required Lenders shall have the right, by an
instrument in writing executed and delivered to the Trustee, to direct the
Trustee to refrain from exercising any right, remedy, trust or power
available to or conferred upon the Trustee hereunder.
(b) The Trustee shall not be obligated to follow any written
directions received pursuant to Section 2.2(a) or 2.6(a), (i) to the extent
the Trustee has received an opinion of independent counsel, to the effect
that such written directions are in conflict with any provisions of law or
this Agreement or (ii) in the case of directions from the Requisite
Lenders, if the Trustee has received written directions from the Required
Lenders inconsistent with such 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.
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(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.
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
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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 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
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exercisable only by the Trustee) it may have in connection with, a case
under the Bankruptcy Code in which the Borrower is a debtor, or the
obligation of the Borrower, which is also absolute and unconditional, to
pay the Secured Debt owing by the Borrower to each Holder at the time and
place expressed therein shall not be impaired or affected without the
consent of such Holder.
Section 2.12. Equal and Ratable Security. This Agreement and
the Security Documents are intended to secure the unpaid principal of and
accrued interest and premium, if any, on the Public Debt, together with all
expenses, charges or other amounts arising under the Public Indenture,
equally and ratably with all other indebtedness secured under this
Agreement and the Security Documents to the extent required by the Public
Indenture, and shall be construed and enforced to give effect to such
intention.
SECTION 3
COLLATERAL ACCOUNT; APPLICATION OF MONEYS
Section 3.1. The Collateral Account. On the date hereof there
shall be established and, at all times thereafter until the trusts created
by this Agreement shall have terminated, there shall be maintained with the
Corporate Trustee an account which shall be entitled the "RCPI Collateral
Account" (herein called the "Collateral Account"). The Collateral Account
shall be established and maintained by the Corporate Trustee at the office
of its corporate trust department. All moneys paid with respect to the
Collateral shall be deposited in the Collateral Account and thereafter
shall be held and applied by the Corporate Trustee in accordance with the
terms of this Agreement.
Section 3.2. Control of Collateral Account. All right, title
and interest in and to the Collateral Account shall vest in the Corporate
Trustee, and funds on deposit in the Collateral Account shall constitute
part of the Trust Estate. The Collateral Account shall be subject to the
exclusive dominion and control of the Corporate Trustee in accordance with
the terms hereof.
Section 3.3. Investment of Funds Deposited in Collateral
Account. The Corporate Trustee shall invest and reinvest moneys on deposit
in the Collateral Account as directed by the Borrower, so long as the
Trustee has not received a Notice of Actionable Default, at any time in:
(i) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States of America is
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pledged in support thereof) having maturities of not more than six months
from the date of acquisition,
(ii) U.S. dollar denominated time deposits and
certificates of deposit of a bank (an "Approved Bank") that is
either (x) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or (y) any
bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody's is at least
P-1 or the equivalent thereof, in each case with maturities of
not more than six months from the date of acquisition,
(iii) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof)
or any variable rate notes issued or guaranteed by any Approved
Bank rated at least A-1 (or the equivalent thereof) by S&P or
at least P-1 (or the equivalent thereof) by Moody's and
maturing within six months of the date of acquisition,
(iv) repurchase agreements with a bank or trust company
or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States of America in which the
Borrower shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations, and
(v) publicly traded short-term notes, bonds and other
obligations having short-term unsecured debt ratings of at
least A-1 (or the equivalent thereof) by S&P or at least P-1
(or the equivalent thereof) by Moody's;
provided, however, that if no investment directions are received the
Trustee shall invest such moneys in such investments, to the extent such
investments are available, in the order set forth above; provided, further,
that the maximum amount of the funds held in the Collateral Account which
may be invested in obligations of the types described in clauses (ii),
(iii), (iv) and (v) above of any one issuer shall not exceed the lesser of
five percent (5.0%) of such funds or $10,000,000. All such investments and
the interest and income received thereon and therefrom and the net proceeds
realized on the sale thereof shall be held in the Collateral Account as
part of the Trust Estate.
Section 3.4. Application of Moneys. (a) Prior to the
occurrence and after the curing of a Payment Default all moneys received by
the Trustee for deposit in the
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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 Corporate Trustee in the Collateral Account
shall, to the extent available for distribution, be distributed (or, in the
case of moneys to be distributed to the Holders of Public Debt, deposited
in a separate account for the benefit of the Public Trustee pursuant to
Section 3.5, if applicable) by the Corporate Trustee as follows:
FIRST: To the Trustee in an amount equal to the unpaid
Trustee's Fees, and to any Secured Party which has theretofore
advanced or paid any such Trustee's Fees in an amount equal to the
amount thereof so advanced or paid by such Secured Party;
SECOND: Provided the Trustee has not received a Notice of
Actionable Default, to the Holders of Secured Debt with respect to
which a Payment Default has occurred and is continuing, in an amount
equal to the amount of such Payment Default and, in case such moneys
shall be insufficient to pay in full such amount, then to the payment
of such amount ratably (without priority of any one over any other)
to each such Holder in proportion to the amount thereof;
THIRD: To the Secured Parties in an amount equal to the costs
and expenses of and any other amounts due to the Secured Parties and
their representatives not otherwise referred to in this Section
3.4(b) which are payable by the Borrower to the Secured Parties under
the relevant Debt Instrument, and, in case such moneys shall be
insufficient to pay in full such costs and expenses and other
amounts, then to the payment thereof ratably (without priority of any
one over any other) to each Secured Party in proportion to the unpaid
amounts thereof;
FOURTH: To the Secured Parties in an amount equal to the
unpaid interest on the Secured Debt whether or not then due and
payable, and, in case such moneys shall be insufficient to pay in
full such interest, then to the payment thereof ratably (without
priority of any one over any other) to each Secured Party in
proportion to the unpaid amounts thereof;
FIFTH: To the Secured Parties in an amount equal to the unpaid
principal of, and all premium on, the Secured Debt whether or not
then due and payable, and, in case such moneys shall be insufficient
to pay in full such principal and premium, then to the payment
thereof ratably (without priority of any one over any other) to each
Secured Party in proportion to the unpaid amounts thereof; and
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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 FIRST, FOURTH
and FIFTH of subsection (b) shall mean all amounts of outstanding Trustee's
Fees and Secured Debt as to which prior distributions (whether actually
distributed or set aside pursuant to Section 3.5) have not been made, or if
made, have subsequently been recovered from the recipient thereof.
Section 3.5. Application of Moneys Distributable to Holders of
Public Debt. If at any time any moneys collected or received by the
Trustee pursuant to this Agreement or any of the Security Documents are
distributable pursuant to Section 3.4(b) of this Agreement to the Public
Trustee, and if the Public Trustee shall notify the Trustee that no
provision is made under the Public Indenture (i) for the application by the
Public Trustee of such amounts so distributable (whether by virtue of the
Secured Debt issued under the Public Indenture not having become due and
payable or otherwise), or (ii) for the receipt and the holding by the
Public Trustee of such amounts pending the application thereof, then the
Corporate Trustee shall invest such amounts in obligations of the kinds
referred to in Section 3.3(i) of this Agreement having maturities of ninety
(90) days or less, and shall hold all such amounts so distributable, and
all such investments and the proceeds thereof, in trust solely for the
Public Trustee (in its capacity as trustee) and for no other purpose until
such time as the Public Trustee shall request the delivery thereof by the
Trustee to the Public Trustee for application by it pursuant to the Public
Indenture.
SECTION 4
AGREEMENTS WITH TRUSTEE
Section 4.1. Delivery of Debt Instruments. On the date
hereof, the Borrower will deliver to the Trustee true and complete copies
of the New Agreements and the Public Indenture. The Borrower agrees that,
promptly upon the execution thereof, the Borrower will deliver to the
Trustee a true and complete copy of any and all amendments, modifications
or supplements to any New Agreement or the Public Indenture entered into by
the Borrower subsequent to the date hereof.
Section 4.2. Information as to Holders. The Borrower agrees
that it shall deliver to the Trustee by December 1 in each year and from
time to time within 10 days of a request by the Trustee, a list setting
forth (i) the aggregate principal amount outstanding under the Public
Indenture and any New Indenture, (ii) the interest rates then
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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.
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,
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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 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,
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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 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,
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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 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)
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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
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
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aforesaid notice of resignation or within thirty (30) days from the date of
such removal, the Corporate Trustee or the Individual Trustee, as
applicable, shall, or any Holder may, apply to any court of competent
jurisdiction to appoint a successor trustee or trustees (which may be an
individual or individuals) to act until such time, if any, as a successor
trustee or trustees shall have been appointed as above provided. Any
successor trustee or trustees so appointed by such court shall immediately
and without further act be superseded by any successor trustee or trustees
approved by the Majority Holders as above provided.
(b) If at any time the Corporate Trustee or the Individual
Trustee shall resign, be removed or otherwise become incapable of acting,
or if at any time a vacancy shall occur in the office of the Corporate
Trustee or the Individual Trustee for any other cause, a successor trustee
or trustees may be appointed by the Borrower, and the powers, duties,
authority and title of the predecessor trustee or trustees terminated and
cancelled without procuring the resignation of such predecessor trustee or
trustees, and without any other formality (except as may be required by
applicable law) than the appointment and designation of a successor trustee
or trustees in writing, duly acknowledged, delivered to the predecessor
trustee or trustees and the Borrower, and filed for record in each public
office, if any, in which this Agreement is required to be filed.
(c) The appointment and designation referred to in Section
5.7(b) of this Agreement shall, after any required filing, be full evidence
of the right and authority to make the same and of all the facts therein
recited, and this Agreement shall vest in such successor or trustee or
trustees, without any further act, deed or conveyance, all of the estate
and title of its predecessor or their predecessors, and upon such filing
for record the successor trustee or trustees shall become fully vested with
all the estates, properties, rights, powers, trusts, duties, 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
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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
successor or successors, or to act as separate trustee or trustees of any
such property. In the event the Borrower shall not have joined in the
execution of such instruments and agreements within ten (10) days after the
receipt of a written request from the Trustee so to do, or in case an
Actionable Default shall have occurred and be continuing, the Trustee may
act under the foregoing provisions of this Section 5.10 without the
concurrence of the Borrower, and the Borrower hereby irrevocably appoints
the Trustee as its agent and attorney to act for it under the foregoing
provisions of this Section 5.10 in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than
any trustee which may be appointed as successor to Bankers Trust Company or
Gary R. Vaughan,
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shall, to the extent permitted by law, be appointed and act and be such,
subject to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon
the Trustee in respect of the custody, control and management of
moneys, papers or securities shall be exercised solely by the
Corporate Trustee, or its successors as Corporate Trustee hereunder;
(ii) all rights, powers, duties and obligations conferred or
imposed upon the Trustee hereunder shall be conferred or imposed and
exercised or performed by the Trustee and such separate trustee or
separate trustees or co-trustee or co-trustees, jointly, as shall be
provided in the instrument appointing such separate trustee or
separate trustees or co-trustee or co-trustees, except to the extent
that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by
such separate trustee or separate trustees or co-trustee or co-
trustees;
(iii) no power given hereby to, or which it is provided hereby
may be exercised by, any such co-trustee or co-trustees or separate
trustee or separate trustees, shall be exercised hereunder by such
co-trustee or co-trustees or separate trustee or separate trustees,
except jointly with, or with the consent in writing of, the Trustee,
anything herein contained to the contrary notwithstanding;
(iv) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(v) the Borrower and the Trustee, at any time by an
instrument in writing, executed by them jointly, may accept the
resignation of or remove any such separate trustee or co-trustee, and
in that case, by an instrument in writing executed by the Borrower
and the Trustee jointly, may appoint a successor to such separate
trustee or co-trustee, as the case may be, anything herein contained
to the contrary notwithstanding. In the event that the Borrower
shall not have joined in the execution of any such instrument within
ten (10) days after the receipt of a written request from the Trustee
so to do, or in case an Actionable Default shall have occurred and be
continuing, the Trustee shall have the power to accept the
resignation of or remove any such separate trustee or co-trustee and
to appoint a successor without the concurrence of the Borrower, the
Borrower hereby irrevocably appointing the Trustee its agent and
attorney to act for it in such connection in either of such
contingencies. In the event that the Trustee shall have appointed a
separate trustee or separate trustees or co-trustee or co-
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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 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
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(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 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.
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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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(iv) amend, modify or waive any provision of Section 3.4 of
this Agreement or the definition of the term "Secured Debt" without
the written consent of any Secured Party whose rights would be
adversely affected thereby, or
(v) amend, modify or waive any provision of this Agreement or
any Security Document so as to adversely affect any of the Trustee's
rights, immunities or indemnities hereunder or thereunder or enlarge
its duties hereunder or thereunder, without the written consent of
the Trustee.
Any such supplemental agreement shall be binding upon the Borrower, the
Holders and the Trustee and their respective successors and assigns. The
Trustee shall not enter into any such supplemental agreement unless it
shall have received a certificate signed by the chief financial officer of
the Borrower to the effect that such supplemental agreement will not result
in a breach of any provision or covenant contained in the Public Indenture.
(b) Without the consent of the Holders, the Borrower and the
Trustee, at any time and from time to time, may enter into additional
Security Documents or one or more agreements supplemental hereto or to any
Security Document, in form satisfactory to the Trustee,
(i) to add to the covenants of the Borrower for the benefit
of the Holders;
(ii) to mortgage, pledge or grant a security interest in
favor of the Trustee as additional security for the Secured Debt
pursuant to any Security Document; or
(iii) to cure any ambiguity, to correct or supplement any
provision herein or in any Security Document which may be defective
or inconsistent with any other provision herein or therein; provided,
however, that any such action contemplated in this clause (iii) shall
not adversely affect the interests of any Holder in any material
manner.
Section 7.2. Notices. Except as otherwise expressly provided
herein, all notices and other communications shall be given to the
respective parties at the address set forth below, or at such other address
as such party may specify by written notice to the other party hereto:
if to the Borrower:
Rockefeller Center Properties, Inc.
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1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telecopy No.: (212) 698-1453
if to the Corporate Trustee and the Individual Trustee:
Bankers Trust Company
Four Albany Street
New York, New York 10015
Attention: RCPI Collateral Trust
Telecopy No.: (714) 253-7577
if to the Public Trustee, any New Trustee or any
New Private Lender: to it at the address specified
from time to time in the list provided by the
Borrower to the Trustee.
All such notices, requests, demands and communications shall, to be
effective hereunder, be in writing or by a telecommunications device
capable of creating a written record, and shall be deemed to have been
given or made when delivered by hand or five (5) Business Days after its
deposit in the mail, first class or air postage prepaid, or in the case of
notice by such a telecommunications device, when properly transmitted or in
the case of notice by publication, when such notice appears in such
publication; provided, however, that any notice, request, demand or other
communication to the Trustee shall not be effective until received.
Section 7.3. Headings. Section, subsection and other headings
used in this Agreement are for convenience only and shall not affect the
construction of this Agreement.
Section 7.4. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall not
invalidate the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, provided that this
Agreement shall be construed so as to give effect to the intention
expressed in Section 2.12 hereof.
Section 7.5. Treatment of Payee or Indorsee by Trustee;
Acknowledgment of Intercreditor Agreement. (a) The Trustee may treat the
registered holder of any registered note, and the payee or indorsee of any
note or debenture which is not registered, as the absolute owner thereof
for all purposes hereunder and shall not be
D-35
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<PAGE> 32
affected by any notice to the contrary, whether such promissory note or
debenture shall be past due or not.
D-36
<PAGE>
<PAGE> 33
(b) Any Person which shall be designated as the duly
authorized representative of one or more Holders of Secured Debt to act as
such in connection with any matters pertaining to this Agreement or any
Security Document or the Collateral shall present to the Trustee such
documents, including, without limitation, opinions of counsel, as the
Trustee may reasonably require, in order to demonstrate to the Trustee the
authority of such Person to act as the representative of such Holders.
(c) The Trustee acknowledges receipt of the Intercreditor
Agreement dated as of December 18, 1994 between Goldman Sachs Mortgage
Company and Whitehall Street Real Estate Limited Partnership V and the
rights of the parties thereunder including, without limitation, the rights
of subrogation pursuant to Paragraph 6 thereof.
Section 7.6. Dealings with the Borrower. (a) Upon any
application or demand by the Borrower to the Trustee to take or permit any
action under any of the provisions of this Agreement or any Security
Document, the Borrower shall furnish to the Trustee a certificate signed by
a Responsible Officer of the Borrower stating that all conditions
precedent, if any, provided for in this Agreement or any Security Document
relating to the proposed action have been complied with, except that in the
case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Agreement or
any Security Document, relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Any opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate of Responsible Officers of
the Borrower delivered to the Trustee.
Section 7.7. Claims Against the Trustee. Any claims or causes
of action which the New Lenders, the Public Trustee, any other Holders of
Secured Debt or the Borrower shall have against the Trustee shall survive
the termination of this Agreement and the release of the Collateral
hereunder.
Section 7.8. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and shall inure
to the benefit of the Holders and their respective successors and assigns,
and nothing herein or in any Security Document is intended or shall be
construed to give any other Person any right, remedy or claim under, to or
in respect of this Agreement, any Security Document, the Collateral or the
Trust Estate.
Section 7.9. Conflict with Other Agreements. The parties
agree that in the event of any conflict between the provisions of this
Agreement and the provisions of any of the Security Documents, the
provisions of this Agreement shall control.
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<PAGE> 34
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
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.
D-38
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<PAGE> 35
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
Richard M. Scarlata
President
Attest:
By:
Name:
Title:
[CORPORATE SEAL]
BANKERS TRUST COMPANY
By
Name:
Title:
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<PAGE> 36
Attest:
By
Name:
Title:
[CORPORATE SEAL]
GARY R. VAUGHAN
D-40
<PAGE>
<PAGE> 37
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally came
Richard M. Scarlata and ________________to me personally known and known to
me to be the persons described in and who executed the foregoing instrument
as President and_______________ respectively, of ROCKEFELLER CENTER
PROPERTIES, INC., a Delaware corporation, who, being by me duly sworn, did
depose and say that they reside at
and , respectively; that they are
President and , respectively, of ROCKEFELLER CENTER
PROPERTIES, INC., one of the corporations described in and which executed
the foregoing instrument; that they know the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that said
instrument was signed and sealed on behalf of said corporation by order of
its Board of Directors; that they signed their names thereto by like order,
and that they acknowledged said instrument to be the free act and deed of
said corporation.
Notary Public
County,
[SEAL]
My commission expires:
D-41
<PAGE>
<PAGE> 38
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally came
, to me personally known and known to me to be the person
described in and who executed the foregoing instrument as _________________
of Bankers Trust Company, a New York banking corporation, who, being by me
duly sworn, did depose and say that he resides at
; that he is
of Bankers Trust Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that said instrument was signed and sealed on behalf of said
corporation pursuant to its by-laws; that he signed his name thereto by
like authority, and that he acknowledged said instrument to be the free act
and deed of said corporation.
Notary Public
County,
[SEAL]
My commission expires:
D-42
<PAGE>
<PAGE> 39
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally
came Gary R. Vaughan, to me personally known and known to me to be
the person described in and who executed the foregoing instrument not in
his individual capacity (except as otherwise expressly provided in this
Agreement) but solely as trustee, who, being by me duly sworn, did depose
and say that he resides in , and that he acknowledged said
instrument to be his free act and deed.
Notary Public
County,
[SEAL]
My commission expires:
D-43
<PAGE>
<PAGE> 1
EXHIBIT A to Collateral Trust Agreement
____________________________________________________________________________
ASSIGNMENT OF MORTGAGES
Dated as of December 29, 1994
by
ROCKEFELLER CENTER PROPERTIES, INC.
("Assignor")
to
Bankers Trust Company
(the "Corporate Trustee")
and
Gary R. Vaughan
(the "Individual Trustee";
and together with the Corporate Trustee, "Assignee")
___________________________________________________________________________
__
This Pledge and Assignment should be indexed against the following tax
lots:
Parcel A-1: Block 1265 Lots 1001-1109 (30 Rockefeller Plaza and 1250
Avenue of the Americas)
Parcel A-2: Block 1265, Lot 50 (610 Fifth Avenue and 620 Fifth
Avenue)
Parcel A-3: Block 1265 Lot 40 (No street address)
Parcel A-4: Block 1265 Lot 8040 (No street address)
Parcel B: Block 1266 Lot 1 (1270 Avenue of the Americas,
50 Rockefeller Plaza and
630 Fifth Avenue)
Parcel C: Block 1264 Lot 5 (1230 Avenue of the Americas,
10 Rockefeller Plaza and
1 Rockefeller Plaza)
Parcel D: Block 1265 Lot 71 (1256 Avenue of the Americas)
Parcel E-1: Block 1264 Part of Lot 30 (600 Fifth Avenue)
Parcel E-2: Block 1264 Part of Lot 30 (600 Fifth Avenue)
Parcel E-3: Block 1264 Part of Lot 30 (600 Fifth Avenue)
D-A-1
<PAGE>
<PAGE> 2
ASSIGNMENT OF MORTGAGES
THIS ASSIGNMENT OF MORTGAGES (this "Assignment") made as of the
29th day of December, 1994, by ROCKEFELLER CENTER PROPERTIES, INC., a
Delaware corporation having an office at 1270 Avenue of the Americas, New
York, New York 10020 ("Assignor"), to Bankers Trust Company, a New York
banking corporation having an office at Four Albany Street, New York, New
York 10015 (the "Corporate Trustee") and Gary R. Vaughan, an individual
having an office at c/o Bankers Trust Company, Four Albany Street, New
York, New York 10015 (the "Individual Trustee", and, together with the
Corporate Trustee, "Assignee") as trustees under that certain Collateral
Trust Agreement, dated as of the date hereof, among Assignor and Assignee
(the "Trust Agreement").
NOW THEREFORE, in order to secure the payment of all Secured
Debt (as defined in the Trust Agreement) of Assignor, Assignor hereby
assigns unto Assignee all of the Assignor's right, title and interest in
and to all of those certain mortgages listed in Annex A hereto, each of
which has been recorded in the office of the City Register of the County of
New York and covers the land described in Annex B hereto and the
appurtenances, easements and other rights pertaining to such land and the
buildings, improvements and fixtures now or hereafter located or
constructed thereon.
TO HAVE AND TO HOLD the same unto Assignee and its successors
and assigns from and after the date hereof forever, SUBJECT, HOWEVER, to
all of the terms, provisions and conditions of the Trust Agreement,
including, but not limited to, reassignment to Assignor or its designee
pursuant to Section 6 thereof.
This Assignment shall be governed by the laws of the State of
New York.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of
the date first set forth above.
ASSIGNOR
ROCKEFELLER CENTER PROPERTIES, INC.
By:_________________________________
Richard M. Scarlata
President
D-A-2
<PAGE>
<PAGE> 3
Annex A
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, 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".
D-A-3
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<PAGE> 4
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: $34,516900.00)
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 tween 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.
D-A-4
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<PAGE> 5
Annex B
Description of the Land
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;
thence westerly along the southerly side of 50th Street, 315 feet 0 inches
to the easterly side of Rockefeller Plaza;
D-A-5
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<PAGE> 6
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 the 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 an elevation at Point A of 65.87 feet, at
Point B of 63.47 feet 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 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:
D-A-6
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<PAGE> 7
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;
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.
D-A-7
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<PAGE> 8
PARCEL C (Block 1264 Lot 5)
ALL that certain lot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, State and County of New York, bounded and
described as follows:
BEGINNING at a point on the north side of West 48th Street distant 200 feet
westerly from the corner formed by the intersection of the north side of
West 48th Street with the west side of Fifth Avenue; running
thence Westerly along the north side of West 48th Street 720 feet to the
corner formed by the intersection of the north side of West 48th Street
with the east side of Avenue of the Americas, formerly named "Sixth
Avenue"; running
thence Northerly along the east side of Avenue of the Americas, 200 feet 10
inches to the corner formed by the intersection of the south side of West
49th Street with the east side of Avenue of the Americas; running
thence Easterly along the south side of West 49th Street 695 feet to a
point distant 225 feet westerly from the west side of Fifth Avenue;
thence Southerly parallel with Fifth Avenue and for part of the distance
through a party wall 100 feet 5 inches;
thence Easterly parallel with West 49th Street, 25 feet;
thence Southerly parallel with Fifth Avenue, 100 feet 5 inches to the north
side of West 48th Street at the place of Beginning.
PARCEL D (Block 1265 Lot 71)
ALL 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;
D-A-8
<PAGE>
<PAGE> 9
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 Forth-ninth Street, distance
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 distance 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 parallel with
49th Street 16 feet 6 inches; thence northerly parallel with Fifth Avenue
and part of the way through the center of a party wall, 100 feet to the
southerly side of 49th Street, and thence easterly along the southerly side
of 49th Street 16 feet 6 inches to the point or place of Beginning.
PARCEL E-3
BEGINNING at a point on the southerly side of 49th Street distance 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.
D-A-9
<PAGE>
<PAGE> 10
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of December, 1994, before personally came
Richard M. Scarlata, to me known, who, being by me duly sworn, did depose
and say that he resides at 2390 Palisade Avenue, Bronx, New York 10463;
that he is the president of ROCKEFELLER CENTER PROPERTIES, INC., the
corporation described in and which executed the foregoing instrument; and
that he signed his name thereto by order of the board of directors of said
corporation.
___________________________________
Notary Public
D-A-10
<PAGE>
<PAGE> 1
EXHIBIT B to Collateral Trust Agreement
[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 "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
D-B-1
<PAGE>
<PAGE> 1
EXHIBIT C to Collateral Trust Agreement
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
December , 1994
Lawyers Title Insurance Corporation
708 Third Avenue
New York, New York 10017
Ladies and Gentlemen:
Please be advised that as of the date hereof the undersigned
has assigned all of its right, title and interest in and under the
following Mortgagee Title Policies to the Trustee (as defined herein)
pursuant and subject to that certain Collateral Trust Agreement (the "Trust
Agreement"), dated as of the date hereof, among the undersigned, _________
(the "Corporate Trustee") and _______________, (the "Individual Trustee",
and, together with the Corporate Trustee, the "Trustee"):
1. Title Policy No. 22215 issued by Lawyers Title
Insurance Corporation on September 19, 1985 in the
principal amount of $14,946,665.00.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:
Richard M. Scarlata
President
Receipt acknowledged:
LAWYERS TITLE INSURANCE CORPORATION
By:________________________________
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Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
December , 19
Chicago Title Insurance Company
Ticor Title Guarantee Company
1211 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
Please be advised that as of the date hereof the undersigned
has assigned all of its right, title and interest in and under the
following Mortgagee Title Policies to the Trustee (as defined herein)
pursuant and subject to that certain Collateral Trust Agreement (the "Trust
Agreement"), dated as of the date hereof, among the undersigned, _________
(the "Corporate Trustee") and _______________, (the "Individual Trustee",
and, together with the Corporate Trustee, the "Trustee"):
1. Title Policy No. 41-85-01028 issued by Ticor Title
Guarantee Company on September 19, 1985 in the
principal amount of $14,946,665.00.
2. Title Policy No. 8501-00147 issued by Chicago Title
Insurance Company on September 19, 1985 in the
principal amount of $14,946,666.00.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:
Richard M. Scarlata
President
Receipt acknowledged:
Chicago Title Insurance Company
By:_________________________
Ticor Title Guarantee Company
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By:__________________________
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EXHIBIT D to Collateral Trust Agreement
[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________________________
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EXHIBIT E to Collateral Trust Agreement
[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________________________
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EXHIBIT E
Form of Letter Agreements Relating to Title Insurance Policies
[See EXHIBIT E to Collateral Trust Agreement
attached hereto as Exhibit D]
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EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 29, 1994,
by and among Rockefeller Center Properties, Inc., a Delaware corporation
(the "Company"), Goldman Sachs Mortgage Company, a New York limited
partnership ("GSMC") and Whitehall Street Real Estate Limited Partnership V
("Whitehall").
RECITALS
WHEREAS, the Company, the lenders party thereto (the "Lenders")
and GSMC, as Agent, have entered into a Loan Agreement (the "Loan
Agreement"), dated as of December 18, 1994, providing for the making of
certain loans by the Lenders (the "Loans") in the aggregate principal
amount of $150,000,000 to be evidenced by certain floating rate notes, due
2000 (the "Notes", which term shall include any security issued by the
Company pursuant to Section 5.09 of the Loan Agreement); and
WHEREAS, the Company and Whitehall have entered into a
Debenture Purchase Agreement (the "Debenture Purchase Agreement"), dated as
of December 18, 1994, providing for the issuance by the Company and the
purchase by Whitehall of Debentures (the "Debentures", which term shall
include any security issued by the Company pursuant to Section 5.09 of the
Debenture Purchase Agreement) in the aggregate principal amount of $75
million.
WHEREAS, this Agreement is being entered into as a condition to
the making of the Loans and the purchase of the Debentures of the Loan
Agreement and Debenture Purchase Agreement to facilitate the resale by GSMC
and Whitehall and their successors and assigns of the Notes and Debentures,
respectively;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements herein
contained, the parties hereto agree as follows:
1. Certain Definitions.
1.1. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Business Day" means any day that is not a day on which banking
institutions are authorized or required to be closed in the State of New
York or the State in which the principal corporate trust office of any
trustee under an Indenture is located.
(b) "Collateral Trust Agreement" means the Collateral Trust
Agreement, dated as of December 29, 1994, from the Company to Bankers
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Trust Company, as Corporate Trustee, and Gary Vaughan, as Individual
Trustee.
(c) "Company" has the meaning specified in the first paragraph to
this agreement.
(d) "Company Securities" has the meaning specified in Section
2.1(g).
(e) "Cut Back Notice" has the meaning specified in Section 2.1(d).
(f) "Debenture Purchase Agreement" has the meaning specified in the
Recitals.
(g) "Debentures" has the meaning specified in the Recitals.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Holders" means the holders from time to time of the Notes or
Debentures.
(j) "Lender" has the meaning specified in the Recitals.
(k) "Loan Agreement" has the meaning specified in the Recitals.
(l) "Loans" has the meaning specified in the Recitals.
(m) "Notes" has the meaning specified in the Recitals.
(n) "Piggy Back Registration Statement" has the meaning specified
in Section 2.2.
(o) "Piggyback Registration Rights" has the meaning specified in
Section 2.2.
(p) "Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering made pursuant to Section 2.1 or 2.2 of
any of the Company's securities covered by such Registration Statement and
by all other amendments and supplements to such prospectus, including post-
effective amendments and all material incorporated by reference in such
prospectus.
(q) "Registered Securities" has the meaning specified in Section
3.1.
(r) "Registration Demand" has the meaning specified in Section 2.1.
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(s) "Registration Statement" means any registration statement of
the Company pursuant to Section 2.1 or 2.2 filed under the Securities Act
that covers any of the Company's securities, including the Prospectus, any
amendments and supplements to such Registration Statement, including post-
effective amendments, and all exhibits and all materials incorporated by
reference in such registration statement.
(t) "Representative" has the meaning specified in Section 3.8.
(u) "SAR Agreement" means the SAR Agreement dated as of
December 18, 1994 between the Company and Chemical Bank, as agent.
(v) "SEC" means the Securities and Exchange Commission.
(w) "Securities Act" means the Securities Act of 1933, as amended.
(x) "Shelf Registration" has the meaning specified in Section
2.1(c)(i).
(y) "Shelf Registration Statement" has the meaning specified in
Section 2.1(c)(i).
(z) "60 Day Effective Date" has the meaning specified in Section
2.1(c)(i).
(aa) "Takedown" has the meaning specified in Section 2.1(c)(ii).
(bb) "Warrant Agreement" means the Warrant Agreement dated as of
December 18, 1994 between the Company and Chemical Bank, as agent.
2. Registration Rights.
2.1. Demand Registration. (a) The Holders of (i) at least 5%
of the aggregate principal amount of Notes or Debentures, as the case may
be, then outstanding shall have the right to request in writing that the
Company effect a registration of such Holders' Notes or Debentures, as the
case may be, pursuant to the provisions of this Section 2.1 or (ii) at
least 1% of the aggregate principal amount of Notes or Debentures, as the
case may be, then outstanding shall have the right to request in writing
that the Company effect a registration of such Holders' Notes or
Debentures, as the case may be, pursuant to a Takedown under this Section
2.1 (each such request, a "Registration Demand"). A Registration Demand
shall specify the principal amount of Notes or Debentures that each such
Holder proposes to sell in the offering. If no Shelf Registration
Statement (as defined in Section 2.1(c)(i) below) shall be effective as of
the date of the Registration Demand, the demanding Holders may elect to
have the Company register such Notes or Debentures in accordance with
either Section 2.1(c)(i)
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or Section 2.1(d). If a Shelf Registration Statement shall be effective as
of the date of the Registration Demand, then all demanding Holders shall be
deemed to have elected to register their Notes or Debentures, as the case
may be, pursuant to Section 2.1(c)(ii). The Holders of Notes and the
Holders of Debentures may each make four Registration Demands pursuant to
Sections 2.1(c)(i) and 2.1(d) and four Registration Demands per year
pursuant to an existing Shelf Registration Statement pursuant to Section
2.1(c)(ii) for which the Company will pay and bear all costs and expenses
in accordance with Section 3.3 and thereafter the Holders may make an
unlimited number of Registration Demands for which such requesting Holders
shall pay and bear all costs and expenses.
(b) Upon receipt of a Registration Demand (other than for a
Takedown), the Company shall give written notice thereof to all of the
other Holders of Notes or Debentures, as the case may be, at least 30 days
prior to the initial filing of a Registration Statement relating to such
Registration Demand. Each of the other Holders of Notes or Debentures, as
the case may be, shall have the right, within 20 days after the delivery of
such notice, to request that the Company include all or a portion of such
Holder's Notes or Debentures, as the case may be, in such Registration
Statement. Upon receipt of a Registration Demand that is a Takedown, a
Representative of such selling holders shall give written notice thereof to
all of the Holders of Notes or Debentures, as the case may be, at least
three Business Days prior to the initial filing of a Registration Statement
relating to such Registration Demand. Each of the other such Holders shall
have the right, within one Business Day after the delivery of such notice,
to request that the Company include all or a portion of such Holder's Notes
or Debentures, as the case may be, in such Registration Statement.
(c) (i) As promptly as practicable and in no event later
than 60 days after the Company receives a Registration Demand electing to
register Notes or Debentures pursuant to this Section 2.2(c)(i), the
Company shall file under the Securities Act a "shelf" registration
statement (the "Shelf Registration Statement") providing for the
registration and the sale on a continuous or delayed basis of all of the
Notes or Debentures, as the case may be, pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the SEC (the
"Shelf Registration"). The Company agrees to use its best efforts to cause
the Shelf Registration Statement to become or be declared effective no
later than 60 calendar days after the filing (the "60 Day Effective Date")
and to keep such Shelf Registration continuously effective for a period
ending on the occurrence of the earlier of (x) the third anniversary of the
Registration Demand and (y) notification by all of the requesting Holders
that such Holders have sold all of the Notes or Debentures, as the case may
be, owned by them. The Company further agrees to supplement or make
amendments to the Shelf Registration Statement and the prospectus included
therein
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(x) as may be necessary to effect and maintain the effectiveness of such
Shelf Registration Statement for the period set forth in the previous
sentence and (y) as may be required by the rules, regulations or
instructions applicable to the registration form used by the Company for
such Shelf Registration or by the Securities Act or rules and regulations
thereunder for shelf registration. The Company agrees to furnish to the
Holders of the securities registered thereby copies of any such supplement
or amendment (but excluding any periodic reports required to be filed with
the SEC under the Exchange Act) so that such Holders through the
Representative(s) have a reasonable opportunity to comment thereon prior to
its being used and/or filed with the SEC.
(ii) As promptly as practicable after the Company receives a
Registration Demand from a Holder or Holders of Notes or Debentures
pursuant to which such Holder is deemed to have elected to register Notes
or Debentures pursuant to an existing Shelf Registration Statement (a
"Takedown"), the Company shall file a Prospectus or any necessary
supplement to a Prospectus with the SEC and otherwise comply with the
Securities Act and all rules, regulations and instructions thereunder
applicable to such Takedown. In the event that no Prospectus or other
filing is required nor any other action that necessitates the Company's
participation is required to effect a sale of Notes or Debentures, as the
case may be, pursuant to an effective Shelf Registration Statement, each
selling holder agrees to provide the Company with at least three Business
Days' notice of its intention to sell Notes or Debentures pursuant to the
Shelf Registration Statement; provided, however, that the Company shall
have the right to postpone any such sale for a reasonable period of time
not to exceed 90 days if: (i) in the opinion of counsel for the Company,
the Company would, in connection with such sale, be required to disclose in
such Registration Statement (or any prospectus supplement to be used in
connection therewith) information not otherwise then required by law to be
publicly disclosed and (ii) in the good faith judgment of the Board of
Directors of the Company, such disclosure would adversely affect any
material corporate development or business transaction contemplated by the
Company.
(d) As promptly as practicable and in no event later than
60 days after the Company receives a Registration Demand electing to
register Notes or Debentures pursuant to this Section 2.1(d), the Company
shall file with the SEC a Registration Statement, on any form that shall be
available and appropriate for the sale of such Notes or Debentures in
accordance with the intended method of distribution thereof. The Company
shall include in such Registration Statement all of the Notes or
Debentures, as the case may be, of such requesting Holders that such
Holders have requested to be included therein pursuant to Sections 2.1(a)
and 2.1(b); provided, however, that, if the requested registration involves
an underwritten offering, the Notes or Debentures, as the case may be, to
be registered may be
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reduced if the managing underwriter delivers a notice (a "Cutback Notice")
pursuant to Section 2.1(g).
The Company shall use its best efforts to cause each such
Registration Statement to be declared effective and to keep such
Registration Statement continuously effective and usable for resale of such
Notes or Debentures, as the case may be, for a period of 90 days from the
date on which the SEC declares such Registration Statement effective or
such shorter period as is necessary to complete the distribution of the
securities registered thereunder.
(e) The Representative(s) shall determine the method of
distribution of Notes or Debentures pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten
offering, Goldman, Sachs & Co. shall be the managing underwriter for such
offering unless Goldman, Sachs & Co. declines such engagement, in which
event, the Representative(s) shall select the managing underwriter;
provided that such managing underwriter so selected shall be reasonably
satisfactory to the Company.
(g) In the event that the proposed offering is an
underwritten offering and includes securities to be offered for the account
of the Company (the "Company Securities"), the provisions of this
Section 2.1(g) shall be applicable if the managing underwriter delivers a
Cutback Notice stating that, in its opinion, the principal amount of
Company Securities and the principal amount of Notes or Debentures, as the
case may be that the Holders have requested to be registered exceeds the
maximum principal amount of securities specified by the managing
underwriter in such Cutback Notice that may be distributed without
adversely affecting the price, timing or distribution of the securities
being distributed. If the managing underwriter delivers such Cutback
Notice, the number of Company Securities and Notes or Debentures, as the
case may be, requested to be registered shall be reduced in the following
order until the principal amount of securities to be registered has been
reduced to the maximum principal amount of securities specified by the
managing underwriter in the Cutback Notice: first, the Company Securities
and second, the Notes or Debentures, as the case may be, in proportion to
the respective principal amount of Notes or Debentures, as the case may be,
that each Holder has requested to be registered.
(h) No Registration Demand relating to Notes or Debentures
(other than a Takedown) may be made until the expiration of six months
following the completion of the distribution of the securities registered
under any Registration Statement that has been filed and has become
effective pursuant to a prior Registration Demand relating to Notes or
Debentures, respectively.
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(i) The Company shall not be obligated to file a Registration
Statement relating to any Registration Demand (other than a Takedown)
unless the requests by the Holders for such registration cover 5% or more
of aggregate principal amount of Notes or Debentures, as the case may be,
then outstanding.
2.2. Piggyback Registration Rights. (a) If the Company
proposes to file a Registration Statement with the SEC respecting an
offering, whether primary or secondary, of any debt securities of the
Company, the Company shall give written notice to all the Holders of Notes
and Debentures at least 30 days prior to the initial filing of the
Registration Statement relating to such offering. Each Holder shall have
the right, within 20 days after delivery of such notice, to request in
writing that the Company include all or a portion of such Holder's Notes or
Debentures in such Registration Statement ("Piggyback Registration
Rights").
(b) In the event that the proposed offering is an
underwritten offering covering debt securities to be offered for the
account of Company Securities, the provisions of this Section 2.2(b) shall
be applicable if the managing underwriter delivers a Cutback Notice stating
that, in its opinion, the aggregate principal amount of Company Securities
and the principal amount of Notes or Debentures that the Holders have
requested to be registered exceeds the maximum principal amount of
securities specified by the managing underwriter in such Cutback Notice
that may be distributed without adversely affecting the price, timing or
distribution of the securities being distributed. If the managing
underwriter delivers such Cutback Notice, the principal amount of Company
Securities, Notes and Debentures requested to be registered shall be
reduced in the following order until the principal amount of securities to
be offered has been reduced to the maximum principal amount of securities
specified by the managing underwriter in the Cutback Notice: first, the
Notes and Debentures in proportion to the respective principal amount of
Notes and Debentures that each Holder has requested to be registered and
second, the Company Securities.
(c) The provisions of this Section 2.2 shall not be
applicable in connection with (i) a registration statement filed by the
Company pursuant to Section 2.1 or (ii) a transaction in which a
registration statement is filed by the Company on Form S-4 or any successor
forms.
2.3. Company's Ability to Postpone Registration Rights.
(a) The Company shall have the right to postpone the filing of any
Registration Statement relating to a Demand Registration for a reasonable
period of time not to exceed 90 days if: (i) in the opinion of counsel for
the Company, the Company would be required to disclose in such Registration
Statement information not otherwise then required by law to be publicly
disclosed and (ii) in the good faith judgment of the Board of Directors of
the Company, such disclosure
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would adversely affect any material corporate development or business
transaction contemplated by the Company; provided, however, that such
90-day period shall be deducted from the six-month interval allowed between
Registration Demands pursuant to Section 2.1(h).
(b) If at any time after the Company notifies the Holders of
its intention to file a Registration Statement that would trigger Piggyback
Registration Rights, the Board of Directors of the Company in good faith
shall determine for any reason not to effect such registration or to
postpone such registration, the Company shall (i) in the case of a
determination not to effect such registration, be relieved of its
obligation to register any Notes or Debentures of Holders requesting
inclusion in such registration, and (ii) in the case of a determination to
postpone such registration, be permitted to postpone registering the Notes
or Debentures of Holders requesting inclusion in such registration.
(c) The Company shall as promptly as practicable notify the
Holders of any postponement pursuant to this Section 2.3, specifying the
reasons therefor.
2.4. Holder Withdrawal Rights. The Company shall withdraw
from registration any Notes and Debentures on request of a Holder thereof;
provided that, in the case of a Registration Demand under Section 2.1, a
Demand Registration shall be deemed to have been made for the purpose of
the number of such Demands permitted to be made under Section 2.1(a) if the
Company shall have incurred $50,000 in expenses relating to such Demand
Registration at such time as such Holder makes such withdrawal. The
Company shall not be obligated to maintain the effectiveness of any
Registration Statement if, after any withdrawal of Notes and/or Debentures
by a Holder, the principal amount of Notes and Debentures remaining subject
to such Registration Statement is less than 5% of the aggregate principal
amount of Notes or Debentures, as the case may be, then outstanding, unless
(i) the Company is also registering securities on such Registration
Statement for its own account or (ii) if such Registration Statement
relates to securities other than for the account of the Company.
3. Registration Procedures.
3.1. Covenants of the Company Applicable to All Registration
Statements. This Section 3.1 applies to all Registration Statements filed
by the Company and referred to in Section 2.1 or 2.2. The securities
covered by each such Registration Statement are referred to as the
"Registered Securities". Each underwriter, agent, selling broker, dealer
manager or similar securities industry professional participating in any
offering of the Registered Securities is referred to as an "underwriter" or
"agent" and any agreement entered into with an underwriter or agent is
referred to as an "underwriting or agency
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agreement". In connection with each such registration, the Company
covenants with each Holder of Notes or Debentures participating in such
offering (each, a "selling holder") and each underwriter or agent
participating therein as follows:
(a) The Company will notify the selling holders and the
managing underwriter or agent, immediately, and confirm the notice in
writing, (i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the SEC,
(iii) of any request by the SEC to amend the Registration Statement
or amend or supplement the Prospectus or for additional information,
(iv) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Registered Securities for
offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes, (v) if at
any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registered Securities the
representations and warranties of the Company contemplated by
Section 3.1(i) cease to be true and correct and (vi) of the existence
of any fact that results or may result in the Registration Statement,
the Prospectus or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to state
a material fact required to be stated therein or necessary to make
any statement therein not misleading.
(b) The Company will use every reasonable effort to prevent
the issuance of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) The Company will afford the Representative(s) and the
managing underwriters a reasonable opportunity to comment prior to
its being filed with the SEC any Registration Statement, any
amendment thereto, or any amendment of or supplement to the
Prospectus (including amendments of the documents incorporated by
reference into the Prospectus but excluding any periodic reports
required to be filed with the SEC pursuant to the Exchange Act).
(d) The Company will furnish to each selling holder and to
the managing underwriter or agent, without charge, as many signed
copies of the Registration Statement (as originally filed) and of all
amendments thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents
filed therewith, including documents incorporated by reference into
the Prospectus, and signed copies of all consents and certificates
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of experts, as such selling holder or the managing underwriter or agent may
reasonably request, and will furnish to the managing underwriter, for each
other underwriter participating in an underwritten offering, one conformed
copy of the Registration Statement as originally filed and of each
amendment thereto (including documents incorporated by reference into the
Prospectus but without exhibits).
(e) The Company will deliver to each selling holder and each
underwriter or agent participating in such offering, without charge,
as many copies of each preliminary prospectus as such selling holder
or such underwriter or agent may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted by
the Securities Act. The Company will deliver to each selling holder
and each underwriter or agent participating in such offering, without
charge, from time to time during the period when the Prospectus is
required to be delivered under the Securities Act, such number of
copies of the Prospectus (as supplemented or amended) as such selling
holder or such underwriter or agent may reasonably request.
(f) The Company will comply to the best of its ability with
the Securities Act and the rules and regulations of the SEC
thereunder, and the Exchange Act and the rules and regulations of the
SEC thereunder so as to permit the completion of the distribution of
the Registered Securities in accordance with the intended method or
methods of distribution contemplated in the Prospectus. If at any
time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registered Securities any
event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the selling holders, counsel
for the underwriters or agents or counsel for the Company, to amend
the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion any of such counsel, at any
such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the
Securities Act or the rules and regulations of the SEC thereunder,
the Company will promptly prepare and file with the SEC, subject to
Section 3.1(c), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
(g) The Company will use its best efforts, in cooperation
with the selling holders or the underwriters or agents, as the case
may be, to qualify the Registered Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions
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as the selling holders or the managing underwriter or agents, as the case
may be, may designate; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Registered
Securities have been qualified as above provided.
(h) The Company will use its best efforts to effect the
listing of the Registered Securities covered by a Registration
Statement not then listed on each national securities exchange on
which similar securities issued by the Company are then listed or, if
no such securities are then listed, on any national securities
exchange if, in either case, so requested by (i) Whitehall with
respect to the Debentures for so long as it is a holder of Debentures
or (ii) GSMC with respect to the Notes for so long as it is a holder
of Notes, or if requested by the managing underwriter.
(i) The Company shall make such representations and
warranties to the selling holders and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten public offerings.
(j) On the effective date of the Registration Statement or,
in the case of an underwritten offering, on the date of delivery of
the Registered Securities sold pursuant thereto, the Company shall
cause to be delivered to the selling holders and the underwriters or
agents, if any, opinions of counsel for the Company with respect to,
among other things, the due incorporation and good standing of the
Company; the qualification of the Company to transact business as
foreign corporation; the due authorization, execution and delivery of
this Agreement; the due authorization, execution, authentication and
issuance, and the validity and enforceability, of the Notes or
Debentures, as the case may be; the absence of material legal or
governmental proceedings involving the Company; the absence of a
breach by the Company of, or a default under, agreements binding the
Company; the absence of governmental approvals required to be
obtained in connection with the registration, offering and sale of
the Notes or Debentures as the case may be; the compliance as to form
of the Registration Statement and any documents incorporated by
reference therein with the requirements of the Securities Act; the
effectiveness of such Registration Statement under the Securities
Act; the security interest created by the Collateral Trust Agreement
and a statement that, as of the date of the opinion and of the
Registration Statement or most recent post-effective amendment
thereto, as the case may be, nothing has come to the attention of
such counsel which causes them to believe that either the
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<PAGE>
<PAGE> 12
Registration Statement or the Prospectus included therein, as then amended
or supplemented, or the documents incorporate by reference therein (in the
case of such documents, in the light of the circumstances existing at the
time that such documents were filed with the Commission under the Exchange
Act), contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein not misleading (it
being understood that such counsel need express no opinion as to the
financial statements and other financial data included therein or omitted
therefrom).
In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" of, or shall have a "conflict of
interest" with, the Company (each such term as defined in Schedule E
to the By-Laws of the National Association of Securities Dealers
("NASD")), and such broker-dealer shall underwrite debt securities of
the Company or participate as a member of an underwriting syndicate
or selling group or otherwise "assist in the distribution" (within
the meaning of the Rules of Fair Practice and the By-Laws of the
NASD) thereof, whether as a holder of such debt securities of the
Company or as an underwriter, a placement or sales agent or a broker
or dealer in respect of such debt securities or otherwise, the
Company shall assist such broker-dealer, in complying with the
requirements of such Rules and By-Laws, including, without
limitation, by (1) if such Rules or By-Laws, including Schedule E
thereto, shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule) to participate in the
preparation of the registration statement relating to such debt
securities to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by the
Registration Statement is an underwritten offering or is made through
a placement or sales agent, to recommend the maximum public offering
price of such debt securities, (2) paying the fees and expenses of
any such qualified independent underwriter and indemnifying the
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 3.4 hereof, and
(3) providing to such broker-dealer such information concerning the
Company and its affiliates, officers, directors, employees and
securityholders as may be required in order for such broker-dealer to
comply with the requirements of Schedule E to the NASD Bylaws and
Section 44 of the Rules of Fair Practice.
(k) Immediately prior to the effectiveness of the
Registration Statement or, in the case of an underwritten offering,
at the time of delivery of any Registered Securities sold pursuant
thereto, the Company shall cause to be delivered to the selling
holders and the underwriters or agents, if any, letters from the
Company's independent public accountants stating that such
accountants are independent public accountants with respect to the
Company within the meaning of the Securities Act and the applicable
published rules and
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<PAGE>
<PAGE> 13
regulations of the SEC thereunder, and otherwise in customary form and
covering such financial and accounting matters as are customarily covered
by letters of the independent public accountants delivered in connection
with primary underwritten public offerings.
(l) If the managing underwriter or agent so requests, the
underwriting or agency agreement shall set forth in full the
provisions hereof relating to covenants, registration expenses,
lock-up agreements, indemnification and contribution contained in
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.8 and 3.9, with such changes
therein as may be agreed to by the managing underwriter or agent, the
Company and the selling holders.
(m) The Company shall deliver such documents and certificates
as may be requested by any selling holder or the underwriters or
agents, if any, to evidence compliance with Section 3.1(i) and with
any customary conditions contained in the underwriting or agency
agreement, if any.
(n) The Company will make available for inspection by
representatives of the selling holders and the underwriters or agents
participating in such offering, any attorney or accountant retained
by such selling holders or underwriters or agents and, with respect
to any private placement of Notes or Debentures, as the case may be,
upon notice to the Company, prospective purchasers, all financial and
other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such
representative, underwriter or agent, attorney or accountant in
connection with the preparation of the Registration Statement;
provided, however, that any records, information or documents that
are designated by the Company in writing as confidential shall be
kept confidential by each such person (by, among other things, if so
requested by the Company, entering into a confidentiality agreement
in form and substance satisfactory to the Company) unless such
records, information or documents become part of the public domain
through no fault of such person or unless disclosure thereof is
required by court or administrative order or the SEC (including the
federal securities law).
(o) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby (or 90 days if such period is a
fiscal year), an earnings statement of the Company (in form complying
with the provisions of Rule 158 under the rules and regulations of
the SEC under the Securities Act), covering a period of 12 months
beginning after the effective date of the Registration Statement but
not later than the first day of the Company's fiscal quarter next
following such effective date.
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<PAGE> 14
(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 Notes or Debentures, as the case may be (an
"Indenture"), under the Trust Indenture Act of 1939. In the event
that any modification or amendment to such Indenture is required by
such Act or the rules and regulations thereunder or by the staff of
the SEC in order so to qualify the Indenture, the Company shall
without delay solicit consents of holders (as defined in such
Indenture) in the manner and with the effect provided by such
Indenture, pursuant to which such holders shall be asked to consent
to such modifications or amendments, but only such modifications or
amendments, as shall be so required. In connection with any such
solicitation, the Company shall recommend that Holders of Notes or
Debentures, as the case may be, consent to such modifications or
amendments. Notwithstanding the foregoing, in the event that such
modifications or amendments may be effected without the consent of
such Holders pursuant to the applicable provisions of the Indenture,
the Company shall use its best efforts to effect such modifications
or amendments without such consent.
(ii) In the event that any such amendment or
modification involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
3.2. Covenants of the Selling Holders. (a) Each selling
holder shall use its best efforts to furnish to the Company such
information regarding the distribution of such Registered Securities as is
customarily requested from selling holders in underwritten public
offerings.
(b) Each selling holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described
in Section 3.1(a)(vi), such selling holder will forthwith discontinue the
disposition of its Registered Securities pursuant to the Registration
Statement until such selling holder's receipt of the copies of a
supplemented or amended Prospectus contemplated by Section 3.1(f), or until
it is advised in writing by the Company that the use of such Prospectus may
be resumed. If the Company shall give any such notice, the Company shall
extend the period of time during which the Company is required to keep the
Registration Statement effective and usable by the number of days during
the period from the date of receipt of such notice to the date when each
selling holder of
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<PAGE> 15
Registered Securities covered by such Registration Statement either
receives the copies of a supplemented or amended Prospectus contemplated by
Section 3.1(f) or is advised in writing by the Company that the use of such
Prospectus may be resumed.
(c) Each selling holder agrees to make customary
representations and warranties to the Company and the underwriters or
agents, if any, in form, substance and scope as are customarily made by
selling holders in underwritten public offerings, but no selling holders,
as such, shall be required to make any representation or warranty as to the
accuracy or completeness of the Registration Statement (except as to
written information furnished to the Company by such selling holder
expressly for use therein).
(d) Each selling holder agrees to provide the Company, upon
receipt of its request, with such information about the selling holder to
enable the Company to comply with the requirements of the Securities Act
and to execute such certificates as the Company may reasonably request in
connection with such information and otherwise to satisfy any requirements
of law.
3.3. Registration Expenses. (a) The Company will pay and
bear all costs and expenses incident to the performance of its obligations
under this Agreement with respect to each registration pursuant to
Section 2.1 or 2.2, including, without limitation:
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectuses and the
Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the selling holders or the underwriters
or agents, as the case may be;
(ii) the preparation, printing and distribution of any
underwriting or agency agreement, certificates representing the
Registered Securities, any Blue Sky Survey and other documents
relating to the performance of and compliance with this Agreement;
(iii) the fees and disbursements of the Company's counsel and
accountants and the reasonable fees and disbursements of one counsel
retained by the selling holders pursuant to Section 3.3(b);
(iv) the fees and disbursements of the underwriters or agents
customarily paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained in
connection with the Registration Statement, but excluding
underwriting discounts and commissions and transfer taxes, if any;
(v) the qualification of the Registered Securities under
applicable securities laws in accordance with Section 3.1(g) and any
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<PAGE> 16
filing for review of the offering with the NASD, including filing fees and
fees and disbursements of counsel for the selling holders and the
underwriters or agents, as the case may be, in connection therewith, in
connection with any Blue Sky Survey; and
(vi) all fees and expenses incurred in connection with the
listing, if any, of any of the Registered Securities on any
securities exchange pursuant to Section 3.1(h).
(b) In connection with the filing of each Registration
Statement, the Company will reimburse the selling holders for the
reasonable fees and disbursements of one firm of legal counsel, which shall
be chosen by the Representative(s) and shall be reasonably satisfactory to
the Company.
(c) Each selling holder will pay and bear all costs and
expenses incident to the delivery of the Registered Securities to be sold
by it, including any transfer taxes payable upon the sale of such
Registered Securities to the purchaser thereof and any underwriting
discounts or commissions payable to underwriters or agents in connection
therewith.
3.4. Indemnification. (a) In connection with each
registration pursuant to Section 2.1 or 2.2, the Company agrees to
indemnify and hold harmless each selling holder, each underwriter or agent
participating in such offering, and each person, if any, who controls any
selling holder or any such underwriter or agent within the meaning of
Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of an untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of
a material fact necessary 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
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<PAGE> 17
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by the selling
holders and by the underwriters or agents), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that, with respect to any selling holder or any
underwriter or agent, this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement
or omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information furnished to the Company by any
such selling holder or underwriter or agent, respectively, expressly for
use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each selling holder agrees severally, and not jointly, to
indemnify and hold harmless the Company, its directors, each of its
officers who signed a Registration Statement, each underwriter or agent
participating in such offering and the other selling holders, and each
person, if any, who controls the Company, any such underwriter or agent and
any other selling holder within the meaning of Section 15 of the Securities
Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 3.4(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such selling holder
expressly for use in the Registration Statement (or any amendment thereto),
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) The obligations of the Company under Section 3.4(a) and
of the selling holders under Section 3.4(b) to indemnify any underwriter or
agent who participates in an offering (or any person, if any, controlling
such underwriter or agent within the meaning of Section 15 of the
Securities Act) shall be conditioned upon the underwriting or agency
agreement with such underwriter or agent containing an agreement by such
underwriter or agent to indemnify and hold harmless the Company, its
directors, each of its officers who signed a Registration Statement, and
each selling holder, and each person, if any, who controls the Company or
any such selling holder within the meaning of Section 15 of the Securities
Act, against any and all loss, liability, claim, damage and expense
described in the indemnity
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<PAGE> 18
contained in Section 3.4(a), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such underwriter or agent expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(d) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve the indemnifying party from any liability it may
have under this Agreement, except to the extent that the indemnifying party
is materially prejudiced thereby. If it so elects, after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel
chosen by it, provided that the indemnified party shall be entitled to
participate in the defense of such action with counsel chosen by it, the
fees and expenses of which, subject to the next sentence, shall be paid by
the indemnifying party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel for
(i) the Company, its officer, directors and controlling persons as a group,
(ii) the selling holders and their controlling persons as a group and (iii)
the underwriters or agents and their controlling persons as a group, in
each case, in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
3.5. Contribution. (a) In order to provide for just and
equitable contribution in circumstances under which the indemnity provided
for in this Section 3 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, the selling holders and the underwriters or agents shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity incurred by the
Company, the selling holders and one or more of the underwriters or agents,
as incurred, in such proportions that (i) the underwriters or agents are
responsible for that portion represented by the percentage that the
underwriting discounts and commissions for the offering appearing on the
cover page of the Prospectus (or, if not set forth on the cover page, that
are applicable to the offering) bear to the initial public offering price
appearing on the cover page (or, if not set forth on the cover page, that
are applicable to the offering) and (ii) each of the selling holders and
the Company is responsible for an equal portion of the balance.
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<PAGE> 19
(b) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 3.5, each person, if any,
who controls an underwriter or agent within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as such
underwriter or agent, and each director of the Company, each officer of the
Company who signed a Registration Statement, and each person, if any, who
controls the Company or a selling holder within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the
Company or such selling holder, as the case may be.
3.6. Representations, Warranties and Indemnities to Survive.
The indemnity and contribution agreements contained in this Section 3 and
the representations and warranties of the Company referred to in
Section 3.1(i) shall remain operative and in full force and effect
regardless of (i) any termination of any underwriting or agency agreement,
(ii) any investigation made by or on behalf of the selling holders, the
Company or any underwriter or agent or controlling person or (iii) the
consummation of the sale or successive resales of the Registered
Securities.
3.7. Rule 144. The Company covenants that it will continue to
file the reports required to be filed by it under the Securities Act and
the rules and regulations of the SEC thereunder and the Exchange Act and
the rules and regulations of the SEC thereunder and it will take such
further action as any Holder of Debentures or Notes may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Notes or Debentures, as the case may be, without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time.
Upon the request of any Holder of Notes or Debentures, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
3.8. Participation in Underwritten Offerings. No Holder of
Notes or Debentures may participate in any underwritten offering hereunder
unless:
(a) Such Holder executes a power of attorney appointing one
or more (up to three) attorneys (each, a "Representative") designated
by the selling holders proposing to sell a majority of the Notes or
Debentures, as the case may be, proposed to be sold by all selling
holders. Each such Representative shall be authorized, on customary
terms, to execute the underwriting agreement on behalf of each
selling holder and to otherwise act for the selling holders in
connection with the offering.
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<PAGE> 20
(b) Such Holder directly through its Representative enters
into an underwriting agreement with the Company, the other selling
holders, any selling securityholders and the underwriters, which
underwriting agreement shall comply with the provisions of this
Section 3.
(c) Such Holder executes all questionnaires and other
documents required by the underwriting agreement to be executed by
such Holder.
3.9. Lock-Up Agreements. (a) The Company agrees that it will
not, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any debt securities of the Company, in
the case of any registration pursuant to Section 2.1, for a period of 90
days from the effective date of any Registration Statement.
(b) Each Holder whose Notes and/or Debentures are covered by
a Registration Statement filed pursuant to Section 2.1 or 2.2 agrees that
it will not, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any debt securities of the
Company (except such Notes and/or Debentures covered by such Registration
Statement) for a period of 90 days from the effective date of any
Registration Statement.
(c) The lock-up agreements set forth in Sections 3.9(a) and
3.9(b) shall be subject to customary exceptions that may be contained in an
underwriting agreement if any such registration involves an underwritten
offering.
4. Miscellaneous.
4.1. No Inconsistent Agreements. The Company covenants and
agrees that it shall not grant registration rights with respect to
Registrable Securities or any other securities which would be inconsistent
with the terms contained in this Agreement. The Company is not currently a
party to any agreement with respect to any of its equity or debt securities
granting any registration rights to any person, other than the Warrant
Agreement and the Stock Appreciation Rights Agreement.
4.2. Specific Performance. The parties hereto acknowledge
that there may be no adequate remedy at law if any party fails to perform
any of its obligations hereunder and that each party may be irreparably
harmed by any such failure, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations
of any other party under this Agreement in accordance with the terms and
conditions of this Agreement, in any court of the United States or any
State thereof having jurisdiction.
F-20
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<PAGE> 21
4.3. Notices. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be deemed
to have been duly given when delivered by hand, if delivered personally or
by courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 1270 Avenue of the Americas, New York, New York
10020, Attention: Secretary; if to GSMC, to it at 85 Broad Street, New
York, New York 10004; if to Whitehall, to it at 85 Broad Street, New York,
New York 10004; and if to a Holder, to the address of such Holder set forth
in the security register or other records of the Company, or to such other
address as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
4.4. Parties in Interest. All the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any holder of Notes or
Debentures shall acquire Notes or Debentures, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a party
hereto for all purposes and such Notes or Debentures shall be held subject
to all of the terms of this Agreement, and by taking and holding such Notes
or Debentures such transferee shall be entitled to receive the benefits of
and be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement. If the Company shall so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Notes or Debentures subject to all of the terms
hereof.
4.5. Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any holder of Notes or Debentures, any director,
officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of
the foregoing, and shall survive delivery of and payment for the Notes and
Debentures pursuant to the Loan Agreement and Debenture Purchase Agreement
and the transfer and registration of Notes or Debentures by such holder.
4.6. LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4.7. Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for convenience
only, do
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<PAGE> 22
not constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
4.8. Amendments. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the holders of at
least 75 percent in aggregate principal amount of the Notes or Debentures,
as the case may be, at the time outstanding. Each holder of any Notes or
Debentures, as the case may be, at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 4.8,
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Notes or Debentures, as the case may be, or is
delivered to such holder.
4.9. Inspection. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and addresses of
all the holders of Notes and Debentures shall be made available for
inspection and copying on any business day, on reasonable notice, by any
holder of Notes or Debentures, as the case may be, at the offices of the
Company at the address thereof set forth in Section 4.3.
4.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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<PAGE> 23
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first written above.
ROCKEFELLER CENTER PROPERTIES, INC.
By:
Richard M. Scarlata
President
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate Funding
Corp., General Partner
By:
Steven T. Mnuchin
President
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General Partner
By: WH Advisors, Inc. V, General
Partner
By:
Ralph F. Rosenberg
Vice-President
F-23
<PAGE>
EX. 4.3
[EXECUTION COPY]
SAR AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.
and
CHEMICAL BANK,
SAR Agent
Dated as of December 18, 1994
<PAGE>
<PAGE> i
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
<PAGE>
<PAGE> ii
SAR Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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 . . . . . . . . . . . . . . . . . . . . . . . 7
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 . . . . . . . . . . . . . . 9
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
<PAGE>
<PAGE> iii
6.3. Registration Expenses . . . . . . . . . . . . . . . . . . . 24
6.4. Indemnification . . . . . . . . . . . . . . . . . . . . . . 25
6.5. Contribution . . . . . . . . . . . . . . . . . . . . . . . 27
6.6. Representations, Warranties and Indemnities to Survive . . 27
6.7. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.8. Participation in Underwritten Offerings . . . . . . . . . . 28
6.9. Lock-Up Agreements . . . . . . . . . . . . . . . . . . . . 28
7. SAR TRANSFER BOOKS . . . . . . . . . . . . . . . . . . . . . . . 29
8. SAR HOLDERS
8.1. No Voting Rights . . . . . . . . . . . . . . . . . . . . . 31
8.2. Right of Action . . . . . . . . . . . . . . . . . . . . . . 30
9. SAR AGENT
9.1. Nature of Duties and Responsibilities Assumed . . . . . . . 31
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 . . . . . . . . . . . . . . . . . 34
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 . . . . . . . . . . . . . . . . 37
11.4. Mutilated, Destroyed, Lost and Stolen SAR Certificates . . 37
11.5. Removal of Legends . . . . . . . . . . . . . . . . . . . . 37
11.6. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 38
11.7. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 38
11.8. Persons Benefitting . . . . . . . . . . . . . . . . . . . 38
11.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 39
11.10. Amendments . . . . . . . . . . . . . . . . . . . . . . . . 39
11.11. Headings . . . . . . . . . . . . . . . . . . . . . . . . . 39
<PAGE>
<PAGE> iv
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
EXHIBIT A Form of SAR Certificate . . . . . . . . . . . . . . . . A-1
<PAGE>
<PAGE> 1
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,
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<PAGE> 2
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.
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,
<PAGE>
<PAGE> 3
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: 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.
<PAGE>
<PAGE> 4
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 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).
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<PAGE> 5
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.
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.
<PAGE>
<PAGE> 6
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.
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
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<PAGE> 7
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.
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
<PAGE>
<PAGE> 8
(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 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
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<PAGE> 9
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.
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.
<PAGE>
<PAGE> 10
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 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
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<PAGE> 11
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 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
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<PAGE> 12
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, 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.
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<PAGE> 13
(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
Section 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-offered Warrants for Common
Stock, (ii) an exchange of all outstanding nonpublicly-offered SARs 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.
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<PAGE> 14
(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.
(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
<PAGE>
<PAGE> 15
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.
(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
<PAGE>
<PAGE> 16
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 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
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<PAGE> 17
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 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
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<PAGE> 18
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:
(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.
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<PAGE> 19
(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 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
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<PAGE> 20
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
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
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<PAGE> 21
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).
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
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<PAGE> 22
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.
(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).
<PAGE>
<PAGE> 23
(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 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. Notwith-
standing 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.
<PAGE>
<PAGE> 24
(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).
(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;
<PAGE>
<PAGE> 25
(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 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
<PAGE>
<PAGE> 26
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;
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 <PAGE>
<PAGE> 27
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 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 <PAGE>
<PAGE> 28
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 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 Underlying Securities may reasonably
request, all to the extent required from time to time to enable such Holder
to sell Underlying Securities 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 Underlying Securities, 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:<PAGE>
<PAGE> 29
(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 SARs 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 SARs or Underlying Securities or
securities convertible into or exchangeable or exercisable for such
Underlying Securities, 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 Underlying
Securities.
(b) Each Holder of SARs whose SARs and Underlying Securities
are covered by a Registration Statement filed pursuant to Section 5.1 or
5.2 agrees that it will not, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, any SARs or
Underlying Securities (other than the SARs and Underlying Securities
covered by such Registration Statement) or other securities convertible
into or exchangeable or exercisable for such SARs or Underlying Securities,
for a period of 90 days from the effective date of the Registration
Statement pertaining to such SARs and Underlying Securities.
(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 <PAGE>
<PAGE> 30
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 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.
<PAGE>
<PAGE> 31
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 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 <PAGE>
<PAGE> 32
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.
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.
<PAGE>
<PAGE> 33
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 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, <PAGE>
<PAGE> 34
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:
(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;<PAGE>
<PAGE> 35
(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.
(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.
<PAGE>
<PAGE> 36
(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 and convertible into or exchangeable for, or giving any Person
a right to subscribe for or acquire, capital stock of the Company.
<PAGE>
<PAGE> 37
(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.
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 <PAGE>
<PAGE> 38
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>
<PAGE> 39
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>
<PAGE> 40
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.
<PAGE>
<PAGE> 41
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>
<PAGE> 1
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
<PAGE>
<PAGE> 2
SARs would be entitled upon an exchange of its SARs for Warrants in
accordance with 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
<PAGE>
<PAGE> 3
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 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
<PAGE>
<PAGE> 4
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.
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>
<PAGE> 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>
<PAGE> 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>
<PAGE> 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>
<PAGE> 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:
Social Security
or other
Identifying
Names of Number of Number of
Assignees Address Assignee(s) SARs
<PAGE>
<PAGE> 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>
<PAGE> 1
As of December 29, 1994
Chemical Bank, agent
430 West 33rd Street
New York, N.Y. 10001
Ladies and Gentlemen:
We refer to the SAR Agreement dated as of December 18, 1994
(the "SAR Agreement") between the undersigned (the "Company") and you.
Unless otherwise defined herein, the terms defined in the SAR Agreement
shall be used herein as therein defined.
It is hereby agreed by you and us that the numerical reference
to the number of SARs to be issued under the SAR Agreement in (i) the
preamble to the SAR Agreement and (ii) Section 2.2 of the SAR Agreement
should be deleted and replaced with "5,349,541".
You are hereby directed to exchange the Temporary Stock
Appreciation Rights Certificate (No. 0001) issued in the name of Whitehall
Street Real Estate Limited Partnership V evidencing 5,348,541 SARs, upon
presentation thereof, for a permanent Stock Appreciation Rights
Certificate(s) evidencing an aggregate of 5,349,541 Stock Appreciation
Rights.
On and after the effective date of this letter amendment, each
reference in the SAR Agreement to "this Agreement", "hereunder", "hereof"
or words of like import referring to the SAR Agreement, "thereunder",
"thereof" or words of like import referring to the SAR Agreement, shall
mean and be a reference to the SAR Agreement as amended by this letter
amendment. The SAR Agreement, as amended by this letter amendment, is and
shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.
Your agreement to this letter amendment will be evidenced by
the execution hereof. This letter amendment is subject to the provisions
of Section 11.10 of the SAR Agreement.
<PAGE>
<PAGE> 2
This letter amendment may be executed in counterparts by the
parties hereto, each of which counterparts shall be an original and all of
which taken together shall constitute one and the same letter amendment.
Very truly yours,
ROCKEFELLER CENTER
PROPERTIES, INC.
By: /s/ Richard M. Scarlata
Title: President & Chief
Executive Officer
Agreed as of the date
first above written:
CHEMICAL BANK
By: /s/ Michael A. Nespoli
Name: Michael A. Nespoli
Title: Vice President
Acknowledged as of the date
first above written:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General Partner
By: WH Advisors, Inc. V, General Partner
By: /s/ Ralph F. Rosenberg
Name: Ralph F. Rosenberg
Title: Vice President
<PAGE>
EX. 4.4
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>
<PAGE> i
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
<PAGE>
<PAGE> ii
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
of Assets . . . . . . . . . . . . . . . . . . . 33
<PAGE>
<PAGE> iii
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
<PAGE>
<PAGE> iv
9.11 Entirety . . . . . . . . . . . . . . . . . . . . 48
9.12 Survival of Representations and
Warranties . . . . . . . . . . . . . . . . . . 48
Schedules
Schedule 3.01 - Fees
Schedule 4.09 - Indebtedness
Schedule 4.10 - Litigation
Schedule 4.11 - Material Agreements
Schedule 5.05 - Insurance
Exhibits
Exhibit A - Form of Floating Rate Promissory Note
Exhibit B - Form of Officer's Certificate
Exhibit C - Form of Assignment of Mortgage
Exhibit D - Form of Collateral Trust Agreement
Exhibit E - Form of Letter Agreement
Exhibit F - Form of Registration Rights Agreement
<PAGE>
<PAGE> 1
LOAN AGREEMENT
LOAN AGREEMENT, dated as of December 18, 1994 (the "Loan
Agreement"), among Rockefeller Center Properties, Inc., a Delaware
corporation (the "Borrower"), the lenders identified on the signature pages
hereto (each, a "Lender" and, collectively, the "Lenders") and Goldman
Sachs Mortgage Company, a New York limited partnership, as Agent for the
Lenders (the "Agent").
RECITALS
WHEREAS, the Borrower has requested that the Lenders make loans
to it in the aggregate principal amount of $150,000,000, the proceeds of
such loans to be used by the Borrower to retire its outstanding commercial
paper, to pay fees and expenses in connection with this Loan Agreement and
to satisfy the interest rate swap agreements specified in Schedule 4.09;
and
WHEREAS, the Lenders have agreed to make the requested loans to
the Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.01. Definitions. As used herein, the following terms shall
have the meanings specified herein unless the context otherwise requires.
Defined terms herein shall include in the singular number the plural and in
the plural the singular:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all
partners, directors and officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation or a partnership if such Person possesses,
directly or indirectly, the power (i) to vote 10% or more of the securities
having ordinary voting power for the election of directors of such
corporation or to vote 10% or more of the partnership interests of such
partnership or (ii) to direct or cause direction of the management and
policies of such corporation or partnership, whether through the ownership
of voting securities, as managing or general partner, by contract or
otherwise.
<PAGE>
<PAGE> 2
"Assignment of Mortgage" means the Assignment of Mortgage in
the form of Exhibit C hereto from the Borrower to the Collateral Agent
providing for an assignment of the Mortgage as security for the Loan, the
14% Debentures and the Indenture Securities.
"Base Rate" means the average of the rates of interest per
annum publicly announced by each of Citibank, N.A., Chemical Bank and Chase
Manhattan Bank, N.A. from time to time as its prime or reference rate, the
Base Rate to change as and when the base rate of any such bank shall
change.
"Business Day" means any day other than a Saturday, a Sunday, a
legal holiday in New York, New York or a day on which banking institutions
in New York, New York are authorized by law or other governmental action to
close; provided, however, if the day in question relates to the
determination of the LIBO Rate, an Interest Period or an Interest Payment
Date, a "Business Day" means a day upon which banks are open for the
transaction of business in London, England and New York, New York and
dealings in U.S. dollar deposits are also carried on in the London
interbank market.
"Cash Equivalents" means (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support thereof) having maturities
of not more than six months from the date of acquisition, (ii) U.S. dollar
denominated time deposits and certificates of deposit of a bank (an
"Approved Bank") that is either (x) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(y) any bank whose short-term commercial paper rating from S&P is at least
A-1 or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof, in each case with maturities of not more than six
months from the date of acquisition, (iii) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued or guaranteed by any Approved
Bank rated at least A-1 (or the equivalent thereof) by S&P or at least P-1
(or the equivalent thereof) by Moody's and maturing within six months of
the date of acquisition, (iv) repurchase agreements with a bank or trust
company or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which the
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<PAGE>
<PAGE> 3
Borrower shall have a perfected first priority security interest (subject
to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase obligations,
and (v) publicly traded short-term notes, bonds and other obligations
having short-term unsecured debt ratings of at least A-1 (or the equivalent
thereof) by S&P or at least P-1 (or the equivalent thereof) by Moody's.
"Closing Date" has the meaning specified in Section 2.01
hereof.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral Agent" means the Trustee under the Collateral Trust
Agreement.
"Collateral Trust Agreement" means the Collateral Trust
Agreement in the form of Exhibit D hereto among the Collateral Agent, the
Agent, Whitehall, the Borrower and the Trustee providing for a pledge of
the Mortgage Note and other collateral as security for the Loans, the 14%
Debentures and the Indenture Securities.
"Common Stock" means common shares, par value $.01, of the
Borrower.
"Consistent Basis" or "consistent basis" means, with regard to
the application of accounting principles, accounting principles consistent
in all material respects with the accounting principles used and applied in
preparation of the financial statements previously delivered to the Lenders
and referred to in Section 4.06.
"Debenture Purchase Agreement" means the Debenture Purchase
Agreement dated the date hereof between the Borrower and Whitehall.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
thereunder.
"ERISA Affiliate" means each person (as defined in Section 3(9)
of ERISA) which together with the Borrower would be deemed to be a member
of the same "controlled
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<PAGE>
<PAGE> 4
group" within the meaning of Section 414(b), (c), (m) or (o) of the Code.
"Event of Default" has the meaning specified in Section 7.01
hereof.
"Fixed Amortization Amount" has the meaning specified in
Section 2.05(b).
"14% Debentures" means the Borrower's 14% Debentures issued
pursuant to the Debenture Purchase Agreement.
"Generally Accepted Accounting Principles" or "generally
accepted accounting principles" means generally accepted accounting
principles in the United States in effect as of the date of this Loan
Agreement.
"Guaranty Obligations" means any obligations (other than
endorsements in the ordinary course of business of negotiable instruments
for deposit or collection) guaranteeing any Indebtedness, leases, dividends
or other obligations of any other Person in any manner, whether direct or
indirect, and including, without limitation, any obligation, whether or not
contingent, (i) to purchase any such Indebtedness or other obligation or
any property constituting security therefor, (ii) to advance or provide
funds or other support for the payment or purchase of such Indebtedness or
obligation or to maintain working capital, solvency or other balance sheet
condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements
or arrangements), (iii) to lease or purchase property, securities or
services primarily for the purpose of assuring the owner of such
Indebtedness or obligation, or (iv) to otherwise assure or hold harmless
the owner of such Indebtedness or obligation against loss in respect
thereof.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money,
(ii) the deferred purchase price of assets which in accordance with
generally accepted accounting principles would be shown to be a liability
(or on the liability side of a balance sheet) of such Person, (iii) all
Guaranty Obligations of such Person, (iv) the maximum amount of all letters
of credit issued or acceptance facilities established for the account of
such Person and, without duplication, all drafts drawn thereunder (other
than letters of credit (x) supporting other Indebtedness of such Person, or
(y) offset by a like amount of cash or government securities held in escrow
to secure such letter of credit
-4-
<PAGE>
<PAGE> 5
and draws thereunder), (v) all capitalized lease obligations of such
Person, (vi) all indebtedness of another Person secured by any lien on any
property of such Person, whether or not such indebtedness has been assumed,
(vii) all obligations under take-or-pay or similar arrangements or under
interest rate swap, currency swap, or commodities agreements of such
Person, (viii) indebtedness created or arising under any conditional sale
or title retention agreement of such Person, (ix) obligations of such
Person with respect to withdrawal liability or insufficiency in excess of
$5,000,000 (calculated on an accumulated benefit obligation basis) under
ERISA or under any qualified plan or related trust and (x) all other
obligations which in accordance with generally accepted accounting
principles would be shown to be a liability (or on the liability side of a
balance sheet) of such Person; provided, however, that Indebtedness shall
not include trade payables and accrued expenses arising or incurred in the
ordinary course of business.
"Indenture Securities" means the securities of the Borrower
issued pursuant to the 1985 Indenture.
"Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof among the Agent, the Lenders, Whitehall and the
Borrower.
"Interest Payment Date" means the last day of each Interest
Period.
"Interest Period" means (a) with respect to the initial
Interest Period, the period beginning on the Closing Date and ending on the
first day of the next succeeding March, June, September or December, as the
case may be, and (b) with respect to each succeeding Interest Period, the
three-month period beginning on the day after the end of the preceding
Interest Period; provided, however, (A) if any Interest Period would end on
a day which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, then the Interest
Period shall end on the next preceding Business Day), (B) no Interest
Period shall extend beyond the Maturity Date and (C) where an Interest
Period begins on a day for which there is no numerically corresponding day
in the calendar month in which the Interest Period is to end, such Interest
Period shall end on the last Business Day of such calendar month.
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<PAGE>
<PAGE> 6
"Lender" has the meaning given to such term in the first
paragraph of this Loan Agreement.
"Letter Agreement" means the letter agreement in the form of
Exhibit E hereto regarding the assignment by the Borrower of its title
insurance benefits to the Collateral Agent.
"LIBO Rate" means, with respect to each Interest Period, a rate
of interest per annum equal to either (i) the rate per annum for U.S.
dollar deposits in the London interbank Eurodollar market appearing on
Telerate Page 3750 as of 11:00 a.m. New York City time on the day that is
two Business Days before the first day of the applicable Interest Period or
(ii) if the rate referred to in the preceding subparagraph (i) is not
available or cannot be determined, the rate per annum as determined by the
Agent to be the rate per annum then being paid by first-class banking
organizations in the London interbank Eurodollar market at 11:00 a.m.
(New York City time) on the day that is two Business Days before the first
day of the applicable Interest Period, in each case in an amount
substantially equal to the then aggregate outstanding balance of the Loans
and for a period equal to three months.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, any financing or similar statement or notice
perfecting a security interest under the Uniform Commercial Code as adopted
and in effect in the relevant jurisdiction, or other similar recording or
notice statute, and any lease in the nature thereof).
"Loan" and "Loans" shall have the meanings given to such terms
in Section 2.01 hereof.
"Loan Documents" means this Loan Agreement, the Note, the
Assignment of Mortgage, the Collateral Trust Agreement, the Intercreditor
Agreement, the Registration Rights Agreement, the Letter Agreement, the
Debenture Purchase Agreement, the 14% Debentures, the Security Documents,
the Stock Appreciation Rights Agreement, the Stock Appreciation Rights, the
Warrant Agreement and the Warrants.
"Maturity Date" shall have the meaning given to such term in
Section 2.02(a) hereof.
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<PAGE>
<PAGE> 7
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means, collectively, the Mortgage and Security
Agreement, dated as of September 19, 1985, by RCPA and RCP to the Borrower,
the Consolidation, Extension, Modification and Spreader Agreement, dated as
of September 19, 1985, among RCPA, RCP and the Borrower, recorded with and
certified by the City Register of the City of New York, and the Assignment
of Rents, dated as of September 19, 1985, by RCPA and RCP to the Borrower,
recorded with and certified by the City Register of the City of New York,
each as amended from time to time.
"Mortgage Note" means, collectively, the Mortgage Note, dated
as of September 19, 1985, in the amount of $1,255,160,004, in favor of the
Borrower and the Consolidated Mortgage Note, dated as of September 19,
1985, in the amount of $44,839,996, each as amended from time to time.
"Net Cash Flow" means, for the period in question and based on
a cash basis of accounting (as modified to deduct accruals for any taxes
and insurance), (i) gross receipts and/or income related to the Mortgage
Note and Real Estate (including all rents, tax escrows, insurance proceeds,
condemnation proceeds, and any other receipts or payments actually received
by or on behalf of the Borrower under or in connection with the Real Estate
or the Mortgage Note except tax escrows and condemnation and insurance
proceeds legally or contractually required to be paid over to another
Person by the Borrower whether or not within the period in question) and
receipts from any other source, including the net proceeds of any sale of
equity by the Borrower, minus (ii) the sum of (x) those actual operating,
renting, administrative, legal and other ordinary expenses incurred by the
Borrower, (y) interest paid or (without duplication) accrued (on a straight
line basis) with respect to the Loan, the 14% Debentures, the Indenture
Securities and any other Indebtedness permitted by Section 6.01, and
(z) dividends paid to holders of Common Stock or (without duplication)
accrued (on a straight line basis) and distributions, if any, paid or
(without duplication) accrued (on a straight line basis) to holders of the
Warrants or the Stock Appreciation Rights as permitted by Section 6.11;
provided, however, for purposes of this calculation, expenses specified in
clause (x) shall not include (except for the accruals described in the
first parenthetical of this definition) any non-cash charges of the
Borrower, including, without limitation, any depreciation or amortization;
and, provided, further, that amounts accrued in respect of interest,
dividends or distributions as specified
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<PAGE>
<PAGE> 8
in clauses (y) and (z) above may not be used for any purpose other than
such interest payments, dividends or distributions, and, if not so used,
such amounts shall be included in the calculation of Net Cash Flow
hereunder.
"1985 Indenture" means the Indenture, dated as of September 15,
1985 from the Borrower to United States Trust Company (as successor to
Manufacturers Hanover Trust Company), as Trustee, as amended by the First
Supplemental Indenture dated as of December 15, 1985, as further amended
from time to time.
"1985 Loan Agreement" means the Loan Agreement dated as of
September 19, 1985 among the Borrower, RCPA and RCP, as amended from time
to time.
"Notes" means, collectively, the floating rate promissory notes
of the Borrower in favor of each of the Lenders evidencing the Loans and
provided in accordance with Section 2.04 hereof, as such promissory notes
may be amended, modified, supplemented or replaced from time to time.
"Permitted Investments" means cash and Cash Equivalents.
"Permitted Liens" means (i) Liens created by the Collateral
Trust Agreement, the Security Documents, the Assignment of Mortgage and the
Letter Agreement or otherwise created by, under or in connection with this
Loan Agreement or the other Loan Documents in favor of the Collateral
Agent; (ii) Liens for taxes not yet due or Liens for taxes being contested
in good faith by appropriate proceedings for which adequate reserves have
been established (and as to which the property subject to such Lien is not
yet subject to foreclosure, sale or loss on account thereof); (iii) Liens
in respect of property imposed by law arising in the ordinary conduct of
business such as materialmen's, mechanics', warehousemen's and other like
Liens; provided that such Liens secure only amounts not yet due and payable
or amounts being contested in good faith by appropriate proceedings for
which adequate reserves have been established (and as to which the property
subject to such lien is not yet subject to foreclosure, sale or loss on
account thereof); (iv) pledges or deposits made to secure payment under
worker's compensation insurance, unemployment insurance, pensions, social
security programs, public liability laws or similar legislation; (v) Liens
arising from good faith deposits in connection with or to secure
performance of tenders, statutory obligations, surety and
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appeal bonds, bids, leases, contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course of
business (other than obligations in respect of the payment of borrowed
money); (vi) easements, rights-of-way, restrictions (including zoning
restrictions), defects or irregularities in title and other similar charges
or encumbrances not, in any material respect, interfering with the ordinary
course of business of the Borrower; (vii) leases or subleases granted to
others, whether existing now or hereafter entered into, in the ordinary
conduct of business, not in any material respect, interfering with the
ordinary conduct of business of the Borrower; and (viii) any attachment or
judgment lien, unless the judgment it secures shall not, within 30 days
after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall not have been discharged within 30 days after the
expiration of any such stay.
"Person" means any individual, partnership, joint venture,
firm, corporation, association, trust or other enterprise (whether or not
incorporated), or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" means any multiemployer or tax-qualified single-employer
plan as defined in Section 4001 of ERISA.
"Plan Assets" means such term within the meaning and as defined
in the Department of Labor Regulation 29 CFR Section 2510.3-101, as amended,
and the advisory opinions or other administrative interpretations thereunder.
"Purchase Option" means the Purchase Option, dated as of
September 19, 1985, among RCPA, RCP and the Borrower.
"RCP" means Rockefeller Center Properties, a New York general
partnership.
"RCPA" means RCP Associates, a New York limited partnership.
"Real Estate" means the real property identified in Exhibit A
to the Mortgage and Security Agreement, dated as of September 19, 1985, by
RCPA and RCP to the Borrower, but excluding any Development Rights (as
defined therein) available to the land identified in Exhibit A and
Exhibit C thereto and the area identified in Exhibit B thereto.
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"Registration Rights Agreement" means the Registration Rights
Agreement in the form of Exhibit F hereto among the Borrower, the Agent and
Whitehall.
"Regulation G, T, U or X" means, respectively, Regulation G,
T, U and X of the Board of Governors of the Federal Reserve System as from
time to time in effect and any successor to all or a portion thereof.
"Required Lenders" means Lenders holding more than 50% of the
aggregate outstanding principal amount of the Loans.
"RGI Plan" shall have the meaning given to such term in Section
4.14 hereof.
"S&P" means Standard & Poor's Corporation.
"SAR Agent" means the SAR Agent under the Stock Appreciation
Rights Agreement.
"Security Documents" means the Assignment of Mortgage and the
letters of credit delivered in accordance with the Collateral Trust
Agreement.
"Stock Appreciation Rights" means the stock appreciation rights
issued pursuant to the Stock Appreciation Rights Agreement.
"Stock Appreciation Rights Agreement" means the Stock
Appreciation Rights Agreement dated the date hereof between the Borrower
and the SAR Agent.
"Subsidiary" of any Person means, with respect to such Person,
(i) any corporation more than 25% of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a majority of
the directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries, and
(ii) any partnership, association, joint venture or other entity in which
such Person directly or indirectly through Subsidiaries has more than 25%
equity interest at any time.
"Trustee" means United States Trust Company, as Trustee, under
the 1985 Indenture, or any successor trustee thereto.
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"Warrant Agent" means the Warrant Agent under the Warrant
Agreement.
"Warrant Agreement" means the Warrant Agreement dated the date
hereof between the Borrower and the Warrant Agent.
"Warrants" means the warrants for the purchase of shares of
Common Stock issued pursuant to the Warrant Agreement.
"Whitehall" means Whitehall Street Real Estate Limited
Partnership V, a Delaware limited partnership.
1.02. Computation of Time Periods. For purposes of
computation of periods of time hereunder, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding."
1.03. Accounting Terms. Accounting terms used but not
otherwise defined herein shall have the meanings provided, and be construed
in accordance with, generally accepted accounting principles.
SECTION 2
THE LOAN
2.01. The Loan. Subject to the terms and conditions set forth
herein, each Lender agrees to make a term loan (each a "Loan", and
collectively, the "Loans") to the Borrower on the Closing Date (as defined
below) in a principal amount equal to its loan commitment as set forth on
the signature pages hereto, the aggregate principal amount of the Loans to
be equal to $150,000,000. Each Lender will make available to the Agent no
later than 12:00 noon, New York time, on the Closing Date, the amount of
its Loan in immediately available funds at the office of the Agent
specified in Section 8.01. Upon receipt by the Agent of all such funds and
upon satisfaction of the conditions set forth in Section 3.01, the Agent
shall disburse the Loans to the Borrower by making a wire transfer in the
aggregate principal amount of the Loans to the account designated by the
Borrower. Subject to the provisions of Sections 3.01 and 3.02, the date of
the making of the Loans (the "Closing Date") shall occur as soon as
practicable but in no event more than 5 Business Days following
satisfaction of the condition specified in Section 3.01(k); provided, that
the Closing Date shall not occur later than the close
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of business on March 31, 1995 unless the parties hereto otherwise agree.
2.02. Maturity.
(a) Maturity Date. The Loans shall be due and payable on
December 31, 2000 (the "Maturity Date").
(b) Payment. The Borrower agrees to pay the outstanding
principal amount of the Loans, together with all accrued but unpaid
interest thereon and all other amounts owing from the Borrower to the
Lenders, on the Maturity Date.
2.03. Interest. The outstanding principal balance of the
Loans from time to time shall bear interest at a rate per annum equal to
the LIBO Rate plus 4%, or, in the event the interest rate conversion
provided by Section 2.08 is elected by the Agent, the Base Rate plus 3%,
from the Closing Date through and including the Maturity Date. The
interest rate shall be set two Business Days prior to the Closing Date and
two Business Days prior to the first day of each Interest Period
thereafter. Notwithstanding the foregoing, upon the occurrence and during
the continuance of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Loans shall bear interest, payable on
demand, at a rate equal to 4% per annum in excess of the rate otherwise
applicable hereunder. Except as otherwise provided herein, accrued
interest shall be payable in arrears on each Interest Payment Date.
2.04. The Notes. The Loans shall be evidenced by duly
executed floating rate promissory notes of the Borrower, one such Note for
each Lender in the principal amount of each such Lender's Loan,
substantially in the form of Exhibit A attached hereto.
2.05. Prepayments.
(a) Voluntary Prepayments. The Borrower shall have the right
to prepay the Loans at any time in whole or in part upon 30 days advance
written notice to the Agent; provided, however, such prepayments may be
made only on the last day of an Interest Period (unless the Borrower pays
the breakage costs provided for in Section 2.10 hereof). Voluntary
prepayments made during the period from the Closing Date through the first
anniversary thereof shall be made at 103% of the principal amount prepaid;
voluntary prepayments made during the period from the day after the first
anniversary of the Closing Date through the second anniver-
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sary of the Closing Date shall be made at 101.5% of the principal amount
prepaid; and voluntary prepayments made thereafter shall be made at 100% of
the principal amount prepaid, in each case with interest accrued to the
date of prepayment. Voluntary prepayments of the Loans shall be applied
first to accrued but unpaid interest and then to the principal balance of
the Loans. Amounts prepaid hereunder may not be reborrowed.
(b) Mandatory Prepayments. On each Interest Payment Date
commencing June 1, 1995 through the Maturity Date the Borrower shall prepay
the Loans in an amount equal to Net Cash Flow calculated as of the last day
of the most recent fiscal quarter; provided, however, that for each fiscal
year through 1999, the prepayment to be made by the Borrower on the last
Interest Payment Date in each such fiscal year shall be in an amount equal
to the greater of (i) the amount payable hereunder pursuant to the
preceding clause and (ii) the Fixed Amortization Amount minus the aggregate
amount of prepayments previously made pursuant to this Section 2.05(b)
during such fiscal year. "Fixed Amortization Amount" means, for 1995,
$3,000,000, for 1996, $9,000,000, for 1997, $10,000,000, for 1998,
$12,000,000 and, for 1999, $15,000,000. Amounts so prepaid may not be
reborrowed.
2.06. Payments and Computations. All payments hereunder shall
be made to the Agent, for the benefit of the Lenders, in U.S. dollars in
immediately available funds to the account of the Agent as notified to the
Borrower not later than 2:00 p.m. (New York City time) on the date when
due. Payments received after such time shall be deemed to have been
received on the next succeeding Business Day. Subject to the definition of
Interest Period, whenever any payment hereunder shall be stated to be due
on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of
interest and fees for the period of such extension). All computations of
interest and fees shall be made on the basis of actual number of days
elapsed over a year of 360 days. Interest shall accrue from and include
the date of the Loans, but exclude the date on which the Loans are repaid.
All payments received from the Borrower hereunder shall be applied in the
following order: first, to the payment of any costs and expenses and other
amounts due pursuant to Section 9.04; second, to the payment of any amount
due under this Loan Agreement other than any amount referred to in this
sentence; third, to the ratable payment of interest due on the Notes;
fourth, to the ratable payment of principal and premium, if any, due on the
Notes.
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<PAGE> 14
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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<PAGE> 15
(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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<PAGE> 16
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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<PAGE> 17
then outstanding principal balance of the Loans shall be converted to a
rate equal to the then Base Rate as in effect from time to time plus 3%.
If the Agent elects to convert the interest rate applicable to the Loans to
the Base Rate plus 3% pursuant to the terms of this Section 2.08 the
Borrower may, by notice to the Agent, require that the Agent furnish to the
Borrower a statement setting forth the basis for such election.
2.09. Break Funding Costs. The Borrower agrees that it will
reimburse each Lender on demand for any loss incurred or to be incurred by
such Lender in the reemployment of the funds released by any prepayment of
any principal balance of the Loans if such prepayment occurs other than on
the last day of an Interest Period. Such loss shall be the difference as
reasonably determined by such Lender between the amount that would have
been realized by such Lender for the remainder of such Interest Period
based on the LIBO Rate applicable for such Interest Period (without regard
to the applicable spread over the LIBO Rate referred to in Section 2.03)
and any lesser amount that would be realized by such Lender in reemploying
the funds received in prepayment by making loans of the same type (but
utilizing the then applicable LIBO Rate) in the principal amount prepaid
during the period from the date of prepayment to the last day of the then
applicable Interest Period.
2.10. Mitigation. The Lenders shall use reasonable efforts to
avoid or mitigate any indemnifiable Taxes, increased cost, reduced
receivable or suspension of the availability of the LIBO Rate under
Sections 2.07 and 2.08 to the greatest extent practicable (including
transferring the Loan to an affiliate) unless, in the opinion of any
Lender, such efforts would be likely to have any adverse effect upon it.
2.11. Pro Rata Treatment. Except to the extent otherwise
provided herein, each Loan, each payment or prepayment of principal of any
Loan, and each payment of interest on the Loans, shall be allocated pro
rata among the Lenders. The Agent agrees to forward to the Lenders such
principal and interest payments on the same Business Day as such amounts
are received, collected or applied by the Agent from the Borrower unless
the Agent receives such amounts after 2:00 p.m., New York time, in which
case such payments shall be forwarded by the Agent to the Lenders on the
next Business Day.
2.12. Sharing of Payments. Each Lender agrees that, in the
event that any Lender shall obtain any payment
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in respect of any Loan owing to such Lender under this Loan Agreement
through the exercise of a right of set-off, banker's lien, counterclaim or
otherwise in excess of its pro rata share as provided for in this Loan
Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Lenders' Loans, in such amounts and with such other
adjustments from time to time, as shall be equitable in order that all
Lenders share such payment in accordance with their respective ratable
shares as provided for in this Loan Agreement. Each Lender further agrees
that if a payment to a Lender (which is obtained by such Lender through the
exercise of a right of set-off, banker's lien, counterclaim or otherwise)
shall be rescinded or must otherwise be restored, each Lender which shall
have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit to each
Lender whose payment shall have been rescinded or otherwise restored. The
Borrower agrees that any Lender so purchasing such a participation may, to
the fullest extent permitted by law, exercise all rights of payment,
including set-off, banker's lien or counterclaim, with respect to such
participation as fully as if such Lender were a holder of such Loan or
other obligation in the amount of such participation.
SECTION 3
CONDITIONS PRECEDENT
3.01. Disbursement of Loan. The obligation of the Lenders to
disburse the principal amount of the Loans is subject to the satisfaction
(or waiver by the Lenders, provided, that the Lenders shall not waive the
condition set forth in Section 3.01(k) without the consent of the Borrower
which consent shall not be unreasonably withheld by the Borrower) on or
prior to the Closing Date of the following conditions (in form and
substance acceptable to the Lenders) and the Borrower agrees to use its
best efforts to the extent possible to satisfy such conditions as promptly
as practicable after the date hereof:
(a) Executed Loan Documents. Each of the Loan Documents shall
have been duly executed and delivered by the parties thereto and the
Lenders shall have received executed copies of each of the Loan Documents,
including the Assignment of Mortgage in recordable form.
(b) Procedures Regarding Collateral. Completion to the
satisfaction of the Lenders of all steps necessary to create in favor of
the Collateral Agent a valid, binding and
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perfected first priority pledge of the Mortgage Note and assignment of the
Mortgage, including recordation of the Assignment of Mortgage.
(c) No Default; Representations and Warranties. Receipt by
the Agent of a certificate signed by the President of the Borrower to the
effect that both at the time of the making of the Loans and after giving
effect thereto (i) there shall exist no Default or Event of Default, and
(ii) all representations and warranties contained herein and in the other
Loan Documents then in effect shall be true and correct in all material
respects.
(d) Opinion of Counsel. Receipt by the Agent of a legal
opinion, or opinions, in form and substance reasonably satisfactory to the
Agent and dated as of the Closing Date, from legal counsel to the Borrower
as to legal matters referred to in Section 4.
(e) Corporate Documents. Receipt by the Agent of all
documents reasonably requested by the Agent relating to the existence of
the Borrower, the validity of the Loan Documents and other matters relating
thereto, in form and substance satisfactory to the Agent, including, but
not limited to:
(i) Certificates of Authorization and Incumbency.
Certificate of the Secretary of the Borrower, dated as of the Closing
Date, as to resolutions approving and adopting the Loan Documents and
authorizing the execution and delivery thereof and as to the
authority of the persons executing such documents.
(ii) Certificates of Incorporation and By-laws. Copies
of the Certificate of Incorporation and By-laws of the Borrower,
together with all amendments thereto certified as of the Closing
Date.
(iii) Certificates of Good Standing or Existence.
Certificates of good standing or existence for the Borrower issued as
of a recent date by its state of organization and each other state
where the Borrower, by the nature of its business, is required to
qualify or register.
(f) Related Transactions. Closing of the transactions
relating to the issuance of the 14% Debentures, the Stock Appreciation
Rights and the Warrants and review and approval by the Agent of the
documents relating thereto.
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(g) Fee and Expenses. Payment to the Agent of a fee as set
forth in Schedule 3.01 and all expenses of the Agent in connection herewith
shall be made on the Closing Date. Such fee and expenses shall be paid out
of the proceeds of the Loans.
(h) Other Documents. Receipt by the Agent of such other
certificates and documents as it may reasonably request.
(i) Loan Agreement Default. No Event of Default under the
1985 Loan Agreement, no event of the nature described in Section 5.01(a) of
the Mortgage which with the giving of notice or lapse of time or both would
constitute such an Event of Default, and no event of the nature described
in Sections 5.01(f) and (g) of the New Mortgage (as defined in the 1985
Loan Agreement) or Sections 5.01(e) and (f) of the Consolidated Mortgage
(as defined in the 1985 Loan Agreement) shall have occurred and be
continuing.
(j) Market Conditions. There shall be no (i) suspension or
material limitation in trading in securities generally on the New York
Stock Exchange (the "NYSE"); (ii) suspension or material limitation in
trading in the Company's securities on the NYSE; (iii) general moratorium
on commercial banking activities in New York declared by either Federal or
New York State authorities; or (iv) since November 21, 1994, outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Agent makes it
impracticable or inadvisable to proceed with the transactions contemplated
hereunder on the terms and in the manner contemplated herein.
(k) Consent to Assignment. The Borrower shall have obtained
the unconditional consent of RCP and RCPA to the assignment to the
Collateral Agent of the Mortgage and the Mortgage Note and such consent
shall be in full force and effect.
(l) Business Combination. Except with respect to the issuance
of the Warrants and the Stock Appreciation Rights, the Borrower shall not
have entered into any arrangement or agreement in respect of a "business
combination" as defined in the Certificate of Incorporation of the Borrower
(but disregarding any reference to an "Acquiring Person" in such
definition).
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3.02. Obligation of Borrower to Close. The obligation of the
Borrower to close the loan transaction contemplated hereby is subject to
Whitehall not being in default of its obligation to close the purchase of
the 14% Debentures.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower hereby represents and warrants to the Lenders that
on the date hereof and on the Closing Date (before and after giving effect
to the making of the Loans):
4.01. Existence, Power and Ownership.
(a) It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and is in good
standing as a foreign corporation in each other jurisdiction where
ownership of its properties or the conduct of its business requires it to
be so, and it has all power and authority under such laws and its
certificate of incorporation and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted.
(b) It is subject to taxation as a real estate investment
trust (a "REIT") under Subchapter M of the Code and has satisfied all
requirements to continue to qualify as a REIT. It is not aware of any fact
or circumstance that could reasonably be expected to prevent it from
continuing to so qualify in the future.
4.02. Authorization. It has the corporate power and authority
to enter into this Loan Agreement and the other Loan Documents and to
perform its obligations under and consummate the transactions contemplated
by such Loan Documents and has by proper action duly authorized the
execution and delivery of the Loan Documents.
4.03. No Violations or Conflicts. Neither the execution and
delivery of the Loan Documents, nor the consummation of the transactions
contemplated therein, nor performance of and compliance with the terms and
provisions thereof will (i) violate or conflict with any provision of its
certificate of Incorporation or By-laws, (ii) violate any law, regulation
(including without limitation Regulation G, T, U or X), order, writ,
judgment, injunction, decree or permit applicable to it, (iii) violate or
materially
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conflict with any contractual provisions of, or cause an event of default
under, any indenture, loan agreement, mortgage, deed of trust, contract or
other agreement or instrument to which it is a party or by which it or any
of its properties may be bound, or (iv) result in or require the creation
of any lien, security interest or other charge or encumbrance (other than
those contemplated in or in connection with the Loan Documents) upon or
with respect to its properties.
4.04. Consents. No consent, approval, authorization or order
of, or filing, registration or qualification with, any court or
governmental authority or other Person is required in connection with the
execution, delivery or performance of this Loan Agreement or any of the
other Loan Documents, except for the consent of RCP and RCPA to the
assignment to the Collateral Agent of the Mortgage and the Mortgage Note
and except for any Hart-Scott-Rodino Act filings in connection with the
exercise of the Warrants.
4.05. Enforceable Obligations. This Loan Agreement and the
other Loan Documents have been duly executed and delivered by the Borrower
and constitute legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms.
4.06. Financial Condition; Securities and Exchange Commission
Filings. (a) Since January 1, 1992, the Borrower has made all required
filings with the Securities and Exchange Commission, and such filings are
complete and correct in all material respects and do not contain any untrue
statement of a material fact or omit any material fact required to be
stated therein necessary to make the statements therein not misleading.
The financial statements of the Borrower contained in such filings are true
and correct and fairly present the financial condition and results of
operations of the Borrower as of their dates and for the respective periods
covered thereby; such financial statements were prepared in accordance with
generally accepted accounting principles applied on a consistent basis
(except as noted therein); and since the date of such financial statements,
except as disclosed in such filings with the Securities and Exchange
Commission made on or prior to the date hereof, there have occurred no
changes or circumstances which have had or are likely to have a material
adverse effect on the Borrower and the financial statements referenced
above.
(b) The Borrower has delivered to the Agent true and correct
copies of correspondence between the Borrower
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and the Securities and Exchange Commission relating to the Borrower's
filing on Form 10-K for the year ended December 31, 1993.
4.07. No Default. No Default or Event of Default presently
exists.
4.08. Liens. Except for Permitted Liens, it has good and
marketable title to all of its properties and assets free and clear of all
Liens.
4.09. Indebtedness. It has no Indebtedness (including,
without limitation, any Guaranty Obligations) except for the Loan, the 14%
Debentures and the other Indebtedness specified on Schedule 4.09 hereto.
4.10. Litigation. Except as specified in Schedule 4.10
hereto, there are no actions, suits or legal, equitable, arbitration or
administrative proceedings (including those relating to environmental
matters), pending or, to the knowledge of the Borrower threatened, against
the Borrower which, if adversely determined, would have a material adverse
effect on the financial condition of the Borrower. The Borrower is not
aware of any fact or condition in respect of the Real Estate that could
reasonably be expected to result in any such action, suit, or proceeding or
in the incurrence of any material liability in respect of environmental
matters.
4.11. Material Agreements. Except as specified on
Schedule 4.11 hereto and except agreements filed as exhibits to its filings
with the Securities and Exchange Commission prior to the date hereof, it is
not a party to any material contract, lease, loan agreement, indenture,
mortgage, security agreement or other material agreement or obligation
other than (i) the Loan Documents, (ii) the documents evidencing the
Indebtedness described in Section 4.09, and (iii) the Mortgage, Mortgage
Note, 1985 Loan Agreements and any agreement or obligation relating to the
mortgage loan evidenced by the foregoing. Except as specified in Schedule
4.11 hereto and except as disclosed in its filings with the Securities and
Exchange Commission prior to the date hereof, it is not engaged in any
negotiations with, and has no plans or intention to enter into any other
agreements, or modifications of agreements, with RCP or RCPA.
4.12. Taxes. It has filed, or caused to be filed, all
material reports and returns with respect to taxes (federal, state, local
and foreign) required to be
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filed and such reports and returns were true, complete and accurate in all
material respects and it has paid all amounts of taxes shown thereon to be
due (including interest and penalties) and has paid all other material
taxes, fees, assessments and other governmental charges (including
documentary stamp taxes and intangible taxes) owing (or necessary to
preserve any Liens in favor of the Collateral Agent), by it, except for
such taxes (i) which are not yet delinquent or (ii) as are being contested
in good faith and by proper proceedings, and against which adequate
reserves are being maintained in accordance with generally accepted
accounting principles, but only so long as there is no material liability
or any risk of material loss, sale or forfeiture of any collateral pledged
to the Collateral Agent. It is not aware of any proposed material tax
assessments against it. No extension of time for assessment or payment by
the Borrower of any federal, state or local tax is in effect. All mortgage
recording taxes in respect of the Mortgage have been paid.
4.13. Compliance with Law. It is in compliance with all laws,
rules, regulations, orders and decrees applicable to it or to its
properties.
4.14. ERISA. Except for the Retirement Income Plan for
Salaried Employees of Rockefeller Group, Inc., as amended or supplemented
in the ordinary course of business from time to time (the "RGI Plan"),
neither it nor its ERISA Affiliates have established, maintained or been
obligated to contribute to any Plan at any time during the five calendar
years preceding the Closing Date.
4.15. Subsidiaries. It has no Subsidiaries other than
Deucalion Capital Corporation, a Delaware corporation.
4.16. Use of Proceeds; Margin Stock. It will use the proceeds
of the Loans hereunder on the Closing Date solely to retire its outstanding
commercial paper, to pay fees and expenses in connection with this Loan
Agreement and to satisfy the interest rate swap agreements specified in
paragraph B. of Schedule 4.09; provided, that, if any such commercial paper
may not be prepaid on the Closing Date, the Borrower will place sufficient
funds for prepayment in full thereof in escrow with the applicable paying
agent. None of such proceeds will be used for the purpose of purchasing or
carrying any "margin stock" as defined in Regulation G, T, U, or X or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry "margin stock" or for any other purpose which
might constitute this transaction a "purpose credit" within the
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meaning of Regulation G, T, U or X. As of the Closing Date the Borrower
does not own any "margin stock".
4.17. Government Regulation. It is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power
Act, or the Interstate Commerce Act, each as amended. In addition, it is
not (i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not controlled
by such a company, or (ii) a "holding company," or a "Subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"Subsidiary" or a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
4.18. Pari Passu Obligations. The obligations of the Borrower
hereunder and under the Notes and under the Debenture Purchase Agreement
and the 14% Debentures rank and will at all times rank pari passu with all
other obligations of the Borrower in respect of its unsubordinated
indebtedness for borrowed money, and there is no indebtedness for borrowed
money of the Borrower senior to the Notes or the 14% Debentures.
4.19. Ownership of Real Estate. The Borrower has good and
marketable title to the Mortgage Note, the Mortgage, the Letters of Credit
(as specified on Schedule II to the Collateral Trust Agreement (the
"Letters of Credit")) and the Title Insurance (as defined in the Collateral
Trust Agreement), free and clear of all liens, except (i) the liens to be
granted pursuant to the Loan Documents and (ii) the restrictions on
transfer contained in the 1985 Loan Agreement, the Letters of Credit and
the Title Insurance. The Borrower has not granted to any other person any
rights, recorded or unrecorded, in the Mortgage or the Mortgage Note. To
the best of the Borrower's knowledge, no person, other than the Borrower,
has any right or option, recorded or unrecorded, to acquire the Real Estate
or any portion thereof or interest therein. The Mortgage remains a valid
lien on all the Real Estate and on the Lessor's interest in all Leases (as
defined in the Mortgage), with a priority in all material respects no less
than its priority as of September 19, 1985 except as such priority may be
affected by the subordination referred to in Clause (ii) of Recital G to
the Amendment and Restatement of the Mortgage dated as of December 1, 1988.
The outstanding aggregate principal amount of the Mortgage Note is
$1,300,000,000, and no default exists thereunder.
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4.20. No Pending Condemnation or Eminent Domain. The Borrower
has no knowledge of any pending or threatened condemnation or eminent
domain proceedings which would affect the Real Estate.
4.21. Capitalization. As of the date hereof, the Borrower's
authorized capital stock consists of 150,000,000 shares of Common Stock and
38,260,704 shares of Common Stock were issued and outstanding, no shares of
Common Stock were held in treasury, and there were no outstanding employee
stock options. The Common Stock constitutes all of the issued and
outstanding capital stock of the Borrower. There are no other classes of
capital stock of the Borrower authorized or outstanding. The outstanding
Common Stock is duly authorized, validly issued, fully paid and non-
assessable. Except for the transactions contemplated by the Loan Documents
and except in respect of the Indenture Securities, there are no preemptive
or other outstanding rights, options, warrants, conversion rights or
agreements or commitments of any character relating to the Borrower's
authorized and issued, unissued or treasury shares of capital stock, and
the Borrower has not issued any debt securities, other securities, rights
or obligations that are currently outstanding and are convertible into or
exchangeable for, or giving any Person a right to subscribe for or acquire,
capital stock of the Borrower.
SECTION 5
AFFIRMATIVE COVENANTS OF THE BORROWER
The Borrower hereby covenants and agrees that so long as this
Loan Agreement is in effect and until the Loans, together with interest,
fees and other obligations hereunder, have been paid in full:
5.01. Information Covenants. The Borrower will furnish, or
cause to be furnished, to the Lenders:
(a) Annual Financial Statements. As soon as available and in
any event within 90 days after the close of each fiscal year of the
Borrower, a balance sheet of the Borrower as at the end of such fiscal year
together with related statements of income and retained earnings and of
cash flows for such fiscal year, all in reasonable detail and examined by
independent certified public accountants of recognized national standing
whose opinion shall be to the effect that such financial statements have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except for changes with which
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such accountants concur) and shall not be qualified as to the scope of the
audit, all of the foregoing to be in reasonable detail and in form and
substance satisfactory to the Agent.
(b) Auditor's Certificate. At the time of delivery of the
financial statements provided for in Section 5.01(a) hereof, a certificate
from the accountants examining such financial statements, that, to the best
of their knowledge, no Event of Default exists, or, if any Event of Default
does exist, providing a reasonably detailed summary of all relevant
information known to such accountants.
(c) Quarterly Financial Statements. As soon as available and
in any event within 45 days after the end of each fiscal quarter of each
fiscal year of the Borrower, (i) except for the fourth fiscal quarter of
each fiscal year, a balance sheet of the Borrower as at the end of such
quarterly period together with related statements of income and retained
earnings for such quarterly period and for the portion of the fiscal year
ending with such period, all in reasonable detail and in form and substance
satisfactory to the Agent, and accompanied by a certificate of the
President of the Borrower as being true and correct and as having been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis, subject to changes resulting from audit and
normal year-end audit adjustments, (ii) a report showing the calculation of
Net Cash Flow for such fiscal quarter and (iii) estimates made in good
faith by the Borrower of the items specified in (ii) above relating to the
next fiscal quarter. For so long as the Borrower is required to file
reports pursuant to the Securities Exchange Act of 1934, the Borrower may
satisfy its obligations under Section 5.01(a) and 5.01(c)(i) hereof by
delivering to the Agent, within the time periods specified in such
Sections, copies of its reports on Form 10-K and Form 10-Q, respectively,
with the Securities and Exchange Commission.
(d) Officer's Certificate. At the time of delivery of the
financial statements provided for in Section 5.01(c) hereof, a certificate
of the President of the Borrower substantially in the form of Exhibit B to
the effect that no Default or Event of Default exists, or, if any Default
or Event of Default does exist, specifying the nature and extent thereof
and what action the Borrower proposes to take with respect thereto.
(e) Auditor's Reports. Promptly upon receipt thereof, a copy
of any other report or management letter
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submitted by independent accountants to the Borrower in connection with any
annual, interim or special audit of the books of Borrower.
(f) Real Estate and Other Information. Promptly upon receipt
thereof, copies of all financial information, reports and other documents
received by the Borrower pursuant to the 1985 Loan Agreement and the
Mortgage, including without limitation, all documents delivered to Borrower
pursuant to Sections 6.05 and 6.08 of the 1985 Loan Agreement and Sections
704 and 1010 of the Mortgage .
(g) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties or
financial condition of the Borrower as the Agent may reasonably request,
including without limitation copies or summaries of, as the case may be,
all non-routine correspondence to or from and summaries of contacts and
conversations with RCP, RCPA or any of their affiliates, subject to
compliance with any applicable confidentiality restrictions agreed to by
the Borrower in good faith.
(h) Notice of Default or Litigation. Upon the Borrower
obtaining knowledge thereof, it will give written notice to the Agent
promptly, but in any event within five Business Days, of the occurrence of
any of the following with respect to the Borrower: (i) the occurrence of
an event or condition consisting of a Default, specifying the nature and
existence thereof and what action the Borrower proposes to take with
respect thereto, (ii) the pendency or commencement of any litigation,
arbitral or governmental proceeding against the Borrower in which damages
are sought or environmental remediation demanded which exceeds $1,000,000
in any instance or $5,000,000 in the aggregate or which might otherwise
materially adversely affect the business, properties, assets, condition
(financial or otherwise) or prospects of the Borrower, (iii) any levy of an
attachment, execution or other process against its assets in excess of
$1,000,000, (iv) the occurrence of an event or condition which shall
constitute a default or event of default under any other agreement for
borrowed money in excess of $1,000,000, (v) any development in its business
or affairs which has resulted in, or which the Borrower reasonably believes
may result in, a material adverse effect on the business, properties,
assets, condition (financial or otherwise) or prospects of the Borrower,
(vi) the institution of any proceedings against, or the receipt of notice
of potential liability or responsibility for any violation, or alleged
violation of, any federal, state or local law, rule
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or regulation, the violation of which could give rise to a material
liability, or have a material adverse effect on the business, assets,
properties condition (financial or otherwise) or prospects of the Borrower,
or (vii) the occurrence of an event or condition which may render the
Borrower unable to qualify as a REIT under the Code.
(i) Changes to Indebtedness. Within 30 days prior thereto,
notice of any proposed extension, renewal, refinancing or modification of
Indebtedness made pursuant to Section 6.01(iv) or Section 6.15.
5.02. Preservation of Existence and Franchises. The Borrower
will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights, franchises and authority and
will at all times take all reasonable steps necessary to qualify to be
taxed as a REIT as long as a REIT is accorded substantially the same
treatment under the United States income tax laws from time to time in
effect as under Sections 856-860 of the Code, in effect at the date of this
Loan Agreement, as originally executed.
5.03. Books, Records and Inspections. The Borrower will keep
complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of generally accepted
accounting principles applied on a consistent basis (including the
establishment and maintenance of appropriate reserves). The Borrower will
permit, on reasonable notice, officers or designated representatives of the
Lender to visit and inspect its books of account and records and any of its
properties or assets and to discuss the affairs, finances and accounts of
the Borrower with, and be advised as to the same by, its officers,
directors and independent accountants.
5.04. Compliance with Law. The Borrower will comply in all
material respects with all applicable laws, rules, regulations and orders
of, and all applicable restrictions imposed by, all applicable governmental
bodies, foreign or domestic, or authorities and agencies thereof (including
quasi-governmental authorities and agencies), in respect of the conduct of
its business and the ownership of its property.
5.05. Insurance. Except as specified in Schedule 5.05, the
Borrower will at all times maintain in full force and effect insurance
(including worker's compensation insurance, liability insurance, casualty
insurance and business
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interruption insurance) in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are
in accordance with normal industry practice.
5.06. Maintenance of Property. The Borrower will maintain and
preserve its properties and assets in good repair, working order and
condition, normal wear and tear excepted, and will make, or cause to be
made, in such properties and assets from time to time all repairs,
renewals, replacements, extensions, additions, betterments and improvements
thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
5.07. Plan Assets. The Borrower will use its best efforts to
not take any action that would cause it to be deemed to hold Plan Assets at
any time.
5.08. Intercreditor Agreement. The Borrower will comply with
the terms of the Intercreditor Agreement in respect of payments to be made
in respect of the Notes and the 14% Debentures notwithstanding that such
terms may alter the provisions set forth herein, in the Notes, in the
Debenture Purchase Agreement or in the 14% Debentures.
5.09. Resale of Loan. The Borrower, upon the request of the
Required Lenders from time to time, will exchange the Notes for any other
evidences of indebtedness or debt securities, whether floating rate notes,
debentures or otherwise (the "New Debt"), and shall enter into any such
agreements, whether in the form of an amendment hereto, an indenture, a
note purchase agreement or otherwise (the "New Documents"), as shall be
deemed necessary or desirable by the Lenders in connection with the resale
of the Loans, whether as a private placement, a registered public offering
or otherwise, provided only that the aggregate principal amount of the New
Debt shall be equal to the unpaid principal amount of the Loans at the time
of exchange and the business terms (including aggregate interest) of the
New Documents shall be substantially the same as the business terms
(including affirmative and negative covenants) contained herein.
Notwithstanding the foregoing, it is understood by the parties that (a) the
definition of the terms "LIBO Rate" and "Interest Period" may be revised to
provide for one-month Interest Periods and a corresponding adjustment of
the 4% margin if the definition of the term "Interest Period" (but not the
definition of "LIBO Rate") should change, (b) the New Debt shall be in such
denominations and tranches and have such other features (including,
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without limitation, intercreditor and/or priority arrangements) as may be
deemed appropriate by the Lenders, (c) the New Documents will contain
additional terms and provisions governing the voting rights of the holders
of the New Debt including the requirement of unanimous approval of the
holders of New Debt for waivers or amendments in respect of Section 6.12
and any release of security for the New Debt, in each case, to the extent
desired by the Lenders, any provision relating to payment of interest,
repayment of principal or payment of any fees or indemnities and any other
provisions customarily so treated, (d) the New Documents will contain such
additional terms and provisions as are customarily contained in such
documents governing the issuance of debt including provisions governing the
rights of indenture trustees and/or administrative agents and bank set-off
and sharing provisions, as applicable, (e) the New Documents will contain
such other additional terms and provisions as are reasonably requested by
the Lenders in order to effectuate the resale of the Loans and such other
additions hereto or variations herefrom as are requested by any rating
agency rating the New Debt, including, without limitation, requiring
accrual of payments that are due in escrow or trust accounts, except to the
extent otherwise prohibited by the 1985 Indenture and except that no such
escrow shall be required in respect of regularly scheduled payments on
account of the Loans and (f) the New Documents will be in such form and
will contain such terms and provisions as are necessary to comply with all
applicable securities laws, including, in the case of an indenture, the
Trust Indenture Act of 1939, as amended. In furtherance of the foregoing,
the Borrower will provide the Lenders with all such documents and
information, financial or otherwise, assist in all such due diligence and
do such other things and enter into such other agreements as are necessary
or, in the judgment of the Lenders, desirable to resell the Loans and carry
out the intent of this Section 5.09. The term "Lender" as used in this
Loan Agreement shall include any trustee for an indenture pursuant to which
the New Debt is issued.
SECTION 6
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this
Loan Agreement is in effect and until the Loans, together with all
interest, fees and other obligations hereunder, have been paid in full:
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6.01. Indebtedness. The Borrower will not contract, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness arising under this Loan Agreement and the
other Loan Documents;
(ii) Current liabilities for taxes and assessments incurred
or arising in the ordinary course of business;
(iii) Indebtedness in respect of current accounts payable or
accrued (other than for borrowed money or purchase money obligations)
and incurred in the ordinary course of business; provided, that all
such liabilities, accounts and claims shall be paid when due (or in
conformity with customary trade terms);
(iv) Indebtedness in effect on the date hereof (as
specified in Schedule 4.09) and any extensions, renewals or
refinancings thereof in an amount not to exceed the outstanding
accreted amount thereof on the date of refinancing; provided that no
such Indebtedness may be renewed, extended or refinanced if, as a
result thereof, quarterly debt service of the Borrower would be
materially increased or Net Cash Flow of the Borrower would be
materially decreased;
(v) Unsecured Indebtedness in an aggregate amount not to
exceed $10,000,000 at any time outstanding incurred by the Borrower
to cover working capital needs; and
(vi) 14% Debentures issued in connection with the
conversion of Stock Appreciation Rights.
6.02. Liens. Except with respect to Permitted Liens, the
Borrower will not (i) contract, create, incur, assume or permit to exist
any Lien with respect to any of its property or assets of any kind (whether
real or personal, tangible or intangible), whether now owned or hereafter
acquired, (ii) sell any of its property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to it) or (iii) assign any right to receive income.
6.03. Nature of Business. The Borrower (i) will not alter the
character or conduct of its business from that conducted as of the Closing
Date which is and shall be limited to the ownership and management of the
Mortgage, the
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Mortgage Note and the partnership interests in any partnership which owns
the Real Estate and (ii) will not permit its Subsidiary to engage in any
business activity whatsoever or to own any assets or incur any liabilities.
6.04. Consolidation, Merger, Sale or Purchase of Assets. The
Borrower will not dissolve, liquidate, or wind up its affairs, and will not
enter into any transaction of merger or consolidation, or sell or otherwise
dispose of all or any part of its property or assets or, other than in the
ordinary course of its business, purchase, lease or otherwise acquire (in a
single transaction or a series of related transactions) all or any part of
the property or assets of any Person, except that the Borrower may merge or
be consolidated with any other U.S. corporation so long as (i) the Borrower
shall be the surviving corporation, (ii) after giving effect to any such
transaction, no Default or Event of Default shall exist, including, without
limitation, any Default in respect of Section 6.03 and (iii) the surviving
corporation shall have a number of authorized, issued and outstanding
shares of capital stock no greater than that of the Borrower immediately
prior to such transaction.
6.05. Advances, Investments and Loans. The Borrower will not
lend money or make advances to any Person, or purchase or acquire any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any Person except for Permitted Investments.
6.06. Transactions with Affiliates. The Borrower will not
enter into any transaction or series of transactions with any stockholder,
employee or Affiliate other than on terms and conditions substantially as
favorable to the Borrower as would be obtainable by it in a comparable
arm's-length transaction with a Person other than a stockholder, employee
or Affiliate, except for employment contracts and other employee benefit
plans and arrangements entered into in the ordinary course of business and
approved by the compensation committee of the Board of Directors of the
Borrower, and compensation arrangements with directors approved by the
Board of Directors of the Borrower.
6.07. Operating Lease Obligations. The Borrower will not
enter into, assume or permit to exist any obligations for the payment of
rent for any property (real, personal or mixed, tangible or intangible)
under leases, subleases or similar arrangements as lessee, except for the
Borrower's leases for office space on reasonable terms.
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6.08. Sale and Leaseback. The Borrower will not enter into
any arrangement pursuant to which it will lease back, as lessee, any
property (real, personal or mixed, tangible or intangible) previously owned
by it and sold or otherwise transferred or disposed of, directly or
indirectly, to the owner-lessor of such property.
6.09. Governing Documents. The Borrower will not propose or
initiate any action in respect of any amendment, modification, supplement,
waiver or termination of any provisions of its Certificate of Incorporation
or By-Laws, except for an amendment to its Certificate of Incorporation to
eliminate or modify the "Limit" provided for in Article Ninth (A) thereof.
6.10. ERISA. Except for the RGI Plan, the Borrower will not
establish any Plan or take any action that would cause it to become
obligated under any Plan.
6.11. Dividends. The Borrower will not declare or pay any
dividend on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, Common Stock, (i) subject to clauses
(ii) and (iii) below, in an amount in excess of $.80 per share per annum,
adjusted to reflect any stock splits, stock dividends or similar
transactions, unless and to the extent required to meet qualification rules
for a REIT requiring distributions of 95% (or such other percentage as may
be required by a change in the Code applicable to REITs) (such required
distributions are referred to herein as "REIT Distributions"), (ii) at any
time when a payment default exists under the Mortgage, the Mortgage Note or
the 1985 Loan Agreement except for REIT Distributions and (iii) if the
Borrower shall not qualify to be taxed as a REIT under the Code. The
Borrower will not make any payment on account of a Warrant or Stock
Appreciation Right in an amount per share in excess of the positive
difference between (x) any amounts per share paid to holders of Common
Stock pursuant to the preceding sentence and (y) $.60 per annum, adjusted
to reflect any stock splits, stock dividends or similar transactions;
provided, that this Section 6.11 shall not operate to prevent the exercise
of Warrants or conversion of Stock Appreciation Rights in accordance with
their respective terms or any payment on 14% Debentures issued on
conversion of Stock Appreciation Rights.
6.12. Modifications to Mortgage. The Borrower will not amend
or in any way waive or modify any payment provision of the Mortgage or the
Mortgage Note and will not
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amend Article X of the 1985 Loan Agreement or the Purchase Option.
6.13. Mortgage Conversion. The Borrower will not exercise the
rights granted to it in the Purchase Option and Article X of the 1985 Loan
Agreement.
6.14. Coverage Test. Net Cash Flow of the Borrower for each
twelve-month period ending December 31, determined as of December 1 in each
such period (but giving effect to payments due and revenues anticipated
through December 31), shall not be less than 125% of the Fixed Amortization
Amount for such period.
6.15. Modification or Prepayment of Indebtedness. The
Borrower will not modify any Indebtedness if (i) quarterly debt service of
the Borrower would be materially increased or Net Cash Flow of the Borrower
would be materially decreased as a result thereof or (ii) the business,
properties, assets, condition (financial or otherwise) or prospects of the
Borrower might otherwise be materially adversely affected. The Borrower
will not prepay or acquire any of its Indebtedness (other than as required
by the terms thereof as in effect on the date hereof or permitted hereunder
in respect of the Loans or under the Debenture Purchase Agreement in
respect of the 14% Debentures and except for the Indebtedness permitted
under Section 6.01(v)) and will cause to remain outstanding in full force
and effect until their respective termination dates the interest rate swap
agreements specified in paragraph A of Schedule 4.09.
SECTION 7
EVENTS OF DEFAULT
7.01. Events of Default. An Event of Default shall exist upon
the occurrence of any of the following specified events (each an "Event of
Default"):
(a) Payment. The Borrower shall (i) default in the payment
when due of any principal owing hereunder or under the Notes
(including any mandatory prepayment required hereunder or any
voluntary prepayment after giving notice thereof in accordance with
Section 2.05), or (ii) default in the payment when due of any inter-
est, fees or other amounts owing hereunder, under the Notes, the
Collateral Trust Agreement, the Security Documents or the Letter
Agreement or in connection herewith and such default referred to in
this subpara-
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graph (ii) shall continue unremedied for at least ten days; or
(b) Representations. Any representation, warranty or
statement made on the date hereof or deemed to be made as of the
Closing Date by the Borrower herein or in any of the Security
Documents, the Collateral Trust Agreement or the Letter Agreement or
in any statement or certificate delivered or required to be delivered
pursuant hereto or thereto shall prove untrue in any material respect
on the date as of which it was made or deemed to have been made; or
(c) Covenants. The Borrower shall (i) default in the due
performance or observance of any term, covenant or agreement
contained in Section 5.01(h)(i) or in Section 6 (other than
Sections 6.06, 6.07 and 6.10), or (ii) default in the due performance
or observance by it of any term, covenant or agreement (other than
those referred to in subsection (a), (b) or (c) (i) of this Section
7.01) contained in this Loan Agreement and such default referred to
in this subparagraph (ii) shall continue unremedied for a period of
at least 30 days after notice from the Agent of such default; or
(d) Other Agreements. The Borrower shall default in the due
performance or observance of any term, covenant or agreement in any
of the Security Documents, the Collateral Trust Agreement or the
Letter Agreement (subject to applicable grace or cure periods, if
any) applicable to it, or the Security Documents, the Collateral
Trust Agreement or the Letter Agreement shall fail to be in full
force and effect or to give the Collateral Agent, the Agent and the
Lenders the Liens, rights, powers and privileges purported to be
created thereby (except insofar as such failure is due to the act of
the Collateral Agent, the Agent or any Lender); or
(e) Bankruptcy, etc. (i) The Borrower shall commence a
voluntary case concerning itself under the Bankruptcy Code in Title
11 of the United States Code (as amended, modified, succeeded or
replaced, from time to time, the "Bankruptcy Code"); or (ii) an
involuntary case is commenced against the Borrower under the Bank-
ruptcy Code and the petition is not dismissed within 90 days after
commencement of the case; or (iii) a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of all or
substantially all of the property of the Borrower; or (iv) the
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Borrower commences any other proceeding under any reorganization,
arrangement, adjustment of the debt, relief of creditors, dissolution,
insolvency or similar law of any jurisdiction whether now or hereafter in
effect relating to the Borrower; or (v) there is commenced against the
Borrower any such proceeding which remains undismissed for a period of 90
days after commencement of such proceeding; or (vi) the Borrower is
adjudicated insolvent or bankrupt; or (vii) any order of relief or other
order approving any such case or proceeding is entered; or (viii) the
Borrower suffers appointment of any custodian or the like for it or for
any substantial part of its property and such appointment continues
unchanged or unstayed for a period of 90 days after commencement of
such appointment; or (ix) the Borrower makes a general assignment for the
benefit of creditors; or (x) any corporate action is taken by the Borrower
for the purpose of effecting any of the foregoing; or
(f) Defaults under Other Agreements. (i) The Borrower shall
(x) default in any payment in an amount of $1,000,000 or more (beyond
the applicable grace period with respect thereto, if any) with
respect to any other Indebtedness, or (y) default in the observance
or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event or condition shall
occur or condition exist, the effect of which default, in the case of
(y), or other event or condition is to cause, or permit, the holder
or holders of such Indebtedness (or trustee or agent on behalf of
such holders) to cause (determined without regard to whether any
notice or lapse of time is required), any such Indebtedness, in an
amount of $1,000,000 or more, to become due prior to stated maturity,
or (ii) any such Indebtedness of the Borrower, in an amount of
$1,000,000 or more, shall be declared due and payable, or required to
be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof.
(g) Judgments. One or more final judgments or decrees shall
be entered against the Borrower involving a liability of $1,000,000
or more in any instance, or $5,000,000 or more in the aggregate for
all such judgments and decrees collectively (not paid or fully
covered by insurance provided by a carrier who has acknowledged
coverage) and any such judgments or
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decrees shall not have been vacated, discharged, paid or stayed or bonded
pending appeal within the time permitted to appeal therefrom.
7.02 Remedies. Upon the occurrence of an Event of Default,
the Agent shall, upon the request and direction of the Required Lenders, by
written notice to the Borrower, take any of the following actions without
prejudice to its rights to enforce its claims against the Borrower, except
as otherwise specifically provided for herein:
(i) Acceleration of Loan. Declare the unpaid principal of
and any accrued interest in respect of the Loans and the Notes to be
due whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower; and
(ii) Enforcement of Rights. Enforce any and all Liens and
security interests in favor of the Agent and the Lenders in respect
of the Notes and the Loans and any other amounts due, including,
without limitation, all rights and interests created and existing
under any of the Security Documents, the Collateral Trust Agreement
and the Letter Agreement and all rights of set-off;
provided, however, that, notwithstanding the foregoing, if an Event of
Default specified in Section 7.01(e) shall occur, then the Notes and the
Loans shall immediately become due and payable without the giving of any
notice or other action by the Agent or any Lender.
SECTION 8
THE AGENT AND THE LENDERS
8.01. The Agency. Each Lender appoints Goldman Sachs Mortgage
Company as its Agent hereunder and irrevocably authorizes the Agent to take
such action on its behalf and to exercise such powers hereunder and
thereunder as are specifically delegated to the Agent by the terms hereof
and thereof, together with such powers as are reasonably incidental hereto
and thereto, including the execution and delivery by the Agent on behalf of
such Lender of the Collateral Trust Agreement and any documents related
thereto and the exercise by the Agent of powers delegated to the Agent and
the Lenders thereby, and the Agent hereby accepts such appointment subject
to the terms hereof. The relationship between the Agent and the Lenders
shall be that
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of agent and principal only and nothing herein or therein shall be
construed to constitute the Agent a trustee for any Lender nor to impose on
the Agent duties or obligations other than those expressly provided for
herein.
8.02. The Agent's Duties. The Agent shall promptly forward to
each Lender copies, or notify each Lender as to the contents, of all
notices and other communications received from the Borrower pursuant to the
terms of this Loan Agreement, the Assignment of Mortgage, the Collateral
Trust Agreement and the Letter Agreement and, in the event that the
Borrower fails to pay when due the principal of or interest on any Loan,
the Agent shall promptly give notice thereof to the Lenders. As to any
other matter not expressly provided for herein or therein, the Agent shall
have no duty to act or refrain from acting with respect to the Borrower,
except upon the instructions of the Required Lenders. The Agent shall not
be bound by any waiver, amendment, supplement, or modification of this Loan
Agreement or the other Loan Documents which affects its duties hereunder
and thereunder, unless it shall have given its prior written consent
thereto. The Agent shall have no duty to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements binding on the Borrower pursuant to this Loan Agreement, the
Assignment of Mortgage, the Collateral Trust Agreement or the Letter
Agreement nor shall it be deemed to have knowledge of the occurrence of any
Default or Event of Default (other than a failure of the Borrower to pay
when due the principal or interest on any Loan), unless it shall have
received written notice from the Borrower or a Lender specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default".
8.03. The Agent's Liabilities. Each of the Lenders and the
Borrower agrees that (i) neither the Agent in such capacity nor any of its
officers or employees shall be liable for any action taken or omitted to be
taken by any of them hereunder except for its or their own gross negligence
or wilful misconduct, (ii) neither the Agent in such capacity nor any of
its officers or employees shall be liable for any action taken or omitted
to be taken by any of them in good faith in reliance upon the advise of
counsel, independent public accountants or other experts selected by the
Agent, and (iii) the Agent in such capacity shall be entitled to rely upon
any notice, consent, certificate, statement or other document (including
any telegram, cable, telex, facsimile or telephone transmission) believed
by it to be genuine and correct and to have been signed and/or sent by the
proper Persons.
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8.04. The Agent as a Lender. The Agent shall have the same
rights and powers hereunder as any other Lender and may exercise the same
as though it were not the Agent, and the terms "Lender" or "Lenders",
unless the context otherwise indicated, include the Agent in its individual
capacity. The Agent may, without any liability to account, maintain
deposits or credit balances for, invest in, lend money to and generally
engage in any kind of banking business with the Borrower or any affiliate
of the Borrower as if it were any other Lender and without any duty to
account therefor to the other Lenders.
8.05. Lender Credit Decision. Neither the Agent nor any of
its officers or employees has any responsibility for, gives any guaranty in
respect of, nor makes any representation to the Lenders as to, (i) the
condition, financial or otherwise, of the Borrower or the truth of any
representation or warranty given or made herein or in any other Loan
Document, or in connection herewith or therewith or (ii) the validity,
execution, sufficiency, effectiveness, construction, adequacy,
enforceability or value of this Loan Agreement, the Assignment of Mortgage,
the Collateral Trust Agreement or the Letter Agreement or any other
document or instrument related hereto or thereto. Except as specifically
provided herein and in the Assignment of Mortgage, the Collateral Trust
Agreement and the Letter Agreement to which the Agent is a party, the Agent
shall have no duty or responsibility, either initially or on a continuing
basis, to provide any Lender with any credit or other information with
respect to the operations, business, property, condition or
creditworthiness of the Borrower, whether such information comes into the
Agent's possession on or before the date hereof or at any time thereafter.
Each Lender acknowledges that it has, independently and without reliance
upon the Agent or any other Lender, based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to
enter into this Loan Agreement and to authorize the Agent to execute on its
behalf the Collateral Trust Agreement. Each Lender also acknowledges that
it will independently and without reliance upon the Agent or any other
Lender, based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Loan Agreement or any other Loan
Document.
8.06. Indemnification. Each Lender agrees (which agreement
shall survive payment of the Loans and the Notes) to indemnify the Agent,
to the extent not reimbursed by the Borrower, ratably in accordance with
their Loans (as of the
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time of the incurrence of the liability being indemnified against), from
and against any and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent in any way relating to or arising out of this
Loan Agreement or any other Loan Document, or any action taken or omitted
to be taken by the Agent hereunder or thereunder; provided, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful misconduct of
the Agent or any of its officers or employees. Without limiting the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Agent in such capacity in connection with the
preparation, execution or enforcement of, or legal advice in respect of
rights or responsibilities under, this Loan Agreement, the Assignment of
Mortgage, the Collateral Trust Agreement or the Letter Agreement or any
amendments or supplements hereto or thereto, to the extent that the Agent
is not reimbursed for such expenses by the Borrower.
8.07 Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower, and the
Agent may be removed at any time by the Required Lenders by giving written
notice thereof to the Agent, the other Lenders and the Borrower at least
10 Business Days prior to the effective date of such removal. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the resigning Agent's giving of notice of resignation,
or the Required Lenders' giving notice of removal, as the case may be, the
resigning or removed Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws
of the United States of America or of any State thereof and having a
combined capital and surplus of at least $250,000,000. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers privileges and duties of the resigned or removed Agent, and the
resigned or removed Agent shall be discharged from its duties and
obligations under this Loan Agreement. After any Agent's resignation or
removal hereunder as Agent, the provisions of this Section 8 shall
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inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Loan Agreement.
SECTION 9
MISCELLANEOUS
9.01. Notices. Except as otherwise expressly provided herein,
all notices and other communications shall have been duly given and shall
be effective (i) when delivered, (ii) when transmitted via telecopy (or
other facsimile device) to the number set out below, (iii) the day
following the day on which the same has been delivered prepaid to a
reputable national overnight air courier service or (iv) the third Business
Day following the day on which the same is sent by certified or registered
mail, postage prepaid, in each case to the respective parties at the
address set forth below, or at such other address as such party may specify
by written notice to the other party hereto:
if to the Agent: Goldman Sachs Mortgage Company
85 Broad Street, 27th Floor
New York, New York 10004
Attention: Steven Mnuchin
Telephone: 902-0100
Telecopy: 902-3000
Copy to: Frances Bermanzohn
Telephone: 902-2609
Telecopy: 902-3000
if to the Borrower: Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telephone: 698-1440
Telecopy: 698-1453
if to the Lenders: at the addresses set forth on the signature
pages hereto
9.02. Benefit of Agreement; Assignments and Participations.
(a) This Loan Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto; provided that
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the Borrower may not assign and transfer any of its interests without prior
written consent of the Lenders.
(b) Any Lender may at any time grant to one or more banks or
other institutions (each a "Participant") participating interests in its
Loan. In the event of any such grant by a Lender of a participating
interest to a Participant, whether or not upon notice to the Borrower and
the Agent, such Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Loan Agreement. Any agreement pursuant
to which any Lender may grant such a participating interest shall provide
that such Lender shall retain the sole right and responsibility to enforce
the obligations of the Borrower hereunder including the right to approve
any amendment, modification or waiver of any provision of this Loan
Agreement; provided, that such participation agreement may provide that
such Lender will not agree to any modification, amendment or waiver of this
Loan Agreement described in clauses (i) through (vi), inclusive, of Section
9.05 without the consent of the Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.07, 2.09 and
9.04 with respect to its participating interest; provided, that all amounts
payable to a Lender for the account of a Participant under Sections 2.07,
2.09 and 9.04 shall be determined as if such Lender had not granted such
participation to the Participant.
(c) Any Lender may at any time assign to one or more banks or
other institutions (each as "Assignee") all or a proportionate part, of its
rights and obligations under this Loan Agreement and its Note, and such
Assignee shall assume such rights and obligations, pursuant to an
instrument executed by such Assignee, such transferor Lender and the Agent.
Upon execution and delivery of such an instrument, notification to the
Borrower of such Assignment and payment by such Assignee to such transferor
Lender of an amount equal to the purchase price agreed between such
transferor Lender and such Assignee, such Assignee shall be a Lender party
to this Loan Agreement and shall have all the rights and obligations of a
Lender and the transferor Lender shall be released from its obligations
hereunder to a corresponding extent. Upon the consummation of any
assignment pursuant to this subsection (c), the transferor Lender, the
Agent and the Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee.
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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 any of the Security Documents, the Collateral Trust
Agreement or the Letter Agreement and no course of dealing between the
Borrower and any Lender shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or
under any of the Security Documents, the Collateral Trust Agreement or the
Letter Agreement preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of
any rights or remedies which the Lenders would otherwise have. No notice
to or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Lenders to any other or further
action in any circumstances without notice or demand.
9.04. Payment of Expenses; Indemnification. The Borrower
agrees to:
(i) pay all reasonable out-of-pocket costs and expenses of
the Agent in connection with the negotiation, preparation, execution
and delivery and administration of this Loan Agreement, the Security
Documents, the Collateral Trust Agreement and the Letter Agreement
and the documents and instruments referred to therein and in
connection with the resale of the Loans, the exchange of the Notes
for the New Debt and the negotiation, preparation, execution and
delivery of any New Documents as contemplated by Section 5.09
(including, without limitation, the fees and expenses of Sullivan &
Cromwell and Cleary, Gottlieb, Steen & Hamilton, special counsel to
the Agent, and any indenture trustee, administrative agent
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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 Security Documents, the Collateral Trust Agreement
and the Letter Agreement and the documents and instruments referred to
therein (including, without limitation, the fees and disbursements of
counsel for the Agent and the Lenders);
(ii) pay and hold the Agent and the Lenders harmless from
and against any and all present and future stamp and other similar
taxes with respect to the foregoing matters and save the Agent and
the Lenders harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the
extent attributable to the Agent or the Lenders) to pay such taxes;
(iii) indemnify the Agent and the Lenders, their respective
officers, directors, partners, employees, representatives, affiliates
and agents from and hold each of them harmless against any and all
losses, liabilities, claims, damages or expenses incurred by any of
them as a result of, or arising out of, or in any way related to, or
by reason of, any investigation, litigation or other proceeding
(whether or not the Agent or any Lender is a party thereto) related
to the entering into and/or performance of this Agreement, the
Security Documents, the Collateral Trust Agreement or the Letter
Agreement or the use of proceeds of the Loans hereunder or the
consummation of any other transactions contemplated in this
Agreement, the Security Documents, the Collateral Trust Agreement or
the Letter Agreement (including the resale of the Loans and the
exchange of the Notes as contemplated by Section 5.09), including,
without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, litigation or
other proceeding, as the same are incurred (but excluding any such
losses, liabilities, claims, damages or expenses to the extent
incurred by reason of gross negligence or willful misconduct on the
part of the Person to be indemnified); and
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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 Borrower on the one hand and the Lenders
and the Agent on the other in connection with the actions which
resulted in such losses, liabilities, claims, damages or expenses (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Borrower on
the one hand and the Agent and the Lenders on the other hand shall be
deemed to be in the same proportion as the total net proceeds from
the Loans (before deducting expenses) received by the Borrower bear
to the net fees paid in accordance with Section 3.01(g) and retained
by the indemnified Agent or Lender. The relative fault shall be
determined by reference to, among other things, whether the action of
the Borrower on the one hand or the Lenders and the Agent on the
other and the parties relative intent, knowledge, access to informa-
tion 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.
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Neither the Agent nor any Lender, nor any of their partners, directors,
officers, agents or employees, shall be liable to the Borrower for any
action taken or omitted to be taken by it or any of them under or in
connection with any Loan Document, except for gross negligence or willful
misconduct attributable to such Person.
9.05. Amendments, Waivers and Consents. Any provision of this
Loan Agreement, the Notes, any of the Security Documents, the Collateral
Trust Agreement or the Letter Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Lenders (and, if the rights or duties of the
Agent are affected thereby, by the Agent); provided, that no such
amendment, waiver or modification shall, unless signed by all the Lenders
(i) subject any Lender to any additional obligation, (ii) reduce the
principal of or rate of interest on any Loan or any fees hereunder, (iii)
postpone the date fixed for any payment of principal of or interest on any
Loan or any fees hereunder, (iv) change the percentage of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, which shall
be required for the Lenders or any of them to take any action under this
Section 9.05 or any other provision of this Loan Agreement, (v) release all
or substantially all of the collateral for the Loans or (vi) amend or waive
the provisions of Section 6.12 or this Section 9.05.
9.06. Counterparts. This Loan Agreement may be executed in
any number of counterparts, each of which when so executed and delivered
shall be an original, but all of which shall constitute one and the same
instrument. It shall not be necessary in making proof of this Loan
Agreement to produce or account for more than one such counterpart.
9.07. Headings. The headings of the sections and subsections
hereof are provided for convenience only and shall not in any way affect
the meaning or construction of any provision of this Loan Agreement.
9.08. Survival of Indemnities. All indemnities set forth
herein, including, without limitation, in Section 9.04, shall survive the
execution and delivery of this Loan Agreement, the making of the Loan, and
the repayment of the Loan and other obligations hereunder.
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9.09. Governing Law; Submission to Jurisdiction; Venue.
(a) THIS LOAN AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Nothing herein shall
affect the right of the Agent or any Lender to commence legal proceedings
or to otherwise proceed against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Loan
Agreement, any of the Security Documents, the Collateral Trust Agreement or
the Letter Agreement brought in the courts referred to in subsection (a)
hereof and hereby further irrevocably waives and agrees not to plead or
claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum.
(c) THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS LOAN AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
9.10. Severability. If any provision of this Loan Agreement
is determined to be illegal, invalid or unenforceable, such provision shall
be fully severable and the remaining provisions shall remain in full force
and effect and shall be construed without giving effect to the illegal,
invalid or unenforceable provisions.
9.11. Entirety. This Loan Agreement together with the other
Loan Documents represents the entire agreement of the parties hereto and
thereto, and supersedes all prior agreements and understandings, oral or
written, if any, relating to the Loan Documents or the transactions
contemplated herein; provided, however, that nothing contained herein shall
affect any of the obligations of the Borrower to Goldman, Sachs & Co. and
Whitehall (and their respective affiliates) under the letter of intent,
dated November 17, 1994 among the Borrower and Goldman, Sachs & Co. and
Whitehall.
9.12. Survival of Representations and Warranties. All
representations and warranties made by the Borrower
-48-
<PAGE>
<PAGE> 49
herein shall survive delivery of the Notes and the making of the Loans
hereunder.
-49-
<PAGE>
<PAGE> 50
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Loan Agreement to be duly executed under seal and
delivered as of the date first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By:/s/ Richard M. Scarlata
Richard M. Scarlata
President and CEO
GOLDMAN SACHS MORTGAGE COMPANY, as Agent and as
Lender
By: Goldman Sachs Real Estate Funding
Corp., General Partner
By:/s/ Steven T. Mnuchin
Steven T. Mnuchin
President
Loan Commitment: $150,000,000
<PAGE>
<PAGE> 1
SCHEDULE 3.01
Fees
The Agent shall be paid a fee in the amount of 4.75% of the
aggregate principal amount of the Loans.
<PAGE>
<PAGE> 1
SCHEDULE 4.09
Indebtedness
<TABLE>
<CAPTION>
<S> <C>
A. Outstanding Indebtedness
Current Coupon Convertible Debentures due
2000 $213,170,000
Zero Coupon Convertible Debentures due 2000 326,863,314(1)
Letter of Credit supporting Company's
Commercial Paper Program 200,000,000
Accrued interest payable in connection with
Current Coupon Convertible Debentures
due 2000 50,954,187(2)
Dividends payable December 30, 1994 5,739,106(3)
Interest rate swaps (See Part C(i)) 19,046,677(4)
<FN> $815,773,284
(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
B. Outstanding Indebtedness to be repaid on or after Closing Date
Letter of Credit supporting Company's
Commercial Paper Program $200,000,000
Interest rate swaps (See Part C(ii)) 13,005,995
$213,005,995
</TABLE>
1 of 3
<PAGE>
<PAGE> 2
<TABLE>
SWAPS
30-Nov-94
<CAPTION>
Net Floating Mark-to
Financial Notional Maturity RCPI RCPI Receipt/ Rate Market
C(i) Institution Principal Date Receives Pays (Payment) Net Rate Resets 30-Nov-94
SWAP # Float Fixed
Rate Rate
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AIG Finan Pr 5 (30,000,000) 14-Jan-98 5.37500% 1,612,500 9.84000% (2,952,000) (1,339,500) 4.46500% 1/14, 7/14 (2,040,072)
Barclay's 6 (25,000,000) 12-Mar-98 5.31250% 1,328,125 9.33000% (2,332,500) (1,004,375) 4.01750% 3/12, 9/12 (1,231,010)
Barclay's 8 (50,000,000) 20-Apr-98 5.81250% 2,906,250 9.68500% (4,842,500) (1,936,250) 3.87250% 4/20,10/20 (2,769,600)
(105,000,000) 5.56845% 5,846,875 9.64476%(10,127,000) (4,280,125) 4.07631% (6,040,682)
</TABLE>
<TABLE>
(ii) SWAPS to be settled on or after closing date
<CAPTION>
Liability SWAP # Float Fixed
swaps Rate Rate
<S> <C> <C> <C> <C> <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) 3.82750% 2/2, 8/2 (954,295)
Chase Manhat 1 (30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,500) 5.10500% 6/21, 12/21 (3,028,516)
Chase Manhat 2 (30,000,000) 15-Oct-99 4.87500% 1,462,500 9.98000% (2,994,000) (1,531,500) 5.10500% 6/22, 12/22 (3,025,333)
Chase Manhat 3 (20,000,000) 05-Oct-99 5.06250% 1,012,500 9.84000% (1,968,000) (955,500) 4.77750% 6/29, 12/29 (1,853,551)
Chemical Ban 9 (50,000,000) 10-Jun-99 5.81250% 2,906,250 9.73600% (4,868,000) (1,961,750) 3.92350% 4/20, 10/20 (3,581,000)
Bank of Amer 4 (30,000,000) 30-Jun-97 5.25000% 1,575,000 9.84190% (2,952,570) (1,377,570) 4.59190% 1/12, 7/12 (1,906,000)
(180,000,000) 5.26736% 9,481,250 9.78032%(17,604,570) (8,123,320) 4.51296% $14,348,695)
</TABLE>
2 of 3
<PAGE>
<PAGE> 3
<TABLE>
SWAPS to be settled on or after closing date (cont'd.)
(ii)
(cont.)
<CAPTION>
Net Floating Mark-to
Financial Notional Maturity RCPI RCPI Receipt/ Rate Market
C(i) Institution Principal Date Receives Pays (Payment) Net Rate Resets 30-Nov-94
SWAP # Fixed Float
Rate Rate
<S> <C> <C> <C> <C> <C> <C> <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 3.76250% 2/16, 5/16, 8/16, 11/16 113,700
Chemical Ban 4 5,000,000 29-Mar-96 9.23000% 461,500 5.25000% (262,500) 199,000 3.98000% 3/29, 6/29, 9/29, 12/29 161,000
Chemical Ban 3 5,000,000 15-Sep-96 9.24500% 462,250 5.06250% (253,125) 209,125 4.18250% 3/15, 6/15, 9/15, 12/15 135,000
Bank of Amer 8 5,000,000 15-Feb-96 9.43000% 471,500 5.81250% (290,625) 180,875 3.61750% 2/15, 5/15, 8/15, 11/15 245,000
Bank of Amer 5 5,000,000 19-Sep-96 9.47000% 473,500 5.06250% (253,125) 220,375 4.40750% 3/21, 6/21, 9/21, 12/21 191,000
Bank of Amer 7 5,000,000 30-Sep-97 9.56000% 478,000 5.26560% (263,280) 214,720 4.29440% 3/30, 6/30, 9/30, 12/30 241,000
Bank of Amer 6 5,000,000 15-Apr-98 9.58700% 479,350 5.62500% (281,250) 198,100 3.96200% 1/17, 4/17, 7/17, 10/17 256,000
35,000,000 9.46029% 3,311,100 5.43080%(1,900,780) 1,410,320 4.02949% 1,342,700
SWAPS to be settled on or after closing date (13,005,995)
Total at 11/30/94 (19,046,677)
<TABLE/>
3 of 3
<PAGE>
<PAGE> 1
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>
<PAGE> 1
SCHEDULE 4.11
Material Agreements and
Negotiations with RCP or RCPA
Material Agreements -- No exceptions
Negotiations with RCP or -- The Borrower has requested the
RCPA consent specified in Section
3.01(k) and discussions with
respect to such consent are
ongoing.
<PAGE>
<PAGE> 1
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>
<PAGE> 1
EXHIBIT A
Floating Rate Promissory Note
$___________ December __, 1994
ROCKEFELLER CENTER PROPERTIES, INC., a Delaware corporation
(the "Borrower"), for value received, hereby promises to pay to the order
of ______________ (the "Lender"), to the account of
________________________ at __________________, in lawful money of the
United States, the principal sum of $____________ on December 31, 2000.
This Note shall bear interest on the unpaid principal amount hereof,
payable at the rates and on the dates set forth in the Loan Agreement (as
hereinafter defined).
Except as provided in the Loan Agreement, if this Note becomes
due and payable on a day which is not a Business Day (as defined in the
Agreement), the maturity hereof shall be extended to the next succeeding
Business Day, and interest shall be payable hereon at the rate specified in
the Agreement during such extension.
Except as provided in the Loan Agreement, the Borrower waives
presentment, demand, protest or other notice of any kind.
This Note is one of the Notes referred to in the Loan
Agreement, dated as of December __, 1994, among the Borrower, the Lenders
parties thereto and Goldman Sachs Mortgage Company, as Agent (the "Loan
Agreement"), and is entitled to the benefits provided therein. This Note
is subject to prepayment in whole or in part and its maturity is subject to
acceleration upon the terms provided in the Loan Agreement.
ROCKEFELLER CENTER PROPERTIES, INC.
By
A-1
<PAGE>
<PAGE> 1
EXHIBIT B
Officer's Certificate
I, _________________________, ________________ of Rockefeller
Center Properties, Inc. (the "Borrower"), hereby certify that, to the best
of my knowledge, with respect to that certain Loan Agreement among the
Borrower, the Lenders parties thereto and Goldman Sachs Mortgage Company,
as Agent, dated as of December __, 1994, as of the date hereof no Default
or Event of Default has occurred and is continuing.
This the ________ day of _______________, 19___.
_________________________
Name:____________________
Title:___________________
B-1
<PAGE>
<PAGE> 1
EXHIBIT C
Form of Assignment of Mortgage
[See EXHIBIT A to Collateral Trust Agreement which is attached as Exhibit
D]
C-1
<PAGE>
<PAGE>
EXHIBIT D
COLLATERAL
TRUST AGREEMENT
by and among
ROCKEFELLER CENTER PROPERTIES, INC.
and
BANKERS TRUST COMPANY
and
GARY R. VAUGHAN,
Trustees
______________
Dated as of December 29, 1994
D-1
<PAGE>
<PAGE> i
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 . . . . . . . . . . . . . . . 8
Section 2.1. Actionable Default . . . . . . . . . . . . . . . . . 8
Section 2.2. Remedies . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.3. Right to Initiate Judicial Proceedings, Etc. . . . . 10
Section 2.4. Appointment of a Receiver . . . . . . . . . . . . . . 10
Section 2.5. Exercise of Powers . . . . . . . . . . . . . . . . . 11
Section 2.6. Control by Lenders . . . . . . . . . . . . . . . . . 11
Section 2.7. Remedies Not Exclusive . . . . . . . . . . . . . . . 11
Section 2.8. Waiver of Certain Rights . . . . . . . . . . . . . . 12
Section 2.9. Borrower's and Trustee's Rights as to Collateral;
Limitation on Trustee's Duties in Respect of
Collateral. . . . . . . . . . . . . . . . . . . . . 12
Section 2.10. Limitation by Law . . . . . . . . . . . . . . . . . . 13
Section 2.11. Absolute Rights of Holders . . . . . . . . . . . . . 13
Section 2.12. Equal and Ratable Security . . . . . . . . . . . . . 13
SECTION 3 COLLATERAL ACCOUNT; APPLICATION OF MONEYS . . . . . . . . . 13
Section 3.1. The Collateral Account . . . . . . . . . . . . . . . 13
Section 3.2. Control of Collateral Account . . . . . . . . . . . . 14
Section 3.3. Investment of Funds Deposited in Collateral Account . 14
Section 3.4. Application of Moneys. . . . . . . . . . . . . . . . 15
Section 3.5. Application of Moneys Distributable to Holders of
Public Debt . . . . . . . . . . . . . . . . . . . . 16
SECTION 4 AGREEMENTS WITH TRUSTEE . . . . . . . . . . . . . . . . . . 16
Section 4.1. Delivery of Debt Instruments . . . . . . . . . . . . 16
Section 4.2. Information as to Holders. . . . . . . . . . . . . . 16
Section 4.3. Compensation and Expenses . . . . . . . . . . . . . . 17
D-2
<PAGE>
<PAGE> ii
Section 4.4. Stamp and Other Similar Taxes . . . . . . . . . . . . 17
Section 4.5. Filing Fees, Excise Taxes, Etc. . . . . . . . . . . . 17
Section 4.6. Indemnification . . . . . . . . . . . . . . . . . . . 17
Section 4.7. Further Assurances . . . . . . . . . . . . . . . . . 18
SECTION 5 THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.1. Acceptance of Trust . . . . . . . . . . . . . . . . . 18
Section 5.2. Exculpatory Provisions . . . . . . . . . . . . . . . 18
Section 5.3. Delegation of Duties . . . . . . . . . . . . . . . . 19
Section 5.4. Reliance by Trustee . . . . . . . . . . . . . . . . . 19
Section 5.5. Limitations on Duties of Trustee . . . . . . . . . . 20
Section 5.6. Moneys to Be Held in Trust . . . . . . . . . . . . . 21
Section 5.7. Resignation and Removal of the Trustee . . . . . . . 21
Section 5.8. Status of Successors to the Corporate Trustee . . . . 22
Section 5.9. Merger of the Corporate Trustee . . . . . . . . . . . 22
Section 5.10. Additional Co-Trustees; Separate Trustees . . . . . . 22
SECTION 6 RELEASE OF COLLATERAL . . . . . . . . . . . . . . . . . . . 24
Section 6.1. Condition to Release . . . . . . . . . . . . . . . . 24
Section 6.2. Procedure for Release . . . . . . . . . . . . . . . . 24
Section 6.3. Effective Time of Release . . . . . . . . . . . . . . 25
Section 6.4. Release of Certain Collateral . . . . . . . . . . . . 25
SECTION 7 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.1. Amendments, Supplements and Waivers . . . . . . . . . 26
Section 7.2. Notices . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.3. Headings . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.4. Severability . . . . . . . . . . . . . . . . . . . . 28
Section 7.5. Treatment of Payee or Indorsee by Trustee;
Acknowledgment of
Intercreditor Agreement . . . . . . . . . . . . . 28
Section 7.6. Dealings with the Borrower . . . . . . . . . . . . . 29
Section 7.7. Claims Against the Trustee . . . . . . . . . . . . . 29
Section 7.8. Binding Effect . . . . . . . . . . . . . . . . . . . 29
Section 7.9. Conflict with Other Agreements . . . . . . . . . . . 29
Section 7.10. Powers of Individual Trustee . . . . . . . . . . . . 29
Section 7.11. Streit Act . . . . . . . . . . . . . . . . . . . . . 30
Section 7.12. Governing Law . . . . . . . . . . . . . . . . . . . . 30
Section 7.13. Counterparts . . . . . . . . . . . . . . . . . . . . 30
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
D-3
<PAGE>
<PAGE> iii
ACKNOWLEDGMENTS
D-4
<PAGE>
<PAGE> 1
COLLATERAL TRUST AGREEMENT
COLLATERAL TRUST AGREEMENT ("Agreement") dated as of December
29, 1994 by and among ROCKEFELLER CENTER PROPERTIES, INC., a Delaware
corporation (the "Borrower"), Bankers Trust Company, New York banking
corporation (the "Corporate Trustee"), and Gary R. Vaughan (the "Individual
Trustee") (the Corporate Trustee and the Individual Trustee being herein
referred to collectively as the "Trustee"), trustees for the Holders of the
Secured Debt referred to below.
WITNESSETH:
WHEREAS, the Borrower and the New Private Lenders are entering
into the New Agreements;
WHEREAS, to induce the New Private Lenders to enter into the
New Agreements, the Borrower has agreed to secure, subject to the terms and
conditions of this Agreement and the Security Documents, the payment of the
Secured Debt; and
WHEREAS, the effectiveness of the New Agreements is conditioned
upon this Agreement and the related Security Documents having been duly
executed and delivered;
DECLARATION OF TRUST:
NOW, THEREFORE, to secure the payment, observance and
performance of the Secured Debt and in consideration of the premises and
the mutual agreements set forth herein, the Borrower hereby assigns and
pledges to the Trustee for its benefit and the equal and ratable benefit of
the Secured Parties, and hereby grants to the Trustee for its benefit and
the equal and ratable benefit of the Secured Parties a security interest
in, the following:
(a) all of the Borrower's right, title and interest in and to
that certain Mortgage Note, dated as of September 19, 1985, in the
principal amount of $1,255,160,004.00 made by RCP Associates and
Rockefeller Center Properties (collectively, the "Mortgagor") to the
Borrower, as amended by that certain Consent and Agreement (the
"Consent Agreement"), dated as of December 1, 1988, between the
Borrower and the Mortgagor (as the same may hereafter be amended,
supplemented or modified, the "Mortgage Note");
D-5
<PAGE>
<PAGE> 2
(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");
(c) all of the Borrower's right, title and interest in and to
those certain mortgages listed in Schedule I hereto which secure the
Notes, each of which has been recorded in the Office of the City
Register of the County of New York and encumbers (i) the land
described therein, (ii) the appurtenances, easements and other rights
pertaining to such land and (iii) the buildings, improvements and
fixtures now or hereafter located or constructed thereon
(collectively, as the same may hereafter be amended, supplemented or
modified, the "Mortgages");
(d) all of the Borrower's right, title and interest, in and
to all amounts payable to the Borrower as a result of any drawing
under the letters of credit described in Schedule II hereto or any
additional or substitute letters of credit naming the Borrower as
beneficiary provided to the Borrower pursuant to the Loan Agreement
dated as of September 19, 1985, as amended (the "Loan Agreement"),
between the Mortgagor and the Borrower (each such letter of credit
being a "Letter of Credit");
(e) all of the Borrower's right, title and interest in and to
(x) the Escrow Account (as defined in the Loan Agreement), if any,
and (y) the Collateral Account, all funds held therein and all
certificates and instruments, if any, from time to time representing
or evidencing the Escrow Account or the Collateral Account, as the
case may be (the "Account Collateral");
(f) all of the Borrower's right, title and interest in and to
that certain Amended and Restated Purchase Option, dated as of
December 1, 1988, as amended, among RCP Associates, Rockefeller
Center Properties and the Borrower (the "Assigned Agreement"),
provided that this clause (f) shall have no effect unless and until
all necessary consents have been obtained, which the Borrower shall
use its best efforts to obtain;
(g) all of the Borrower's right, title and interest in and to
(x) the title insurance policy set forth in Schedule III hereto and
(y) any amounts paid to the Borrower under the title insurance policy
described in the Letter Agreement (the "Title Insurance"); and
(h) all Proceeds of any and all of the foregoing.
D-6
<PAGE>
<PAGE> 3
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 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.
D-7
<PAGE>
<PAGE> 4
"Affiliate" means "Affiliate" as defined in the New Agreements.
"Assignment of Mortgage" means the Assignment of Mortgage dated
December 29, 1994 from the Borrower to the Trustee in substantially
the form of Exhibit A hereto.
"Bankruptcy Code" means the federal Bankruptcy Code, as amended
from time to time.
"Business Day" means any day other than a Saturday, a Sunday, a
legal holiday in New York, New York or a day on which banking
institutions in New York, New York are authorized by law or other
governmental action to close.
"Collateral" means all property of the Borrower in which liens
or security interests have been, or have purportedly been, granted to
the Trustee from time to time under this Agreement and the Security
Documents.
"Collateral Account" means the "Collateral Account" as defined
in Section 3.1 of this Agreement.
"Debt Instruments" means the New Agreements, the Public
Indenture and the notes or other instruments or securities issued
pursuant thereto.
"Discharge Notice" means a written notice, signed by a
Responsible Officer of the Borrower, which requests a discharge of
the Security Documents in accordance with the provisions of Section
6.2 of this Agreement and which certifies to the Trustee that
(i) the event enumerated in Section 6.1(a)(ii)(A) of
this Agreement has occurred, and
(ii) the Borrower would not be in default under or
otherwise in breach of any provision or covenant contained in
the New Agreements or the Public Indenture after, or as a
result of, the release of the Collateral.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"GSMC Agreement" means the Loan Agreement dated as of December
18, 1994 among the Borrower, the lenders parties thereto and Goldman
Sachs
D-8
<PAGE>
<PAGE> 5
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.
"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.
D-9
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<PAGE> 6
"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.
"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
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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.
"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
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New Agreements and the Public Indenture, and (ii) fees, expenses and
charges (including, without limitation, indemnification obligations) due or
owing to any Secured Party arising under any Debt Instrument, this
Agreement or any Security Document.
"Secured Party" means any New Lender, any New Trustee, the
Trustee, any Public Lender, the Public Trustee or any other obligee
or indemnified party under any New Agreement, New Indenture, Public
Indenture or Security Document.
"Security Documents" means this Agreement, the Assignment of
Mortgages, the Letter Agreement, any additional documents executed to
reflect the grant to the Corporate Trustee, the Individual Trustee or
the Trustee of a lien upon or security interest in any Collateral,
and any agreement or document referred to in Section 4.7, Section
7.1(a) or Section 7.1(b) of this Agreement, as the same may be
amended, supplemented or otherwise modified in accordance with their
respective terms.
"Trustee's Fees" means all fees, costs and expenses of the
Trustee of the types described in Sections 4.3, 4.4, 4.5 and 4.6 of
this Agreement.
"Whitehall Agreement" means the Debenture Purchase Agreement
dated as of December 18, 1994 between the Borrower and Whitehall
Street Real Estate Limited Partnership V, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with the terms thereof.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement and section
references are to this Agreement unless otherwise specified.
(c) In each case herein where "Holders" are entitled to vote
on any matter or to instruct the Trustee, the Public Trustee shall so vote
or instruct the Trustee on behalf of the Holders of Public Debt and any New
Trustee shall so vote or instruct the Trustee on behalf of the Holders of
the respective New Indenture Debt. Subject to Section 3.5 of this
Agreement, in each case herein where any payment or distribution is to be
made or notice is to be given to "Holders," such payments, distributions
and notices (i) in respect of the Public Debt, shall be made to the Public
Trustee for the benefit of the Holders thereof and (ii) in respect of the
any New Indenture Debt, shall be made to the respective New Trustee for the
benefit of the Holders thereof.
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(d) All terms defined in this Agreement in the singular
shall have comparable meanings when used in the plural, and vice versa,
unless otherwise specified.
(e) Terms not otherwise defined herein which are defined in
or used in Article 9 of the Uniform Commercial Code as in effect in the
State of New York shall herein have the respective meanings given to them
in Article 9.
(f) For purposes of this Agreement, the unpaid principal
amount at any time of the Zero Coupon Convertible Debentures due 2000
issued under the Public Indenture shall equal the Acceleration Amount (as
defined in the Public Indenture) thereof at such time.
Section 1.2. Delivery of Collateral. (a) On the date hereof
the Borrower hereby delivers to the Trustee for the benefit of the Secured
Parties the following:
(i) the Notes duly endorsed in blank, together with a letter
to the obligors thereof to pay amounts due on the Notes to the
Collateral Account, in the form of Exhibit B hereto;
(ii) the letters of credit described in Schedule II hereto;
(iii) the Assignment of Mortgages;
(iv) the Letter Agreement; and
(v) a letter in the form of Exhibit C hereto sent to each
issuer of an insurance policy set forth in Schedule III hereto
acknowledged by such issuer.
(b) The Borrower hereby agrees that (i) to the extent
permitted by the Letters of Credit, it will direct each issuer of a Letter
of Credit to pay the proceeds of any draw thereunder directly to the
Collateral Account and (ii) in case an Escrow Account is established, it
will deliver to the Trustee a letter in the form of Exhibit D hereto
acknowledged by the institution maintaining the Escrow Account.
SECTION 2
ACTIONABLE DEFAULTS; REMEDIES
Section 2.1. Actionable Default. (a) Upon receipt of a
Notice of Actionable Default, the Trustee shall, within five (5) days
thereafter, notify each New Trustee, each New Private Lender and the Public
Trustee that an Actionable Default
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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 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.
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(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
(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
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(ii) the Trustee may, either after entry or without entry, proceed by suit
or suits at law or in equity to enforce such rights and to foreclose upon
the Collateral and to sell all or, from time to time, any of the Trust
Estate under the judgment or decree of a court of competent jurisdiction.
Section 2.4. Appointment of a Receiver. If a receiver of the
Trust Estate shall be appointed in judicial proceedings, the Corporate
Trustee may be appointed as such receiver. Notwithstanding the appointment
of a receiver, the Trustee shall be entitled to retain possession and
control of all cash held by or deposited with it or its agents or co-
trustees pursuant to any provision of this Agreement or any Security
Document.
Section 2.5. Exercise of Powers. All of the powers, remedies
and rights of the Trustee as set forth in this Agreement may be exercised
by the Trustee in respect of any Security Document as though set forth at
length therein and all the powers, remedies and rights of the Trustee as
set forth in any Security Document may be exercised from time to time as
herein and therein provided.
Section 2.6. Control by Lenders. (a) Subject to Section
2.6(b) of this Agreement, if the Trustee shall have received a Notice of
Actionable Default and during such time as such Notice of Actionable
Default shall not have been withdrawn in accordance with the provisions of
Section 2.1(b) hereof, (i) the Requisite Lenders shall have the right, by
an instrument in writing executed and delivered to the Trustee, to direct
the Trustee to initiate the exercise of remedies with respect to the
Collateral and (ii) the Required Lenders shall have the right, by an
instrument in writing executed and delivered to the Trustee, to direct the
Trustee to refrain from exercising any right, remedy, trust or power
available to or conferred upon the Trustee hereunder.
(b) The Trustee shall not be obligated to follow any written
directions received pursuant to Section 2.2(a) or 2.6(a), (i) to the extent
the Trustee has received an opinion of independent counsel, to the effect
that such written directions are in conflict with any provisions of law or
this Agreement or (ii) in the case of directions from the Requisite
Lenders, if the Trustee has received written directions from the Required
Lenders inconsistent with such 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.
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(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.
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
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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 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
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exercisable only by the Trustee) it may have in connection with, a case
under the Bankruptcy Code in which the Borrower is a debtor, or the
obligation of the Borrower, which is also absolute and unconditional, to
pay the Secured Debt owing by the Borrower to each Holder at the time and
place expressed therein shall not be impaired or affected without the
consent of such Holder.
Section 2.12. Equal and Ratable Security. This Agreement and
the Security Documents are intended to secure the unpaid principal of and
accrued interest and premium, if any, on the Public Debt, together with all
expenses, charges or other amounts arising under the Public Indenture,
equally and ratably with all other indebtedness secured under this
Agreement and the Security Documents to the extent required by the Public
Indenture, and shall be construed and enforced to give effect to such
intention.
SECTION 3
COLLATERAL ACCOUNT; APPLICATION OF MONEYS
Section 3.1. The Collateral Account. On the date hereof there
shall be established and, at all times thereafter until the trusts created
by this Agreement shall have terminated, there shall be maintained with the
Corporate Trustee an account which shall be entitled the "RCPI Collateral
Account" (herein called the "Collateral Account"). The Collateral Account
shall be established and maintained by the Corporate Trustee at the office
of its corporate trust department. All moneys paid with respect to the
Collateral shall be deposited in the Collateral Account and thereafter
shall be held and applied by the Corporate Trustee in accordance with the
terms of this Agreement.
Section 3.2. Control of Collateral Account. All right, title
and interest in and to the Collateral Account shall vest in the Corporate
Trustee, and funds on deposit in the Collateral Account shall constitute
part of the Trust Estate. The Collateral Account shall be subject to the
exclusive dominion and control of the Corporate Trustee in accordance with
the terms hereof.
Section 3.3. Investment of Funds Deposited in Collateral
Account. The Corporate Trustee shall invest and reinvest moneys on deposit
in the Collateral Account as directed by the Borrower, so long as the
Trustee has not received a Notice of Actionable Default, at any time in:
(i) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States of America is
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pledged in support thereof) having maturities of not more than six months
from the date of acquisition,
(ii) U.S. dollar denominated time deposits and
certificates of deposit of a bank (an "Approved Bank") that is
either (x) any domestic commercial bank of recognized standing
having capital and surplus in excess of $500,000,000 or (y) any
bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Moody's is at least
P-1 or the equivalent thereof, in each case with maturities of
not more than six months from the date of acquisition,
(iii) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof)
or any variable rate notes issued or guaranteed by any Approved
Bank rated at least A-1 (or the equivalent thereof) by S&P or
at least P-1 (or the equivalent thereof) by Moody's and
maturing within six months of the date of acquisition,
(iv) repurchase agreements with a bank or trust company
or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or
fully guaranteed by the United States of America in which the
Borrower shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the
amount of the repurchase obligations, and
(v) publicly traded short-term notes, bonds and other
obligations having short-term unsecured debt ratings of at
least A-1 (or the equivalent thereof) by S&P or at least P-1
(or the equivalent thereof) by Moody's;
provided, however, that if no investment directions are received the
Trustee shall invest such moneys in such investments, to the extent such
investments are available, in the order set forth above; provided, further,
that the maximum amount of the funds held in the Collateral Account which
may be invested in obligations of the types described in clauses (ii),
(iii), (iv) and (v) above of any one issuer shall not exceed the lesser of
five percent (5.0%) of such funds or $10,000,000. All such investments and
the interest and income received thereon and therefrom and the net proceeds
realized on the sale thereof shall be held in the Collateral Account as
part of the Trust Estate.
Section 3.4. Application of Moneys. (a) Prior to the
occurrence and after the curing of a Payment Default all moneys received by
the Trustee for deposit in the
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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 Corporate Trustee in the Collateral Account
shall, to the extent available for distribution, be distributed (or, in the
case of moneys to be distributed to the Holders of Public Debt, deposited
in a separate account for the benefit of the Public Trustee pursuant to
Section 3.5, if applicable) by the Corporate Trustee as follows:
FIRST: To the Trustee in an amount equal to the unpaid
Trustee's Fees, and to any Secured Party which has theretofore
advanced or paid any such Trustee's Fees in an amount equal to the
amount thereof so advanced or paid by such Secured Party;
SECOND: Provided the Trustee has not received a Notice of
Actionable Default, to the Holders of Secured Debt with respect to
which a Payment Default has occurred and is continuing, in an amount
equal to the amount of such Payment Default and, in case such moneys
shall be insufficient to pay in full such amount, then to the payment
of such amount ratably (without priority of any one over any other)
to each such Holder in proportion to the amount thereof;
THIRD: To the Secured Parties in an amount equal to the costs
and expenses of and any other amounts due to the Secured Parties and
their representatives not otherwise referred to in this Section
3.4(b) which are payable by the Borrower to the Secured Parties under
the relevant Debt Instrument, and, in case such moneys shall be
insufficient to pay in full such costs and expenses and other
amounts, then to the payment thereof ratably (without priority of any
one over any other) to each Secured Party in proportion to the unpaid
amounts thereof;
FOURTH: To the Secured Parties in an amount equal to the
unpaid interest on the Secured Debt whether or not then due and
payable, and, in case such moneys shall be insufficient to pay in
full such interest, then to the payment thereof ratably (without
priority of any one over any other) to each Secured Party in
proportion to the unpaid amounts thereof;
FIFTH: To the Secured Parties in an amount equal to the unpaid
principal of, and all premium on, the Secured Debt whether or not
then due and payable, and, in case such moneys shall be insufficient
to pay in full such principal and premium, then to the payment
thereof ratably (without priority of any one over any other) to each
Secured Party in proportion to the unpaid amounts thereof; and
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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 FIRST, FOURTH
and FIFTH of subsection (b) shall mean all amounts of outstanding Trustee's
Fees and Secured Debt as to which prior distributions (whether actually
distributed or set aside pursuant to Section 3.5) have not been made, or if
made, have subsequently been recovered from the recipient thereof.
Section 3.5. Application of Moneys Distributable to Holders of
Public Debt. If at any time any moneys collected or received by the
Trustee pursuant to this Agreement or any of the Security Documents are
distributable pursuant to Section 3.4(b) of this Agreement to the Public
Trustee, and if the Public Trustee shall notify the Trustee that no
provision is made under the Public Indenture (i) for the application by the
Public Trustee of such amounts so distributable (whether by virtue of the
Secured Debt issued under the Public Indenture not having become due and
payable or otherwise), or (ii) for the receipt and the holding by the
Public Trustee of such amounts pending the application thereof, then the
Corporate Trustee shall invest such amounts in obligations of the kinds
referred to in Section 3.3(i) of this Agreement having maturities of ninety
(90) days or less, and shall hold all such amounts so distributable, and
all such investments and the proceeds thereof, in trust solely for the
Public Trustee (in its capacity as trustee) and for no other purpose until
such time as the Public Trustee shall request the delivery thereof by the
Trustee to the Public Trustee for application by it pursuant to the Public
Indenture.
SECTION 4
AGREEMENTS WITH TRUSTEE
Section 4.1. Delivery of Debt Instruments. On the date
hereof, the Borrower will deliver to the Trustee true and complete copies
of the New Agreements and the Public Indenture. The Borrower agrees that,
promptly upon the execution thereof, the Borrower will deliver to the
Trustee a true and complete copy of any and all amendments, modifications
or supplements to any New Agreement or the Public Indenture entered into by
the Borrower subsequent to the date hereof.
Section 4.2. Information as to Holders. The Borrower agrees
that it shall deliver to the Trustee by December 1 in each year and from
time to time within 10 days of a request by the Trustee, a list setting
forth (i) the aggregate principal amount outstanding under the Public
Indenture and any New Indenture, (ii) the interest rates then
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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.
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,
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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 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,
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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 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,
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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 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)
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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
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
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aforesaid notice of resignation or within thirty (30) days from the date of
such removal, the Corporate Trustee or the Individual Trustee, as
applicable, shall, or any Holder may, apply to any court of competent
jurisdiction to appoint a successor trustee or trustees (which may be an
individual or individuals) to act until such time, if any, as a successor
trustee or trustees shall have been appointed as above provided. Any
successor trustee or trustees so appointed by such court shall immediately
and without further act be superseded by any successor trustee or trustees
approved by the Majority Holders as above provided.
(b) If at any time the Corporate Trustee or the Individual
Trustee shall resign, be removed or otherwise become incapable of acting,
or if at any time a vacancy shall occur in the office of the Corporate
Trustee or the Individual Trustee for any other cause, a successor trustee
or trustees may be appointed by the Borrower, and the powers, duties,
authority and title of the predecessor trustee or trustees terminated and
cancelled without procuring the resignation of such predecessor trustee or
trustees, and without any other formality (except as may be required by
applicable law) than the appointment and designation of a successor trustee
or trustees in writing, duly acknowledged, delivered to the predecessor
trustee or trustees and the Borrower, and filed for record in each public
office, if any, in which this Agreement is required to be filed.
(c) The appointment and designation referred to in Section
5.7(b) of this Agreement shall, after any required filing, be full evidence
of the right and authority to make the same and of all the facts therein
recited, and this Agreement shall vest in such successor or trustee or
trustees, without any further act, deed or conveyance, all of the estate
and title of its predecessor or their predecessors, and upon such filing
for record the successor trustee or trustees shall become fully vested with
all the estates, properties, rights, powers, trusts, duties, 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
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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
successor or successors, or to act as separate trustee or trustees of any
such property. In the event the Borrower shall not have joined in the
execution of such instruments and agreements within ten (10) days after the
receipt of a written request from the Trustee so to do, or in case an
Actionable Default shall have occurred and be continuing, the Trustee may
act under the foregoing provisions of this Section 5.10 without the
concurrence of the Borrower, and the Borrower hereby irrevocably appoints
the Trustee as its agent and attorney to act for it under the foregoing
provisions of this Section 5.10 in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than
any trustee which may be appointed as successor to Bankers Trust Company or
Gary R. Vaughan,
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shall, to the extent permitted by law, be appointed and act and be such,
subject to the following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon
the Trustee in respect of the custody, control and management of
moneys, papers or securities shall be exercised solely by the
Corporate Trustee, or its successors as Corporate Trustee hereunder;
(ii) all rights, powers, duties and obligations conferred or
imposed upon the Trustee hereunder shall be conferred or imposed and
exercised or performed by the Trustee and such separate trustee or
separate trustees or co-trustee or co-trustees, jointly, as shall be
provided in the instrument appointing such separate trustee or
separate trustees or co-trustee or co-trustees, except to the extent
that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations shall be exercised and performed by
such separate trustee or separate trustees or co-trustee or co-
trustees;
(iii) no power given hereby to, or which it is provided hereby
may be exercised by, any such co-trustee or co-trustees or separate
trustee or separate trustees, shall be exercised hereunder by such
co-trustee or co-trustees or separate trustee or separate trustees,
except jointly with, or with the consent in writing of, the Trustee,
anything herein contained to the contrary notwithstanding;
(iv) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(v) the Borrower and the Trustee, at any time by an
instrument in writing, executed by them jointly, may accept the
resignation of or remove any such separate trustee or co-trustee, and
in that case, by an instrument in writing executed by the Borrower
and the Trustee jointly, may appoint a successor to such separate
trustee or co-trustee, as the case may be, anything herein contained
to the contrary notwithstanding. In the event that the Borrower
shall not have joined in the execution of any such instrument within
ten (10) days after the receipt of a written request from the Trustee
so to do, or in case an Actionable Default shall have occurred and be
continuing, the Trustee shall have the power to accept the
resignation of or remove any such separate trustee or co-trustee and
to appoint a successor without the concurrence of the Borrower, the
Borrower hereby irrevocably appointing the Trustee its agent and
attorney to act for it in such connection in either of such
contingencies. In the event that the Trustee shall have appointed a
separate trustee or separate trustees or co-trustee or co-
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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
6.1(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 6.1(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 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
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(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 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.
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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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(iv) amend, modify or waive any provision of Section 3.4 of
this Agreement or the definition of the term "Secured Debt" without
the written consent of any Secured Party whose rights would be
adversely affected thereby, or
(v) amend, modify or waive any provision of this Agreement or
any Security Document so as to adversely affect any of the Trustee's
rights, immunities or indemnities hereunder or thereunder or enlarge
its duties hereunder or thereunder, without the written consent of
the Trustee.
Any such supplemental agreement shall be binding upon the Borrower, the
Holders and the Trustee and their respective successors and assigns. The
Trustee shall not enter into any such supplemental agreement unless it
shall have received a certificate signed by the chief financial officer of
the Borrower to the effect that such supplemental agreement will not result
in a breach of any provision or covenant contained in the Public Indenture.
(b) Without the consent of the Holders, the Borrower and the
Trustee, at any time and from time to time, may enter into additional
Security Documents or one or more agreements supplemental hereto or to any
Security Document, in form satisfactory to the Trustee,
(i) to add to the covenants of the Borrower for the benefit
of the Holders;
(ii) to mortgage, pledge or grant a security interest in
favor of the Trustee as additional security for the Secured Debt
pursuant to any Security Document; or
(iii) to cure any ambiguity, to correct or supplement any
provision herein or in any Security Document which may be defective
or inconsistent with any other provision herein or therein; provided,
however, that any such action contemplated in this clause (iii) shall
not adversely affect the interests of any Holder in any material
manner.
Section 7.2. Notices. Except as otherwise expressly provided
herein, all notices and other communications shall be given to the
respective parties at the address set forth below, or at such other address
as such party may specify by written notice to the other party hereto:
if to the Borrower:
Rockefeller Center Properties, Inc.
D-34
<PAGE>
<PAGE> 31
1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telecopy No.: (212) 698-1453
if to the Corporate Trustee and the Individual Trustee:
Bankers Trust Company
Four Albany Street
New York, New York 10015
Attention: RCPI Collateral Trust
Telecopy No.: (714) 253-7577
if to the Public Trustee, any New Trustee or any
New Private Lender: to it at the address specified
from time to time in the list provided by the
Borrower to the Trustee.
All such notices, requests, demands and communications shall, to be
effective hereunder, be in writing or by a telecommunications device
capable of creating a written record, and shall be deemed to have been
given or made when delivered by hand or five (5) Business Days after its
deposit in the mail, first class or air postage prepaid, or in the case of
notice by such a telecommunications device, when properly transmitted or in
the case of notice by publication, when such notice appears in such
publication; provided, however, that any notice, request, demand or other
communication to the Trustee shall not be effective until received.
Section 7.3. Headings. Section, subsection and other headings
used in this Agreement are for convenience only and shall not affect the
construction of this Agreement.
Section 7.4. Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall not
invalidate the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction, provided that this
Agreement shall be construed so as to give effect to the intention
expressed in Section 2.12 hereof.
Section 7.5. Treatment of Payee or Indorsee by Trustee;
Acknowledgment of Intercreditor Agreement. (a) The Trustee may treat the
registered holder of any registered note, and the payee or indorsee of any
note or debenture which is not registered, as the absolute owner thereof
for all purposes hereunder and shall not be
D-35
<PAGE>
<PAGE> 32
affected by any notice to the contrary, whether such promissory note or
debenture shall be past due or not.
D-36
<PAGE>
<PAGE> 33
(b) Any Person which shall be designated as the duly
authorized representative of one or more Holders of Secured Debt to act as
such in connection with any matters pertaining to this Agreement or any
Security Document or the Collateral shall present to the Trustee such
documents, including, without limitation, opinions of counsel, as the
Trustee may reasonably require, in order to demonstrate to the Trustee the
authority of such Person to act as the representative of such Holders.
(c) The Trustee acknowledges receipt of the Intercreditor
Agreement dated as of December 18, 1994 between Goldman Sachs Mortgage
Company and Whitehall Street Real Estate Limited Partnership V and the
rights of the parties thereunder including, without limitation, the rights
of subrogation pursuant to Paragraph 6 thereof.
Section 7.6. Dealings with the Borrower. (a) Upon any
application or demand by the Borrower to the Trustee to take or permit any
action under any of the provisions of this Agreement or any Security
Document, the Borrower shall furnish to the Trustee a certificate signed by
a Responsible Officer of the Borrower stating that all conditions
precedent, if any, provided for in this Agreement or any Security Document
relating to the proposed action have been complied with, except that in the
case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Agreement or
any Security Document, relating to such particular application or demand,
no additional certificate or opinion need be furnished.
(b) Any opinion of counsel may be based, insofar as it
relates to factual matters, upon a certificate of Responsible Officers of
the Borrower delivered to the Trustee.
Section 7.7. Claims Against the Trustee. Any claims or causes
of action which the New Lenders, the Public Trustee, any other Holders of
Secured Debt or the Borrower shall have against the Trustee shall survive
the termination of this Agreement and the release of the Collateral
hereunder.
Section 7.8. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and shall inure
to the benefit of the Holders and their respective successors and assigns,
and nothing herein or in any Security Document is intended or shall be
construed to give any other Person any right, remedy or claim under, to or
in respect of this Agreement, any Security Document, the Collateral or the
Trust Estate.
Section 7.9. Conflict with Other Agreements. The parties
agree that in the event of any conflict between the provisions of this
Agreement and the provisions of any of the Security Documents, the
provisions of this Agreement shall control.
D-37
<PAGE>
<PAGE> 34
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
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.
D-38
<PAGE>
<PAGE> 35
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
Richard M. Scarlata
President
Attest:
By:
Name:
Title:
[CORPORATE SEAL]
BANKERS TRUST COMPANY
By
Name:
Title:
D-39
<PAGE>
<PAGE> 36
Attest:
By
Name:
Title:
[CORPORATE SEAL]
GARY R. VAUGHAN
D-40
<PAGE>
<PAGE> 37
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally came
Richard M. Scarlata and ________________to me personally known and known to
me to be the persons described in and who executed the foregoing instrument
as President and_______________ respectively, of ROCKEFELLER CENTER
PROPERTIES, INC., a Delaware corporation, who, being by me duly sworn, did
depose and say that they reside at
and , respectively; that they are
President and , respectively, of ROCKEFELLER CENTER
PROPERTIES, INC., one of the corporations described in and which executed
the foregoing instrument; that they know the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that said
instrument was signed and sealed on behalf of said corporation by order of
its Board of Directors; that they signed their names thereto by like order,
and that they acknowledged said instrument to be the free act and deed of
said corporation.
Notary Public
County,
[SEAL]
My commission expires:
D-41
<PAGE>
<PAGE> 38
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally came
, to me personally known and known to me to be the person
described in and who executed the foregoing instrument as _________________
of Bankers Trust Company, a New York banking corporation, who, being by me
duly sworn, did depose and say that he resides at
; that he is
of Bankers Trust Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that said instrument was signed and sealed on behalf of said
corporation pursuant to its by-laws; that he signed his name thereto by
like authority, and that he acknowledged said instrument to be the free act
and deed of said corporation.
Notary Public
County,
[SEAL]
My commission expires:
D-42
<PAGE>
<PAGE> 39
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss:
On this day of December, 1994 before me personally
came Gary R. Vaughan, to me personally known and known to me to be
the person described in and who executed the foregoing instrument not in
his individual capacity (except as otherwise expressly provided in this
Agreement) but solely as trustee, who, being by me duly sworn, did depose
and say that he resides in , and that he acknowledged said
instrument to be his free act and deed.
Notary Public
County,
[SEAL]
My commission expires:
D-43
<PAGE>
<PAGE> 1
EXHIBIT A to Collateral Trust Agreement
___________________________________________________________________________
ASSIGNMENT OF MORTGAGES
Dated as of December 29, 1994
by
ROCKEFELLER CENTER PROPERTIES, INC.
("Assignor")
to
Bankers Trust Company
(the "Corporate Trustee")
and
Gary R. Vaughan
(the "Individual Trustee";
and together with the Corporate Trustee, "Assignee")
___________________________________________________________________________
This Pledge and Assignment should be indexed against the following tax
lots:
Parcel A-1: Block 1265 Lots 1001-1109 (30 Rockefeller Plaza and 1250
Avenue of the Americas)
Parcel A-2: Block 1265, Lot 50 (610 Fifth Avenue and 620 Fifth
Avenue)
Parcel A-3: Block 1265 Lot 40 (No street address)
Parcel A-4: Block 1265 Lot 8040 (No street address)
Parcel B: Block 1266 Lot 1 (1270 Avenue of the Americas, 50
Rockefeller Plaza and 630 Fifth
Avenue)
Parcel C: Block 1264 Lot 5 (1230 Avenue of the Americas, 10
Rockefeller Plaza and 1
Rockefeller Plaza)
Parcel D: Block 1265 Lot 71 (1256 Avenue of the Americas)
Parcel E-1: Block 1264 Part of Lot 30 (600 Fifth Avenue)
Parcel E-2: Block 1264 Part of Lot 30 (600 Fifth Avenue)
Parcel E-3: Block 1264 Part of Lot 30 (600 Fifth Avenue)
D-A-1
<PAGE>
<PAGE> 2
ASSIGNMENT OF MORTGAGES
THIS ASSIGNMENT OF MORTGAGES (this "Assignment") made as of the
29th day of December, 1994, by ROCKEFELLER CENTER PROPERTIES, INC., a
Delaware corporation having an office at 1270 Avenue of the Americas, New
York, New York 10020 ("Assignor"), to Bankers Trust Company, a New York
banking corporation having an office at Four Albany Street, New York, New
York 10015 (the "Corporate Trustee") and Gary R. Vaughan, an individual
having an office at c/o Bankers Trust Company, Four Albany Street, New
York, New York 10015 (the "Individual Trustee", and, together with the
Corporate Trustee, "Assignee") as trustees under that certain Collateral
Trust Agreement, dated as of the date hereof, among Assignor and Assignee
(the "Trust Agreement").
NOW THEREFORE, in order to secure the payment of all Secured
Debt (as defined in the Trust Agreement) of Assignor, Assignor hereby
assigns unto Assignee all of the Assignor's right, title and interest in
and to all of those certain mortgages listed in Annex A hereto, each of
which has been recorded in the office of the City Register of the County of
New York and covers the land described in Annex B hereto and the
appurtenances, easements and other rights pertaining to such land and the
buildings, improvements and fixtures now or hereafter located or
constructed thereon.
TO HAVE AND TO HOLD the same unto Assignee and its successors
and assigns from and after the date hereof forever, SUBJECT, HOWEVER, to
all of the terms, provisions and conditions of the Trust Agreement,
including, but not limited to, reassignment to Assignor or its designee
pursuant to Section 6 thereof.
This Assignment shall be governed by the laws of the State of
New York.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of
the date first set forth above.
ASSIGNOR
ROCKEFELLER CENTER PROPERTIES, INC.
By:_________________________________
Richard M. Scarlata
President
D-A-2
<PAGE>
<PAGE> 3
Annex A
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, 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".
D-A-3
<PAGE>
<PAGE> 4
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: $34,516900.00)
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 tween 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.
D-A-4
<PAGE>
<PAGE> 5
Annex B
Description of the Land
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;
thence westerly along the southerly side of 50th Street, 315 feet 0 inches
to the easterly side of Rockefeller Plaza;
D-A-5
<PAGE>
<PAGE> 6
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 the 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 an elevation at Point A of 65.87 feet, at
Point B of 63.47 feet 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 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:
D-A-6
<PAGE>
<PAGE> 7
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;
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.
D-A-7
<PAGE>
<PAGE> 8
PARCEL C (Block 1264 Lot 5)
ALL that certain lot, piece or parcel of land, situate, lying and being in
the Borough of Manhattan, City, State and County of New York, bounded and
described as follows:
BEGINNING at a point on the north side of West 48th Street distant 200 feet
westerly from the corner formed by the intersection of the north side of
West 48th Street with the west side of Fifth Avenue; running
thence Westerly along the north side of West 48th Street 720 feet to the
corner formed by the intersection of the north side of West 48th Street
with the east side of Avenue of the Americas, formerly named "Sixth
Avenue"; running
thence Northerly along the east side of Avenue of the Americas, 200 feet 10
inches to the corner formed by the intersection of the south side of West
49th Street with the east side of Avenue of the Americas; running
thence Easterly along the south side of West 49th Street 695 feet to a
point distant 225 feet westerly from the west side of Fifth Avenue;
thence Southerly parallel with Fifth Avenue and for part of the distance
through a party wall 100 feet 5 inches;
thence Easterly parallel with West 49th Street, 25 feet;
thence Southerly parallel with Fifth Avenue, 100 feet 5 inches to the north
side of West 48th Street at the place of Beginning.
PARCEL D (Block 1265 Lot 71)
ALL 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;
D-A-8
<PAGE>
<PAGE> 9
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 Forth-ninth Street, distance
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 distance 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 parallel with
49th Street 16 feet 6 inches; thence northerly parallel with Fifth Avenue
and part of the way through the center of a party wall, 100 feet to the
southerly side of 49th Street, and thence easterly along the southerly side
of 49th Street 16 feet 6 inches to the point or place of Beginning.
PARCEL E-3
BEGINNING at a point on the southerly side of 49th Street distance 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.
D-A-9
<PAGE>
<PAGE> 10
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of December, 1994, before personally came
Richard M. Scarlata, to me known, who, being by me duly sworn, did depose
and say that he resides at 2390 Palisade Avenue, Bronx, New York 10463;
that he is the president of ROCKEFELLER CENTER PROPERTIES, INC., the
corporation described in and which executed the foregoing instrument; and
that he signed his name thereto by order of the board of directors of said
corporation.
___________________________________
Notary Public
D-A-10
<PAGE>
<PAGE> 1
EXHIBIT B to Collateral Trust Agreement
[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
D-B-1
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EXHIBIT C to Collateral Trust Agreement
Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
December , 1994
Lawyers Title Insurance Corporation
708 Third Avenue
New York, New York 10017
Ladies and Gentlemen:
Please be advised that as of the date hereof the undersigned
has assigned all of its right, title and interest in and under the
following Mortgagee Title Policies to the Trustee (as defined herein)
pursuant and subject to that certain Collateral Trust Agreement (the "Trust
Agreement"), dated as of the date hereof, among the undersigned, _________
(the "Corporate Trustee") and _______________, (the "Individual Trustee",
and, together with the Corporate Trustee, the "Trustee"):
1. Title Policy No. 22215 issued by Lawyers Title
Insurance Corporation on September 19, 1985 in the
principal amount of $14,946,665.00.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:
Richard M. Scarlata
President
Receipt acknowledged:
LAWYERS TITLE INSURANCE CORPORATION
D-C-1
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By:________________________________
D-C-2
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Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
December __, 19__
Chicago Title Insurance Company
Ticor Title Guarantee Company
1211 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
Please be advised that as of the date hereof the undersigned
has assigned all of its right, title and interest in and under the
following Mortgagee Title Policies to the Trustee (as defined herein)
pursuant and subject to that certain Collateral Trust Agreement (the "Trust
Agreement"), dated as of the date hereof, among the undersigned, _________
(the "Corporate Trustee") and _______________, (the "Individual Trustee",
and, together with the Corporate Trustee, the "Trustee"):
1. Title Policy No. 41-85-01028 issued by Ticor Title
Guarantee Company on September 19, 1985 in the
principal amount of $14,946,665.00.
2. Title Policy No. 8501-00147 issued by Chicago Title
Insurance Company on September 19, 1985 in the
principal amount of $14,946,666.00.
Very truly yours,
ROCKEFELLER CENTER PROPERTIES, INC.
By:
Richard M. Scarlata
President
Receipt acknowledged:
Chicago Title Insurance Company
By:_________________________
Ticor Title Guarantee Company
D-C-3
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By:__________________________
D-C-4
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EXHIBIT D to Collateral Trust Agreement
[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________________________
D-D-1
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<PAGE> 1 EXHIBIT E to Collateral Trust Agreement
[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________________________
D-E-1
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EXHIBIT E
Form of Letter Agreements Relating to Title Insurance Policies
[See EXHIBIT E to Collateral Trust Agreement
attached hereto as Exhibit D]
E-1
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<PAGE> 1 EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 29, 1994,
by and among Rockefeller Center Properties, Inc., a Delaware corporation
(the "Company"), Goldman Sachs Mortgage Company, a New York limited
partnership ("GSMC") and Whitehall Street Real Estate Limited Partnership V
("Whitehall").
RECITALS
WHEREAS, the Company, the lenders party thereto (the "Lenders")
and GSMC, as Agent, have entered into a Loan Agreement (the "Loan
Agreement"), dated as of December 18, 1994, providing for the making of
certain loans by the Lenders (the "Loans") in the aggregate principal
amount of $150,000,000 to be evidenced by certain floating rate notes, due
2000 (the "Notes", which term shall include any security issued by the
Company pursuant to Section 5.09 of the Loan Agreement); and
WHEREAS, the Company and Whitehall have entered into a
Debenture Purchase Agreement (the "Debenture Purchase Agreement"), dated as
of December 18, 1994, providing for the issuance by the Company and the
purchase by Whitehall of Debentures (the "Debentures", which term shall
include any security issued by the Company pursuant to Section 5.09 of the
Debenture Purchase Agreement) in the aggregate principal amount of $75
million.
WHEREAS, this Agreement is being entered into as a condition to
the making of the Loans and the purchase of the Debentures of the Loan
Agreement and Debenture Purchase Agreement to facilitate the resale by GSMC
and Whitehall and their successors and assigns of the Notes and Debentures,
respectively;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements herein
contained, the parties hereto agree as follows:
1. Certain Definitions.
1.1. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Business Day" means any day that is not a day on which
banking institutions are authorized or required to be closed in the State
of New York or the State in which the principal corporate trust office of
any trustee under an Indenture is located.
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(b) "Collateral Trust Agreement" means the Collateral Trust
Agreement, dated as of December 29, 1994, from the Company to Bankers Trust
Company, as Corporate Trustee, and Gary Vaughan, as Individual Trustee.
(c) "Company" has the meaning specified in the first
paragraph to this agreement.
(d) "Company Securities" has the meaning specified in Section
2.1(g).
(e) "Cut Back Notice" has the meaning specified in Section
2.1(d).
(f) "Debenture Purchase Agreement" has the meaning specified
in the Recitals.
(g) "Debentures" has the meaning specified in the Recitals.
(h) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(i) "Holders" means the holders from time to time of the
Notes or Debentures.
(j) "Lender" has the meaning specified in the Recitals.
(k) "Loan Agreement" has the meaning specified in the
Recitals.
(l) "Loans" has the meaning specified in the Recitals.
(m) "Notes" has the meaning specified in the Recitals.
(n) "Piggy Back Registration Statement" has the meaning
specified in Section 2.2.
(o) "Piggyback Registration Rights" has the meaning specified
in Section 2.2.
(p) "Prospectus" means the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering made pursuant to
Section 2.1 or 2.2 of any of the Company's securities covered by such
Registration Statement and by all other amendments and supplements to such
prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus.
(q) "Registered Securities" has the meaning specified in
Section 3.1.
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(r) "Registration Demand" has the meaning specified in
Section 2.1.
(s) "Registration Statement" means any registration statement
of the Company pursuant to Section 2.1 or 2.2 filed under the Securities
Act that covers any of the Company's securities, including the Prospectus,
any amendments and supplements to such Registration Statement, including
post-effective amendments, and all exhibits and all materials incorporated
by reference in such registration statement.
(t) "Representative" has the meaning specified in Section
3.8.
(u) "SAR Agreement" means the SAR Agreement dated as of
December 18, 1994 between the Company and Chemical Bank, as agent.
(v) "SEC" means the Securities and Exchange Commission.
(w) "Securities Act" means the Securities Act of 1933, as
amended.
(x) "Shelf Registration" has the meaning specified in Section
2.1(c)(i).
(y) "Shelf Registration Statement" has the meaning specified
in Section 2.1(c)(i).
(z) "60 Day Effective Date" has the meaning specified in
Section 2.1(c)(i).
(aa) "Takedown" has the meaning specified in
Section 2.1(c)(ii).
(bb) "Warrant Agreement" means the Warrant Agreement dated as
of December 18, 1994 between the Company and Chemical Bank, as agent.
2. Registration Rights.
2.1. Demand Registration. (a) The Holders of (i) at least 5%
of the aggregate principal amount of Notes or Debentures, as the case may
be, then outstanding shall have the right to request in writing that the
Company effect a registration of such Holders' Notes or Debentures, as the
case may be, pursuant to the provisions of this Section 2.1 or (ii) at
least 1% of the aggregate principal amount of Notes or Debentures, as the
case may be, then outstanding shall have the right to request in writing
that the Company effect a registration of such Holders' Notes or
Debentures, as the case may be, pursuant to a Takedown under this Section
2.1 (each such request, a "Registration Demand"). A Registration Demand
shall specify the principal amount of Notes or Debentures that each such
Holder proposes to sell in the offering. If no Shelf Registration
Statement (as defined in Section
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2.1(c)(i) below) shall be effective as of the date of the Registration
Demand, the demanding Holders may elect to have the Company register such
Notes or Debentures in accordance with either Section 2.1(c)(i) or Section
2.1(d). If a Shelf Registration Statement shall be effective as of the
date of the Registration Demand, then all demanding Holders shall be deemed
to have elected to register their Notes or Debentures, as the case may be,
pursuant to Section 2.1(c)(ii). The Holders of Notes and the Holders of
Debentures may each make four Registration Demands pursuant to Sections
2.1(c)(i) and 2.1(d) and four Registration Demands per year pursuant to an
existing Shelf Registration Statement pursuant to Section 2.1(c)(ii) for
which the Company will pay and bear all costs and expenses in accordance
with Section 3.3 and thereafter the Holders may make an unlimited number of
Registration Demands for which such requesting Holders shall pay and bear
all costs and expenses.
(b) Upon receipt of a Registration Demand (other than for a
Takedown), the Company shall give written notice thereof to all of the
other Holders of Notes or Debentures, as the case may be, at least 30 days
prior to the initial filing of a Registration Statement relating to such
Registration Demand. Each of the other Holders of Notes or Debentures, as
the case may be, shall have the right, within 20 days after the delivery of
such notice, to request that the Company include all or a portion of such
Holder's Notes or Debentures, as the case may be, in such Registration
Statement. Upon receipt of a Registration Demand that is a Takedown, a
Representative of such selling holders shall give written notice thereof to
all of the Holders of Notes or Debentures, as the case may be, at least
three Business Days prior to the initial filing of a Registration Statement
relating to such Registration Demand. Each of the other such Holders shall
have the right, within one Business Day after the delivery of such notice,
to request that the Company include all or a portion of such Holder's Notes
or Debentures, as the case may be, in such Registration Statement.
(c) (i) As promptly as practicable and in no event later
than 60 days after the Company receives a Registration Demand electing to
register Notes or Debentures pursuant to this Section 2.2(c)(i), the
Company shall file under the Securities Act a "shelf" registration
statement (the "Shelf Registration Statement") providing for the
registration and the sale on a continuous or delayed basis of all of the
Notes or Debentures, as the case may be, pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the SEC (the
"Shelf Registration"). The Company agrees to use its best efforts to cause
the Shelf Registration Statement to become or be declared effective no
later than 60 calendar days after the filing (the "60 Day Effective Date")
and to keep such Shelf Registration continuously effective for a period
ending on the occurrence of the earlier of (x) the third anniversary of the
Registration Demand and (y) notification by all of the requesting Holders
that such Holders
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have sold all of the Notes or Debentures, as the case may be, owned by
them. The Company further agrees to supplement or make amendments to the
Shelf Registration Statement and the prospectus included therein (x) as may
be necessary to effect and maintain the effectiveness of such Shelf
Registration Statement for the period set forth in the previous sentence
and (y) as may be required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration or by the Securities Act or rules and regulations thereunder
for shelf registration. The Company agrees to furnish to the Holders of the
securities registered thereby copies of any such supplement or amendment
(but excluding any periodic reports required to be filed with the SEC under
the Exchange Act) so that such Holders through the Representative(s) have a
reasonable opportunity to comment thereon prior to its being used and/or
filed with the SEC.
(ii) As promptly as practicable after the Company receives a
Registration Demand from a Holder or Holders of Notes or Debentures
pursuant to which such Holder is deemed to have elected to register Notes
or Debentures pursuant to an existing Shelf Registration Statement (a
"Takedown"), the Company shall file a Prospectus or any necessary
supplement to a Prospectus with the SEC and otherwise comply with the
Securities Act and all rules, regulations and instructions thereunder
applicable to such Takedown. In the event that no Prospectus or other
filing is required nor any other action that necessitates the Company's
participation is required to effect a sale of Notes or Debentures, as the
case may be, pursuant to an effective Shelf Registration Statement, each
selling holder agrees to provide the Company with at least three Business
Days' notice of its intention to sell Notes or Debentures pursuant to the
Shelf Registration Statement; provided, however, that the Company shall
have the right to postpone any such sale for a reasonable period of time
not to exceed 90 days if: (i) in the opinion of counsel for the Company,
the Company would, in connection with such sale, be required to disclose in
such Registration Statement (or any prospectus supplement to be used in
connection therewith) information not otherwise then required by law to be
publicly disclosed and (ii) in the good faith judgment of the Board of
Directors of the Company, such disclosure would adversely affect any
material corporate development or business transaction contemplated by the
Company.
(d) As promptly as practicable and in no event later than
60 days after the Company receives a Registration Demand electing to
register Notes or Debentures pursuant to this Section 2.1(d), the Company
shall file with the SEC a Registration Statement, on any form that shall be
available and appropriate for the sale of such Notes or Debentures in
accordance with the intended method of distribution thereof. The Company
shall include in such Registration Statement all of the Notes or
Debentures, as the case may be, of such requesting Holders that such
Holders have requested to be included therein
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pursuant to Sections 2.1(a) and 2.1(b); provided, however, that, if the
requested registration involves an underwritten offering, the Notes or
Debentures, as the case may be, to be registered may be reduced if the
managing underwriter delivers a notice (a "Cutback Notice") pursuant to
Section 2.1(g).
The Company shall use its best efforts to cause each such
Registration Statement to be declared effective and to keep such
Registration Statement continuously effective and usable for resale of such
Notes or Debentures, as the case may be, for a period of 90 days from the
date on which the SEC declares such Registration Statement effective or
such shorter period as is necessary to complete the distribution of the
securities registered thereunder.
(e) The Representative(s) shall determine the method of
distribution of Notes or Debentures pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten
offering, Goldman, Sachs & Co. shall be the managing underwriter for such
offering unless Goldman, Sachs & Co. declines such engagement, in which
event, the Representative(s) shall select the managing underwriter;
provided that such managing underwriter so selected shall be reasonably
satisfactory to the Company.
(g) In the event that the proposed offering is an
underwritten offering and includes securities to be offered for the account
of the Company (the "Company Securities"), the provisions of this
Section 2.1(g) shall be applicable if the managing underwriter delivers a
Cutback Notice stating that, in its opinion, the principal amount of
Company Securities and the principal amount of Notes or Debentures, as the
case may be that the Holders have requested to be registered exceeds the
maximum principal amount of securities specified by the managing
underwriter in such Cutback Notice that may be distributed without
adversely affecting the price, timing or distribution of the securities
being distributed. If the managing underwriter delivers such Cutback
Notice, the number of Company Securities and Notes or Debentures, as the
case may be, requested to be registered shall be reduced in the following
order until the principal amount of securities to be registered has been
reduced to the maximum principal amount of securities specified by the
managing underwriter in the Cutback Notice: first, the Company Securities
and second, the Notes or Debentures, as the case may be, in proportion to
the respective principal amount of Notes or Debentures, as the case may be,
that each Holder has requested to be registered.
(h) No Registration Demand relating to Notes or Debentures
(other than a Takedown) may be made until the expiration of six months
following the completion of the distribution of the securities registered
under any Registration Statement that has been filed and
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has become effective pursuant to a prior Registration Demand relating to
Notes or Debentures, respectively.
(i) The Company shall not be obligated to file a Registration
Statement relating to any Registration Demand (other than a Takedown)
unless the requests by the Holders for such registration cover 5% or more
of aggregate principal amount of Notes or Debentures, as the case may be,
then outstanding.
2.2. Piggyback Registration Rights. (a) If the Company
proposes to file a Registration Statement with the SEC respecting an
offering, whether primary or secondary, of any debt securities of the
Company, the Company shall give written notice to all the Holders of Notes
and Debentures at least 30 days prior to the initial filing of the
Registration Statement relating to such offering. Each Holder shall have
the right, within 20 days after delivery of such notice, to request in
writing that the Company include all or a portion of such Holder's Notes or
Debentures in such Registration Statement ("Piggyback Registration
Rights").
(b) In the event that the proposed offering is an
underwritten offering covering debt securities to be offered for the
account of Company Securities, the provisions of this Section 2.2(b) shall
be applicable if the managing underwriter delivers a Cutback Notice stating
that, in its opinion, the aggregate principal amount of Company Securities
and the principal amount of Notes or Debentures that the Holders have
requested to be registered exceeds the maximum principal amount of
securities specified by the managing underwriter in such Cutback Notice
that may be distributed without adversely affecting the price, timing or
distribution of the securities being distributed. If the managing
underwriter delivers such Cutback Notice, the principal amount of Company
Securities, Notes and Debentures requested to be registered shall be
reduced in the following order until the principal amount of securities to
be offered has been reduced to the maximum principal amount of securities
specified by the managing underwriter in the Cutback Notice: first, the
Notes and Debentures in proportion to the respective principal amount of
Notes and Debentures that each Holder has requested to be registered and
second, the Company Securities.
(c) The provisions of this Section 2.2 shall not be
applicable in connection with (i) a registration statement filed by the
Company pursuant to Section 2.1 or (ii) a transaction in which a
registration statement is filed by the Company on Form S-4 or any successor
forms.
2.3. Company's Ability to Postpone Registration Rights.
(a) The Company shall have the right to postpone the filing of any
Registration Statement relating to a Demand Registration for a reasonable
period of time not to exceed 90 days if: (i) in the opinion of counsel for
the Company, the Company would be required to
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disclose in such Registration Statement information not otherwise then
required by law to be publicly disclosed and (ii) in the good faith
judgment of the Board of Directors of the Company, such disclosure would
adversely affect any material corporate development or business transaction
contemplated by the Company; provided, however, that such 90-day period
shall be deducted from the six-month interval allowed between Registration
Demands pursuant to Section 2.1(h).
(b) If at any time after the Company notifies the Holders of
its intention to file a Registration Statement that would trigger Piggyback
Registration Rights, the Board of Directors of the Company in good faith
shall determine for any reason not to effect such registration or to
postpone such registration, the Company shall (i) in the case of a
determination not to effect such registration, be relieved of its
obligation to register any Notes or Debentures of Holders requesting
inclusion in such registration, and (ii) in the case of a determination to
postpone such registration, be permitted to postpone registering the Notes
or Debentures of Holders requesting inclusion in such registration.
(c) The Company shall as promptly as practicable notify the
Holders of any postponement pursuant to this Section 2.3, specifying the
reasons therefor.
2.4. Holder Withdrawal Rights. The Company shall withdraw
from registration any Notes and Debentures on request of a Holder thereof;
provided that, in the case of a Registration Demand under Section 2.1, a
Demand Registration shall be deemed to have been made for the purpose of
the number of such Demands permitted to be made under Section 2.1(a) if the
Company shall have incurred $50,000 in expenses relating to such Demand
Registration at such time as such Holder makes such withdrawal. The
Company shall not be obligated to maintain the effectiveness of any
Registration Statement if, after any withdrawal of Notes and/or Debentures
by a Holder, the principal amount of Notes and Debentures remaining subject
to such Registration Statement is less than 5% of the aggregate principal
amount of Notes or Debentures, as the case may be, then outstanding, unless
(i) the Company is also registering securities on such Registration
Statement for its own account or (ii) if such Registration Statement
relates to securities other than for the account of the Company.
3. Registration Procedures.
3.1. Covenants of the Company Applicable to All Registration
Statements. This Section 3.1 applies to all Registration Statements filed
by the Company and referred to in Section 2.1 or 2.2. The securities
covered by each such Registration Statement are referred to as the
"Registered Securities". Each underwriter, agent, selling broker, dealer
manager or similar securities industry professional
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participating in any offering of the Registered Securities is referred to
as an "underwriter" or "agent" and any agreement entered into with an
underwriter or agent is referred to as an "underwriting or agency
agreement". In connection with each such registration, the Company
covenants with each Holder of Notes or Debentures participating in such
offering (each, a "selling holder") and each underwriter or agent
participating therein as follows:
(a) The Company will notify the selling holders and the
managing underwriter or agent, immediately, and confirm the notice in
writing, (i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the SEC,
(iii) of any request by the SEC to amend the Registration Statement
or amend or supplement the Prospectus or for additional information,
(iv) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Registered Securities for
offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes, (v) if at
any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registered Securities the
representations and warranties of the Company contemplated by
Section 3.1(i) cease to be true and correct and (vi) of the existence
of any fact that results or may result in the Registration Statement,
the Prospectus or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to state
a material fact required to be stated therein or necessary to make
any statement therein not misleading.
(b) The Company will use every reasonable effort to prevent
the issuance of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) The Company will afford the Representative(s) and the
managing underwriters a reasonable opportunity to comment prior to
its being filed with the SEC any Registration Statement, any
amendment thereto, or any amendment of or supplement to the
Prospectus (including amendments of the documents incorporated by
reference into the Prospectus but excluding any periodic reports
required to be filed with the SEC pursuant to the Exchange Act).
(d) The Company will furnish to each selling holder and to
the managing underwriter or agent, without charge, as many signed
copies of the Registration Statement (as originally filed) and of all
amendments thereto, whether filed before or after the Registration
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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 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 3.1(c), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
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(g) The Company will use its best efforts, in cooperation
with the selling holders or the underwriters or agents, as the case
may be, to qualify the Registered Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions as the selling holders or the managing underwriter or
agents, as the case may be, may designate; provided, however, that
the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Registered Securities
have been qualified as above provided.
(h) The Company will use its best efforts to effect the
listing of the Registered Securities covered by a Registration
Statement not then listed on each national securities exchange on
which similar securities issued by the Company are then listed or, if
no such securities are then listed, on any national securities
exchange if, in either case, so requested by (i) Whitehall with
respect to the Debentures for so long as it is a holder of Debentures
or (ii) GSMC with respect to the Notes for so long as it is a holder
of Notes, or if requested by the managing underwriter.
(i) The Company shall make such representations and
warranties to the selling holders and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten public offerings.
(j) On the effective date of the Registration Statement or,
in the case of an underwritten offering, on the date of delivery of
the Registered Securities sold pursuant thereto, the Company shall
cause to be delivered to the selling holders and the underwriters or
agents, if any, opinions of counsel for the Company with respect to,
among other things, the due incorporation and good standing of the
Company; the qualification of the Company to transact business as
foreign corporation; the due authorization, execution and delivery of
this Agreement; the due authorization, execution, authentication and
issuance, and the validity and enforceability, of the Notes or
Debentures, as the case may be; the absence of material legal or
governmental proceedings involving the Company; the absence of a
breach by the Company of, or a default under, agreements binding the
Company; the absence of governmental approvals required to be
obtained in connection with the registration, offering and sale of
the Notes or Debentures as the case may be; the compliance as to form
of the Registration Statement and any documents incorporated by
reference therein with the requirements of the Securities Act; the
effectiveness of such Registration Statement under the Securities
Act; the security interest created by the Collateral Trust Agreement
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<PAGE> 12
and a statement that, as of the date of the opinion and of the Registration
Statement or most recent post-effective amendment thereto, as the case may
be, nothing has come to the attention of such counsel which causes them to
believe that either the Registration Statement or the Prospectus included
therein, as then amended or supplemented, or the documents incorporate by
reference therein (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed with the
Commission under the Exchange Act), contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein not misleading (it being understood that such counsel
need express no opinion as to the financial statements and other financial
data included therein or omitted therefrom).
In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" of, or shall have a "conflict of
interest" with, the Company (each such term as defined in Schedule E
to the By-Laws of the National Association of Securities Dealers
("NASD")), and such broker-dealer shall underwrite debt securities of
the Company or participate as a member of an underwriting syndicate
or selling group or otherwise "assist in the distribution" (within
the meaning of the Rules of Fair Practice and the By-Laws of the
NASD) thereof, whether as a holder of such debt securities of the
Company or as an underwriter, a placement or sales agent or a broker
or dealer in respect of such debt securities or otherwise, the
Company shall assist such broker-dealer, in complying with the
requirements of such Rules and By-Laws, including, without
limitation, by (1) if such Rules or By-Laws, including Schedule E
thereto, shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule) to participate in the
preparation of the registration statement relating to such debt
securities to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by the
Registration Statement is an underwritten offering or is made through
a placement or sales agent, to recommend the maximum public offering
price of such debt securities, (2) paying the fees and expenses of
any such qualified independent underwriter and indemnifying the
qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 3.4 hereof, and
(3) providing to such broker-dealer such information concerning the
Company and its affiliates, officers, directors, employees and
securityholders as may be required in order for such broker-dealer to
comply with the requirements of Schedule E to the NASD Bylaws and
Section 44 of the Rules of Fair Practice.
(k) Immediately prior to the effectiveness of the
Registration Statement or, in the case of an underwritten offering,
at the time of delivery of any Registered Securities sold pursuant
thereto, the Company shall cause to be delivered to the selling
holders and the
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<PAGE> 13
underwriters or agents, if any, letters from the Company's independent
public accountants stating that such accountants are independent public
accountants with respect to the Company within the meaning of the
Securities Act and the applicable published rules and regulations of the
SEC thereunder, and otherwise in customary form and covering such financial
and accounting matters as are customarily covered by letters of the
independent public accountants delivered in connection with primary
underwritten public offerings.
(l) If the managing underwriter or agent so requests, the
underwriting or agency agreement shall set forth in full the
provisions hereof relating to covenants, registration expenses,
lock-up agreements, indemnification and contribution contained in
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.8 and 3.9, with such changes
therein as may be agreed to by the managing underwriter or agent, the
Company and the selling holders.
(m) The Company shall deliver such documents and certificates
as may be requested by any selling holder or the underwriters or
agents, if any, to evidence compliance with Section 3.1(i) and with
any customary conditions contained in the underwriting or agency
agreement, if any.
(n) The Company will make available for inspection by
representatives of the selling holders and the underwriters or agents
participating in such offering, any attorney or accountant retained
by such selling holders or underwriters or agents and, with respect
to any private placement of Notes or Debentures, as the case may be,
upon notice to the Company, prospective purchasers, all financial and
other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such
representative, underwriter or agent, attorney or accountant in
connection with the preparation of the Registration Statement;
provided, however, that any records, information or documents that
are designated by the Company in writing as confidential shall be
kept confidential by each such person (by, among other things, if so
requested by the Company, entering into a confidentiality agreement
in form and substance satisfactory to the Company) unless such
records, information or documents become part of the public domain
through no fault of such person or unless disclosure thereof is
required by court or administrative order or the SEC (including the
federal securities law).
(o) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby (or 90 days if such period is a
fiscal year), an earnings statement of the Company (in form complying
with the provisions of Rule 158 under the rules and regulations of
the SEC under the Securities Act), covering a period of 12 months
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<PAGE> 14
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 Notes or Debentures, as the case may be (an
"Indenture"), under the Trust Indenture Act of 1939. In the event
that any modification or amendment to such Indenture is required by
such Act or the rules and regulations thereunder or by the staff of
the SEC in order so to qualify the Indenture, the Company shall
without delay solicit consents of holders (as defined in such
Indenture) in the manner and with the effect provided by such
Indenture, pursuant to which such holders shall be asked to consent
to such modifications or amendments, but only such modifications or
amendments, as shall be so required. In connection with any such
solicitation, the Company shall recommend that Holders of Notes or
Debentures, as the case may be, consent to such modifications or
amendments. Notwithstanding the foregoing, in the event that such
modifications or amendments may be effected without the consent of
such Holders pursuant to the applicable provisions of the Indenture,
the Company shall use its best efforts to effect such modifications
or amendments without such consent.
(ii) In the event that any such amendment or
modification involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
3.2. Covenants of the Selling Holders. (a) Each selling
holder shall use its best efforts to furnish to the Company such
information regarding the distribution of such Registered Securities as is
customarily requested from selling holders in underwritten public
offerings.
(b) Each selling holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described
in Section 3.1(a)(vi), such selling holder will forthwith discontinue the
disposition of its Registered Securities pursuant to the Registration
Statement until such selling holder's receipt of the copies of a
supplemented or amended Prospectus contemplated by Section 3.1(f), or until
it is advised in writing by the Company that the use of such Prospectus may
be resumed. If the Company shall give
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<PAGE> 15
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 3.1(f) or is
advised in writing by the Company that the use of such Prospectus may be
resumed.
(c) Each selling holder agrees to make customary
representations and warranties to the Company and the underwriters or
agents, if any, in form, substance and scope as are customarily made by
selling holders in underwritten public offerings, but no selling holders,
as such, shall be required to make any representation or warranty as to the
accuracy or completeness of the Registration Statement (except as to
written information furnished to the Company by such selling holder
expressly for use therein).
(d) Each selling holder agrees to provide the Company, upon
receipt of its request, with such information about the selling holder to
enable the Company to comply with the requirements of the Securities Act
and to execute such certificates as the Company may reasonably request in
connection with such information and otherwise to satisfy any requirements
of law.
3.3. Registration Expenses. (a) The Company will pay and
bear all costs and expenses incident to the performance of its obligations
under this Agreement with respect to each registration pursuant to
Section 2.1 or 2.2, including, without limitation:
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectuses and the
Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the selling holders or the underwriters
or agents, as the case may be;
(ii) the preparation, printing and distribution of any
underwriting or agency agreement, certificates representing the
Registered Securities, any Blue Sky Survey and other documents
relating to the performance of and compliance with this Agreement;
(iii) the fees and disbursements of the Company's counsel and
accountants and the reasonable fees and disbursements of one counsel
retained by the selling holders pursuant to Section 3.3(b);
(iv) the fees and disbursements of the underwriters or agents
customarily paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained in
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<PAGE> 16
connection with the Registration Statement, but excluding underwriting
discounts and commissions and transfer taxes, if any;
(v) the qualification of the Registered Securities under
applicable securities laws in accordance with Section 3.1(g) and any
filing for review of the offering with the NASD, including filing
fees and fees and disbursements of counsel for the selling holders
and the underwriters or agents, as the case may be, in connection
therewith, in connection with any Blue Sky Survey; and
(vi) all fees and expenses incurred in connection with the
listing, if any, of any of the Registered Securities on any
securities exchange pursuant to Section 3.1(h).
(b) In connection with the filing of each Registration
Statement, the Company will reimburse the selling holders for the
reasonable fees and disbursements of one firm of legal counsel, which shall
be chosen by the Representative(s) and shall be reasonably satisfactory to
the Company.
(c) Each selling holder will pay and bear all costs and
expenses incident to the delivery of the Registered Securities to be sold
by it, including any transfer taxes payable upon the sale of such
Registered Securities to the purchaser thereof and any underwriting
discounts or commissions payable to underwriters or agents in connection
therewith.
3.4. Indemnification. (a) In connection with each
registration pursuant to Section 2.1 or 2.2, the Company agrees to
indemnify and hold harmless each selling holder, each underwriter or agent
participating in such offering, and each person, if any, who controls any
selling holder or any such underwriter or agent within the meaning of
Section 15 of the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of an untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of
a material fact necessary 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
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<PAGE> 17
proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company, which shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by the selling
holders and by the underwriters or agents), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that, with respect to any selling holder or any
underwriter or agent, this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement
or omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information furnished to the Company by any
such selling holder or underwriter or agent, respectively, expressly for
use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each selling holder agrees severally, and not jointly, to
indemnify and hold harmless the Company, its directors, each of its
officers who signed a Registration Statement, each underwriter or agent
participating in such offering and the other selling holders, and each
person, if any, who controls the Company, any such underwriter or agent and
any other selling holder within the meaning of Section 15 of the Securities
Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 3.4(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such selling holder
expressly for use in the Registration Statement (or any amendment thereto),
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) The obligations of the Company under Section 3.4(a) and
of the selling holders under Section 3.4(b) to indemnify any underwriter or
agent who participates in an offering (or any person, if any, controlling
such underwriter or agent within the meaning of Section 15 of the
Securities Act) shall be conditioned upon the underwriting or agency
agreement with such underwriter or agent containing an
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<PAGE> 18
agreement by such underwriter or agent to indemnify and hold harmless the
Company, its directors, each of its officers who signed a Registration
Statement, and each selling holder, and each person, if any, who controls
the Company or any such selling holder within the meaning of Section 15 of
the Securities Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 3.4(a), as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such underwriter or
agent expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(d) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve the indemnifying party from any liability it may
have under this Agreement, except to the extent that the indemnifying party
is materially prejudiced thereby. If it so elects, after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel
chosen by it, provided that the indemnified party shall be entitled to
participate in the defense of such action with counsel chosen by it, the
fees and expenses of which, subject to the next sentence, shall be paid by
the indemnifying party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel for
(i) the Company, its officer, directors and controlling persons as a group,
(ii) the selling holders and their controlling persons as a group and (iii)
the underwriters or agents and their controlling persons as a group, in
each case, in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
3.5. Contribution. (a) In order to provide for just and
equitable contribution in circumstances under which the indemnity provided
for in this Section 3 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, the selling holders and the underwriters or agents shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity incurred by the
Company, the selling holders and one or more of the underwriters or agents,
as incurred, in such proportions that (i) the underwriters or agents are
responsible for that portion represented by the percentage that the
underwriting discounts and commissions for the offering appearing on the
cover page of the Prospectus (or, if not set forth on the cover page, that
are
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<PAGE> 19
applicable to the offering) bear to the initial public offering price
appearing on the cover page (or, if not set forth on the cover page, that
are applicable to the offering) and (ii) each of the selling holders and
the Company is responsible for an equal portion of the balance.
(b) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 3.5, each person, if any,
who controls an underwriter or agent within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as such
underwriter or agent, and each director of the Company, each officer of the
Company who signed a Registration Statement, and each person, if any, who
controls the Company or a selling holder within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the
Company or such selling holder, as the case may be.
3.6. Representations, Warranties and Indemnities to Survive.
The indemnity and contribution agreements contained in this Section 3 and
the representations and warranties of the Company referred to in
Section 3.1(i) shall remain operative and in full force and effect
regardless of (i) any termination of any underwriting or agency agreement,
(ii) any investigation made by or on behalf of the selling holders, the
Company or any underwriter or agent or controlling person or (iii) the
consummation of the sale or successive resales of the Registered
Securities.
3.7. Rule 144. The Company covenants that it will continue to
file the reports required to be filed by it under the Securities Act and
the rules and regulations of the SEC thereunder and the Exchange Act and
the rules and regulations of the SEC thereunder and it will take such
further action as any Holder of Debentures or Notes may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Notes or Debentures, as the case may be, without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time.
Upon the request of any Holder of Notes or Debentures, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
3.8. Participation in Underwritten Offerings. No Holder of
Notes or Debentures may participate in any underwritten offering hereunder
unless:
(a) Such Holder executes a power of attorney appointing one
or more (up to three) attorneys (each, a "Representative") designated
by the selling holders proposing to sell a majority of the Notes or
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<PAGE> 20
Debentures, as the case may be, proposed to be sold by all selling holders.
Each such Representative shall be authorized, on customary terms, to
execute the underwriting agreement on behalf of each selling holder and to
otherwise act for the selling holders in connection with the offering.
(b) Such Holder directly through its Representative enters
into an underwriting agreement with the Company, the other selling
holders, any selling securityholders and the underwriters, which
underwriting agreement shall comply with the provisions of this
Section 3.
(c) Such Holder executes all questionnaires and other
documents required by the underwriting agreement to be executed by
such Holder.
3.9. Lock-Up Agreements. (a) The Company agrees that it will
not, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any debt securities of the Company, in
the case of any registration pursuant to Section 2.1, for a period of 90
days from the effective date of any Registration Statement.
(b) Each Holder whose Notes and/or Debentures are covered by
a Registration Statement filed pursuant to Section 2.1 or 2.2 agrees that
it will not, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any debt securities of the
Company (except such Notes and/or Debentures covered by such Registration
Statement) for a period of 90 days from the effective date of any
Registration Statement.
(c) The lock-up agreements set forth in Sections 3.9(a) and
3.9(b) shall be subject to customary exceptions that may be contained in an
underwriting agreement if any such registration involves an underwritten
offering.
4. Miscellaneous.
4.1. No Inconsistent Agreements. The Company covenants and
agrees that it shall not grant registration rights with respect to
Registrable Securities or any other securities which would be inconsistent
with the terms contained in this Agreement. The Company is not currently a
party to any agreement with respect to any of its equity or debt securities
granting any registration rights to any person, other than the Warrant
Agreement and the Stock Appreciation Rights Agreement.
4.2. Specific Performance. The parties hereto acknowledge
that there may be no adequate remedy at law if any party fails to perform
any of its obligations hereunder and that each party may be irreparably
harmed by any such failure, and accordingly agree that
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<PAGE> 21
each party, in addition to any other remedy to which it may be entitled at
law or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the
terms and conditions of this Agreement, in any court of the United States
or any State thereof having jurisdiction.
4.3. Notices. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be deemed
to have been duly given when delivered by hand, if delivered personally or
by courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 1270 Avenue of the Americas, New York, New York
10020, Attention: Secretary; if to GSMC, to it at 85 Broad Street, New
York, New York 10004; if to Whitehall, to it at 85 Broad Street, New York,
New York 10004; and if to a Holder, to the address of such Holder set forth
in the security register or other records of the Company, or to such other
address as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
4.4. Parties in Interest. All the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any holder of Notes or
Debentures shall acquire Notes or Debentures, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a party
hereto for all purposes and such Notes or Debentures shall be held subject
to all of the terms of this Agreement, and by taking and holding such Notes
or Debentures such transferee shall be entitled to receive the benefits of
and be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement. If the Company shall so
request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Notes or Debentures subject to all of the terms
hereof.
4.5. Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any holder of Notes or Debentures, any director,
officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of
the foregoing, and shall survive delivery of and payment for the Notes and
Debentures pursuant to the Loan Agreement and Debenture Purchase Agreement
and the transfer and registration of Notes or Debentures by such holder.
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<PAGE> 22
4.6. LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4.7. Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for convenience
only, do not constitute a part of this Agreement and shall not affect in
any way the meaning or interpretation of this Agreement.
4.8. Amendments. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the holders of at
least 75 percent in aggregate principal amount of the Notes or Debentures,
as the case may be, at the time outstanding. Each holder of any Notes or
Debentures, as the case may be, at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 4.8,
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Notes or Debentures, as the case may be, or is
delivered to such holder.
4.9. Inspection. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and addresses of
all the holders of Notes and Debentures shall be made available for
inspection and copying on any business day, on reasonable notice, by any
holder of Notes or Debentures, as the case may be, at the offices of the
Company at the address thereof set forth in Section 4.3.
4.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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<PAGE> 23
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first written above.
ROCKEFELLER CENTER PROPERTIES, INC.
By:
Richard M. Scarlata
President
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate Funding
Corp., General Partner
By:
Steven T. Mnuchin
President
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General Partner
By: WH Advisors, Inc. V, General
Partner
By:
Ralph F. Rosenberg
Vice-President
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<PAGE> 1
EX. 4.5
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 29, 1994,
by and among Rockefeller Center Properties, Inc., a Delaware corporation
(the "Company"), Goldman Sachs Mortgage Company, a New York limited
partnership ("GSMC") and Whitehall Street Real Estate Limited Partnership V
("Whitehall").
RECITALS
WHEREAS, the Company, the lenders party thereto (the "Lenders")
and GSMC, as Agent, have entered into a Loan Agreement (the "Loan
Agreement"), dated as of December 18, 1994, providing for the making of
certain loans by the Lenders (the "Loans") in the aggregate principal
amount of $150,000,000 to be evidenced by certain floating rate notes, due
2000 (the "Notes", which term shall include any security issued by the
Company pursuant to Section 5.09 of the Loan Agreement); and
WHEREAS, the Company and Whitehall have entered into a
Debenture Purchase Agreement (the "Debenture Purchase Agreement"), dated as
of December 18, 1994, providing for the issuance by the Company and the
purchase by Whitehall of Debentures (the "Debentures", which term shall
include any security issued by the Company pursuant to Section 5.09 of the
Debenture Purchase Agreement) in the aggregate principal amount of $75
million.
WHEREAS, this Agreement is being entered into as a condition to
the making of the Loans and the purchase of the Debentures of the Loan
Agreement and Debenture Purchase Agreement to facilitate the resale by GSMC
and Whitehall and their successors and assigns of the Notes and Debentures,
respectively;
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements herein
contained, the parties hereto agree as follows:
1. Certain Definitions.
1.1. As used in this Agreement, the following terms shall
have the following respective meanings:
(a) "Business Day" means any day that is not a day on which banking
institutions are authorized or required to be closed in the State of New
York or the State in which the principal corporate trust office of any
trustee under an Indenture is located.
<PAGE>
<PAGE> 2
(b) "Collateral Trust Agreement" means the Collateral Trust
Agreement, dated as of December 29, 1994, from the Company to Bankers Trust
Company, as Corporate Trustee, and Gary Vaughan, as Individual Trustee.
(c) "Company" has the meaning specified in the first paragraph to
this agreement.
(d) "Company Securities" has the meaning specified in Section
2.1(g).
(e) "Cut Back Notice" has the meaning specified in Section 2.1(d).
(f) "Debenture Purchase Agreement" has the meaning specified in the
Recitals.
(g) "Debentures" has the meaning specified in the Recitals.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Holders" means the holders from time to time of the Notes or
Debentures.
(j) "Lender" has the meaning specified in the Recitals.
(k) "Loan Agreement" has the meaning specified in the Recitals.
(l) "Loans" has the meaning specified in the Recitals.
(m) "Notes" has the meaning specified in the Recitals.
(n) "Piggy Back Registration Statement" has the meaning specified
in Section 2.2.
(o) "Piggyback Registration Rights" has the meaning specified in
Section 2.2.
(p) "Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering made pursuant to Section 2.1 or 2.2 of
any of the Company's securities covered by such Registration Statement and
by all other amendments and supplements to such prospectus, including post-
effective amendments and all material incorporated by reference in such
prospectus.
(q) "Registered Securities" has the meaning specified in Section
3.1.
(r) "Registration Demand" has the meaning specified in Section 2.1.
(s) "Registration Statement" means any registration statement of
the Company pursuant to Section 2.1 or 2.2 filed under the Securities Act
that covers any of the Company's securities, including the Prospectus, any
amendments and supplements to such Registration <PAGE>
<PAGE> 3
Statement, including post-effective amendments, and all exhibits and all
materials incorporated by reference in such registration statement.
(t) "Representative" has the meaning specified in Section 3.8.
(u) "SAR Agreement" means the SAR Agreement dated as of
December 18, 1994 between the Company and Chemical Bank, as agent.
(v) "SEC" means the Securities and Exchange Commission.
(w) "Securities Act" means the Securities Act of 1933, as amended.
(x) "Shelf Registration" has the meaning specified in Section
2.1(c)(i).
(y) "Shelf Registration Statement" has the meaning specified in
Section 2.1(c)(i).
(z) "60 Day Effective Date" has the meaning specified in Section
2.1(c)(i).
(aa) "Takedown" has the meaning specified in Section 2.1(c)(ii).
(bb) "Warrant Agreement" means the Warrant Agreement dated as of
December 18, 1994 between the Company and Chemical Bank, as agent.
2. Registration Rights.
2.1. Demand Registration. (a) The Holders of (i) at least 5%
of the aggregate principal amount of Notes or Debentures, as the case may
be, then outstanding shall have the right to request in writing that the
Company effect a registration of such Holders' Notes or Debentures, as the
case may be, pursuant to the provisions of this Section 2.1 or (ii) at
least 1% of the aggregate principal amount of Notes or Debentures, as the
case may be, then outstanding shall have the right to request in writing
that the Company effect a registration of such Holders' Notes or
Debentures, as the case may be, pursuant to a Takedown under this Section
2.1 (each such request, a "Registration Demand"). A Registration Demand
shall specify the principal amount of Notes or Debentures that each such
Holder proposes to sell in the offering. If no Shelf Registration
Statement (as defined in Section 2.1(c)(i) below) shall be effective as of
the date of the Registration Demand, the demanding Holders may elect to
have the Company register such Notes or Debentures in accordance with
either Section 2.1(c)(i) or Section 2.1(d). If a Shelf Registration
Statement shall be effective as of the date of the Registration Demand,
then all demanding Holders shall be deemed to have elected to register
their Notes or Debentures, as the case may be, pursuant to Section
2.1(c)(ii). The Holders of Notes and the Holders of Debentures may each
make four Registration Demands pursuant to Sections 2.1(c)(i) and 2.1(d)
and four Registration Demands per year pursuant to an existing Shelf
Registration Statement pursuant to Section 2.1(c)(ii) for which the Company
will pay and bear all costs and expenses in accordance with Section 3.3 and
thereafter the Holders may make an unlimited number of
<PAGE>
<PAGE> 4
Registration Demands for which such requesting Holders shall pay and bear
all costs and expenses.
(b) Upon receipt of a Registration Demand (other than for a
Takedown), the Company shall give written notice thereof to all of the
other Holders of Notes or Debentures, as the case may be, at least 30 days
prior to the initial filing of a Registration Statement relating to such
Registration Demand. Each of the other Holders of Notes or Debentures, as
the case may be, shall have the right, within 20 days after the delivery of
such notice, to request that the Company include all or a portion of such
Holder's Notes or Debentures, as the case may be, in such Registration
Statement. Upon receipt of a Registration Demand that is a Takedown, a
Representative of such selling holders shall give written notice thereof
to all of the Holders of Notes or Debentures, as the case may be, at least
three Business Days prior to the initial filing of a Registration Statement
relating to such Registration Demand. Each of the other such Holders shall
have the right, within one Business Day after the delivery of such notice,
to request that the Company include all or a portion of such Holder's Notes
or Debentures, as the case may be, in such Registration Statement.
(c) (i) As promptly as practicable and in no event later
than 60 days after the Company receives a Registration Demand electing to
register Notes or Debentures pursuant to this Section 2.2(c)(i), the
Company shall file under the Securities Act a "shelf" registration
statement (the "Shelf Registration Statement") providing for the
registration and the sale on a continuous or delayed basis of all of the
Notes or Debentures, as the case may be, pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the SEC (the
"Shelf Registration"). The Company agrees to use its best efforts to cause
the Shelf Registration Statement to become or be declared effective no
later than 60 calendar days after the filing (the "60 Day Effective Date")
and to keep such Shelf Registration continuously effective for a period
ending on the occurrence of the earlier of (x) the third anniversary of the
Registration Demand and (y) notification by all of the requesting Holders
that such Holders have sold all of the Notes or Debentures, as the case may
be, owned by them. The Company further agrees to supplement or make
amendments to the Shelf Registration Statement and the prospectus included
therein (x) as may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period set forth in the previous
sentence and (y) as may be required by the rules, regulations or
instructions applicable to the registration form used by the Company for
such Shelf Registration or by the Securities Act or rules and regulations
thereunder for shelf registration. The Company agrees to furnish to the
Holders of the securities registered thereby copies of any such supplement
or amendment (but excluding any periodic reports required to be filed with
the SEC under the Exchange Act) so that such Holders through the
Representative(s) have a reasonable opportunity to comment thereon prior to
its being used and/or filed with the SEC.
(ii) As promptly as practicable after the Company receives a
Registration Demand from a Holder or Holders of Notes or Debentures
pursuant to which such Holder is deemed to have elected to register Notes
or Debentures pursuant to an existing Shelf Registration Statement (a
"Takedown"), the Company shall file a Prospectus or any necessary
supplement
<PAGE>
<PAGE> 5
to a Prospectus with the SEC and otherwise comply with the
Securities Act and all rules, regulations and instructions thereunder
applicable to such Takedown. In the event that no Prospectus or other
filing is required nor any other action that necessitates the Company's
participation is required to effect a sale of Notes or Debentures, as the
case may be, pursuant to an effective Shelf Registration Statement, each
selling holder agrees to provide the Company with at least three Business
Days' notice of its intention to sell Notes or Debentures pursuant to the
Shelf Registration Statement; provided, however, that the Company shall
have the right to postpone any such sale for a reasonable period of time
not to exceed 90 days if: (i) in the opinion of counsel for the Company,
the Company would, in connection with such sale, be required to disclose
in such Registration Statement (or any prospectus supplement to be used
in connection therewith) information not otherwise then required by law
to be publicly disclosed and (ii) in the good faith judgment of the
Board of Directors of the Company, such disclosure would adversely affect
any material corporate development or business transaction contemplated by
the Company.
(d) As promptly as practicable and in no event later than
60 days after the Company receives a Registration Demand electing to
register Notes or Debentures pursuant to this Section 2.1(d), the Company
shall file with the SEC a Registration Statement, on any form that shall be
available and appropriate for the sale of such Notes or Debentures in
accordance with the intended method of distribution thereof. The Company
shall include in such Registration Statement all of the Notes or
Debentures, as the case may be, of such requesting Holders that such
Holders have requested to be included therein pursuant to Sections 2.1(a)
and 2.1(b); provided, however, that, if the requested registration involves
an underwritten offering, the Notes or Debentures, as the case may be, to
be registered may be reduced if the managing underwriter delivers a notice
(a "Cutback Notice") pursuant to Section 2.1(g).
The Company shall use its best efforts to cause each such
Registration Statement to be declared effective and to keep such
Registration Statement continuously effective and usable for resale of such
Notes or Debentures, as the case may be, for a period of 90 days from the
date on which the SEC declares such Registration Statement effective or
such shorter period as is necessary to complete the distribution of the
securities registered thereunder.
(e) The Representative(s) shall determine the method of
distribution of Notes or Debentures pursuant to a Registration Demand.
(f) If a Registration Demand involves an underwritten
offering, Goldman, Sachs & Co. shall be the managing underwriter for such
offering unless Goldman, Sachs & Co. declines such engagement, in which
event, the Representative(s) shall select the managing underwriter;
provided that such managing underwriter so selected shall be reasonably
satisfactory to the Company.
(g) In the event that the proposed offering is an
underwritten offering and includes securities to be offered for the account
of the Company (the "Company Securities"), the provisions of this
Section 2.1(g) shall be applicable if the managing underwriter delivers a
<PAGE>
<PAGE> 6
Cutback Notice stating that, in its opinion, the principal amount of
Company Securities and the principal amount of Notes or Debentures, as the
case may be that the Holders have requested to be registered exceeds the
maximum principal amount of securities specified by the managing
underwriter in such Cutback Notice that may be distributed without
adversely affecting the price, timing or distribution of the securities
being distributed. If the managing underwriter delivers such Cutback
Notice, the number of Company Securities and Notes or Debentures, as the
case may be, requested to be registered shall be reduced in the following
order until the principal amount of securities to be registered has been
reduced to the maximum principal amount of securities specified by the
managing underwriter in the Cutback Notice: first, the Company Securities
and second, the Notes or Debentures, as the case may be, in proportion to
the respective principal amount of Notes or Debentures, as the case may be,
that each Holder has requested to be registered.
(h) No Registration Demand relating to Notes or Debentures
(other than a Takedown) may be made until the expiration of six months
following the completion of the distribution of the securities registered
under any Registration Statement that has been filed and has become
effective pursuant to a prior Registration Demand relating to Notes or
Debentures, respectively.
(i) The Company shall not be obligated to file a Registration
Statement relating to any Registration Demand (other than a Takedown)
unless the requests by the Holders for such registration cover 5% or more
of aggregate principal amount of Notes or Debentures, as the case may be,
then outstanding.
2.2. Piggyback Registration Rights. (a) If the Company
proposes to file a Registration Statement with the SEC respecting an
offering, whether primary or secondary, of any debt securities of the
Company, the Company shall give written notice to all the Holders of Notes
and Debentures at least 30 days prior to the initial filing of the
Registration Statement relating to such offering. Each Holder shall have
the right, within 20 days after delivery of such notice, to request in
writing that the Company include all or a portion of such Holder's Notes or
Debentures in such Registration Statement ("Piggyback Registration
Rights").
(b) In the event that the proposed offering is an
underwritten offering covering debt securities to be offered for the
account of Company Securities, the provisions of this Section 2.2(b) shall
be applicable if the managing underwriter delivers a Cutback Notice stating
that, in its opinion, the aggregate principal amount of Company Securities
and the principal amount of Notes or Debentures that the Holders have
requested to be registered exceeds the maximum principal amount of
securities specified by the managing underwriter in such Cutback Notice
that may be distributed without adversely affecting the price, timing or
distribution of the securities being distributed. If the managing
underwriter delivers such Cutback Notice, the principal amount of Company
Securities, Notes and Debentures requested to be registered shall be
reduced in the following order until the principal amount of securities to
be offered has been reduced to the maximum principal amount of securities
specified by the managing underwriter in the Cutback Notice: first, the
Notes and Debentures in proportion to the respective principal
<PAGE>
<PAGE> 7
amount of Notes and Debentures that each Holder has requested to be
registered and second, the Company Securities.
(c) The provisions of this Section 2.2 shall not be
applicable in connection with (i) a registration statement filed by the
Company pursuant to Section 2.1 or (ii) a transaction in which a
registration statement is filed by the Company on Form S-4 or any successor
forms.
2.3. Company's Ability to Postpone Registration Rights.
(a) The Company shall have the right to postpone the filing of any
Registration Statement relating to a Demand Registration for a reasonable
period of time not to exceed 90 days if: (i) in the opinion of counsel for
the Company, the Company would be required to disclose in such Registration
Statement information not otherwise then required by law to be publicly
disclosed and (ii) in the good faith judgment of the Board of Directors of
the Company, such disclosure would adversely affect any material corporate
development or business transaction contemplated by the Company; provided,
however, that such 90-day period shall be deducted from the six-month
interval allowed between Registration Demands pursuant to Section 2.1(h).
(b) If at any time after the Company notifies the Holders of
its intention to file a Registration Statement that would trigger Piggyback
Registration Rights, the Board of Directors of the Company in good faith
shall determine for any reason not to effect such registration or to
postpone such registration, the Company shall (i) in the case of a
determination not to effect such registration, be relieved of its
obligation to register any Notes or Debentures of Holders requesting
inclusion in such registration, and (ii) in the case of a determination to
postpone such registration, be permitted to postpone registering the Notes
or Debentures of Holders requesting inclusion in such registration.
(c) The Company shall as promptly as practicable notify the
Holders of any postponement pursuant to this Section 2.3, specifying the
reasons therefor.
2.4. Holder Withdrawal Rights. The Company shall withdraw
from registration any Notes and Debentures on request of a Holder thereof;
provided that, in the case of a Registration Demand under Section 2.1, a
Demand Registration shall be deemed to have been made for the purpose of
the number of such Demands permitted to be made under Section 2.1(a) if the
Company shall have incurred $50,000 in expenses relating to such Demand
Registration at such time as such Holder makes such withdrawal. The
Company shall not be obligated to maintain the effectiveness of any
Registration Statement if, after any withdrawal of Notes and/or Debentures
by a Holder, the principal amount of Notes and Debentures remaining subject
to such Registration Statement is less than 5% of the aggregate principal
amount of Notes or Debentures, as the case may be, then outstanding, unless
(i) the Company is also registering securities on such Registration
Statement for its own account or (ii) if such Registration Statement
relates to securities other than for the account of the Company.
<PAGE>
<PAGE> 8
3. Registration Procedures.
3.1. Covenants of the Company Applicable to All Registration
Statements. This Section 3.1 applies to all Registration Statements filed
by the Company and referred to in Section 2.1 or 2.2. The securities
covered by each such Registration Statement are referred to as the
"Registered Securities". Each underwriter, agent, selling broker, dealer
manager or similar securities industry professional participating in any
offering of the Registered Securities is referred to as an "underwriter" or
"agent" and any agreement entered into with an underwriter or agent is
referred to as an "underwriting or agency agreement". In connection with
each such registration, the Company covenants with each Holder of Notes or
Debentures participating in such offering (each, a "selling holder") and
each underwriter or agent participating therein as follows:
(a) The Company will notify the selling holders and the
managing underwriter or agent, immediately, and confirm the notice in
writing, (i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the SEC,
(iii) of any request by the SEC to amend the Registration Statement
or amend or supplement the Prospectus or for additional information,
(iv) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of
the suspension of the qualification of the Registered Securities for
offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes, (v) if at
any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registered Securities the
representations and warranties of the Company contemplated by
Section 3.1(i) cease to be true and correct and (vi) of the existence
of any fact that results or may result in the Registration Statement,
the Prospectus or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to state
a material fact required to be stated therein or necessary to make
any statement therein not misleading.
(b) The Company will use every reasonable effort to prevent
the issuance of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus and, if any such order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) The Company will afford the Representative(s) and the
managing underwriters a reasonable opportunity to comment prior to
its being filed with the SEC any Registration Statement, any
amendment thereto, or any amendment of or supplement to the
Prospectus (including amendments of the documents incorporated by
reference into the Prospectus but excluding any periodic reports
required to be filed with the SEC pursuant to the Exchange Act).
<PAGE>
<PAGE> 9
(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 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 3.1(c), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
(g) The Company will use its best efforts, in cooperation
with the selling holders or the underwriters or agents, as the case
may be, to qualify the Registered
<PAGE>
<PAGE> 10
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as the selling holders or the
managing underwriter or agents, as the case may be, may designate;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Registered
Securities have been qualified as above provided.
(h) The Company will use its best efforts to effect the
listing of the Registered Securities covered by a Registration
Statement not then listed on each national securities exchange on
which similar securities issued by the Company are then listed or, if
no such securities are then listed, on any national securities
exchange if, in either case, so requested by (i) Whitehall with
respect to the Debentures for so long as it is a holder of Debentures
or (ii) GSMC with respect to the Notes for so long as it is a holder
of Notes, or if requested by the managing underwriter.
(i) The Company shall make such representations and
warranties to the selling holders and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten public offerings.
(j) On the effective date of the Registration Statement or,
in the case of an underwritten offering, on the date of delivery of
the Registered Securities sold pursuant thereto, the Company shall
cause to be delivered to the selling holders and the underwriters or
agents, if any, opinions of counsel for the Company with respect to,
among other things, the due incorporation and good standing of the
Company; the qualification of the Company to transact business as
foreign corporation; the due authorization, execution and delivery of
this Agreement; the due authorization, execution, authentication and
issuance, and the validity and enforceability, of the Notes or
Debentures, as the case may be; the absence of material legal or
governmental proceedings involving the Company; the absence of a
breach by the Company of, or a default under, agreements binding the
Company; the absence of governmental approvals required to be
obtained in connection with the registration, offering and sale of
the Notes or Debentures as the case may be; the compliance as to form
of the Registration Statement and any documents incorporated by
reference therein with the requirements of the Securities Act; the
effectiveness of such Registration Statement under the Securities
Act; the security interest created by the Collateral Trust Agreement
and a statement that, as of the date of the opinion and of the
Registration Statement or most recent post-effective amendment
thereto, as the case may be, nothing has come to the attention of
such counsel which causes them to believe that either the
Registration Statement or the Prospectus included therein, as then
amended or supplemented, or the documents incorporate by reference
therein (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed
with the Commission
<PAGE>
<PAGE> 11
under the Exchange Act), contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein not misleading (it being understood that such
counsel need express no opinion as to the financial statements and
other financial data included therein or omitted therefrom).
In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" of, or shall have a "conflict of
interest" with, the Company (each such term as defined in Schedule E
to the By-Laws of the National Association of Securities Dealers
("NASD")), and such broker-dealer shall underwrite debt securities of
the Company or participate as a member of an underwriting syndicate
or selling group or otherwise "assist in the distribution" (within
the meaning of the Rules of Fair Practice and the By-Laws of the NASD)
thereof, whether as a holder of such debt securities of the Company or
as an underwriter, a placement or sales agent or a broker or dealer in
respect of such debt securities or otherwise, the Company shall assist
such broker-dealer, in complying with the requirements of such Rules
and By-Laws, including, without limitation, by (1) if such Rules or
By-Laws, including Schedule E thereto, shall so require, engaging a
"qualified independent underwriter" (as defined in such Schedule) to
participate in the preparation of the registration statement relating
to such debt securities to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by
the Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the maximum public
offering price of such debt securities, (2) paying the fees and expenses
of any such qualified independent underwriter and indemnifying the
qualified independent underwriter to the extent of the indemnification
of underwriters provided in Section 3.4 hereof, and (3) providing to
such broker-dealer such information concerning the Company and its
affiliates, officers, directors, employees and securityholders as may
be required in order for such broker-dealer to comply with the
requirements of Schedule E to the NASD Bylaws and Section 44 of the
Rules of Fair Practice.
(k) Immediately prior to the effectiveness of the
Registration Statement or, in the case of an underwritten offering,
at the time of delivery of any Registered Securities sold pursuant
thereto, the Company shall cause to be delivered to the selling
holders and the underwriters or agents, if any, letters from the
Company's independent public accountants stating that such
accountants are independent public accountants with respect to the
Company within the meaning of the Securities Act and the applicable
published rules and regulations of the SEC thereunder, and otherwise
in customary form and covering such financial and accounting matters
as are customarily covered by letters of the independent public
accountants delivered in connection with primary underwritten public
offerings.
(l) If the managing underwriter or agent so requests, the
underwriting or agency agreement shall set forth in full the
provisions hereof relating to covenants, registration expenses,
lock-up agreements, indemnification and contribution contained in
<PAGE>
<PAGE> 12
Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.8 and 3.9, with such changes
therein as may be agreed to by the managing underwriter or agent, the
Company and the selling holders.
(m) The Company shall deliver such documents and certificates
as may be requested by any selling holder or the underwriters or
agents, if any, to evidence compliance with Section 3.1(i) and with
any customary conditions contained in the underwriting or agency
agreement, if any.
(n) The Company will make available for inspection by
representatives of the selling holders and the underwriters or agents
participating in such offering, any attorney or accountant retained
by such selling holders or underwriters or agents and, with respect
to any private placement of Notes or Debentures, as the case may be,
upon notice to the Company, prospective purchasers, all financial and
other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such representative,
underwriter or agent, attorney or accountant in connection with the
preparation of the Registration Statement; provided, however, that any
records, information or documents that are designated by the Company
in writing as confidential shall be kept confidential by each such
person (by, among other things, if so requested by the Company,
entering into a confidentiality agreement in form and substance
satisfactory to the Company) unless such records, information or
documents become part of the public domain through no fault of such
person or unless disclosure thereof is required by court or
administrative order or the SEC (including the federal securities law).
(o) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby (or 90 days if such period is a
fiscal year), an earnings statement of the Company (in form complying
with the provisions of Rule 158 under the rules and regulations of
the SEC under the Securities Act), covering a period of 12 months
beginning after the effective date of the Registration Statement but
not later than the first day of the Company's fiscal quarter next
following such effective date.
(p) The Company will enter into such customary agreements,
including a customary underwriting or agency agreement with the
underwriters or agents, if any, and take all such other actions in
connection with the offering in order to expedite or facilitate the
disposition of the Registered Securities.
(q) (i) Prior to or at the time the Registration Statement
becomes effective, the Company will prepare and qualify a trust
indenture relating to the Notes or Debentures, as the case may be (an
"Indenture"), under the Trust Indenture Act of 1939. In the event
that any modification or amendment to such Indenture is required by
such Act or the rules and regulations thereunder or by the staff of
the SEC in order so to qualify the Indenture, the Company shall
without delay solicit consents of holders (as defined in such
Indenture) in the manner and with the effect provided by such
Indenture, pursuant to
<PAGE>
<PAGE> 13
which such holders shall be asked to consent to such modifications
or amendments, but only such modifications or amendments, as shall
be so required. In connection with any such solicitation, the
Company shall recommend that Holders of Notes or Debentures, as the
case may be, consent to such modifications or amendments. Notwith-
standing the foregoing, in the event that such modifications or
amendments may be effected without the consent of such Holders
pursuant to the applicable provisions of the Indenture, the Company
shall use its best efforts to effect such modifications or amendments
without such consent.
(ii) In the event that any such amendment or
modification involves the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
3.2. Covenants of the Selling Holders. (a) Each selling
holder shall use its best efforts to furnish to the Company such
information regarding the distribution of such Registered Securities as is
customarily requested from selling holders in underwritten public
offerings.
(b) Each selling holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described
in Section 3.1(a)(vi), such selling holder will forthwith discontinue the
disposition of its Registered Securities pursuant to the Registration
Statement until such selling holder's receipt of the copies of a
supplemented or amended Prospectus contemplated by Section 3.1(f), or until
it is advised in writing by the Company that the use of such Prospectus may
be resumed. If the Company shall give any such notice, the Company shall
extend the period of time during which the Company is required to keep the
Registration Statement effective and usable by the number of days during
the period from the date of receipt of such notice to the date when each
selling holder of Registered Securities covered by such Registration
Statement either receives the copies of a supplemented or amended
Prospectus contemplated by Section 3.1(f) or is advised in writing by the
Company that the use of such Prospectus may be resumed.
(c) Each selling holder agrees to make customary
representations and warranties to the Company and the underwriters or
agents, if any, in form, substance and scope as are customarily made by
selling holders in underwritten public offerings, but no selling holders,
as such, shall be required to make any representation or warranty as to the
accuracy or completeness of the Registration Statement (except as to
written information furnished to the Company by such selling holder
expressly for use therein).
(d) Each selling holder agrees to provide the Company, upon
receipt of its request, with such information about the selling holder to
enable the Company to comply with the requirements of the Securities Act
and to execute such certificates as the Company may reasonably request in
connection with such information and otherwise to satisfy any requirements
of law.<PAGE>
<PAGE> 14
3.3. Registration Expenses. (a) The Company will pay and
bear all costs and expenses incident to the performance of its obligations
under this Agreement with respect to each registration pursuant to
Section 2.1 or 2.2, including, without limitation:
(i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as
originally filed and as amended, any preliminary prospectuses and the
Prospectus and any amendments or supplements thereto, and the cost of
furnishing copies thereof to the selling holders or the underwriters
or agents, as the case may be;
(ii) the preparation, printing and distribution of any
underwriting or agency agreement, certificates representing the
Registered Securities, any Blue Sky Survey and other documents
relating to the performance of and compliance with this Agreement;
(iii) the fees and disbursements of the Company's counsel and
accountants and the reasonable fees and disbursements of one counsel
retained by the selling holders pursuant to Section 3.3(b);
(iv) the fees and disbursements of the underwriters or agents
customarily paid by issuers or sellers of securities and the
reasonable fees and expenses of any special experts retained in
connection with the Registration Statement, but excluding
underwriting discounts and commissions and transfer taxes, if any;
(v) the qualification of the Registered Securities under
applicable securities laws in accordance with Section 3.1(g) and any
filing for review of the offering with the NASD, including filing
fees and fees and disbursements of counsel for the selling holders
and the underwriters or agents, as the case may be, in connection
therewith, in connection with any Blue Sky Survey; and
(vi) all fees and expenses incurred in connection with the
listing, if any, of any of the Registered Securities on any
securities exchange pursuant to Section 3.1(h).
(b) In connection with the filing of each Registration
Statement, the Company will reimburse the selling holders for the
reasonable fees and disbursements of one firm of legal counsel, which shall
be chosen by the Representative(s) and shall be reasonably satisfactory to
the Company.
(c) Each selling holder will pay and bear all costs and
expenses incident to the delivery of the Registered Securities to be sold
by it, including any transfer taxes payable upon the sale of such
Registered Securities to the purchaser thereof and any underwriting
discounts or commissions payable to underwriters or agents in connection
therewith.
3.4. Indemnification. (a) In connection with each
registration pursuant to Section 2.1 or 2.2, the Company agrees to
indemnify and hold harmless each selling holder,
<PAGE>
<PAGE> 15
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;
provided, however, that, with respect to any selling holder or any
underwriter or agent, this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement
or omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information furnished to the Company by any
such selling holder or underwriter or agent, respectively, expressly for
use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each selling holder agrees severally, and not jointly, to
indemnify and hold harmless the Company, its directors, each of its
officers who signed a Registration Statement, each underwriter or agent
participating in such offering and the other selling holders, and each
person, if any, who controls the Company, any such underwriter or agent and
any other selling holder within the meaning of Section 15 of the Securities
Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 3.4(a), as incurred, but
only with respect to untrue statements or <PAGE>
<PAGE> 16
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 3.4(a) and
of the selling holders under Section 3.4(b) to indemnify any underwriter or
agent who participates in an offering (or any person, if any, controlling
such underwriter or agent within the meaning of Section 15 of the
Securities Act) shall be conditioned upon the underwriting or agency
agreement with such underwriter or agent containing an agreement by such
underwriter or agent to indemnify and hold harmless the Company, its
directors, each of its officers who signed a Registration Statement, and
each selling holder, and each person, if any, who controls the Company or
any such selling holder within the meaning of Section 15 of the
Securities Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 3.4(a), as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by such underwriter or
agent expressly for use in the Registration Statement (or any amendment
thereto), or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(d) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve the indemnifying party from any liability it may
have under this Agreement, except to the extent that the indemnifying party
is materially prejudiced thereby. If it so elects, after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel
chosen by it, provided that the indemnified party shall be entitled to
participate in the defense of such action with counsel chosen by it, the
fees and expenses of which, subject to the next sentence, shall be paid by
the indemnifying party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel for
(i) the Company, its officer, directors and controlling persons as a group,
(ii) the selling holders and their controlling persons as a group and (iii)
the underwriters or agents and their controlling persons as a group, in
each case, in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
3.5. Contribution. (a) In order to provide for just and
equitable contribution in circumstances under which the indemnity provided
for in this Section 3 is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Company, the selling holders and the underwriters or agents shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity <PAGE>
<PAGE> 17
incurred by the Company, the selling holders and one or more of the
underwriters or agents, as incurred, in such proportions that (i) the
underwriters or agents are responsible for that portion represented by the
percentage that the underwriting discounts and commissions for the offering
appearing on the cover page of the Prospectus (or, if not set forth on the
cover page, that are applicable to the offering) bear to the initial public
offering price appearing on the cover page (or, if not set forth on the
cover page, that are applicable to the offering) and (ii) each of the
selling holders and the Company is responsible for an equal portion of the
balance.
(b) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 3.5, each person, if any,
who controls an underwriter or agent within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as such
underwriter or agent, and each director of the Company, each officer of the
Company who signed a Registration Statement, and each person, if any, who
controls the Company or a selling holder within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the
Company or such selling holder, as the case may be.
3.6. Representations, Warranties and Indemnities to Survive.
The indemnity and contribution agreements contained in this Section 3 and
the representations and warranties of the Company referred to in
Section 3.1(i) shall remain operative and in full force and effect
regardless of (i) any termination of any underwriting or agency agreement,
(ii) any investigation made by or on behalf of the selling holders, the
Company or any underwriter or agent or controlling person or (iii) the
consummation of the sale or successive resales of the Registered
Securities.
3.7. Rule 144. The Company covenants that it will continue to
file the reports required to be filed by it under the Securities Act and
the rules and regulations of the SEC thereunder and the Exchange Act and
the rules and regulations of the SEC thereunder and it will take such
further action as any Holder of Debentures or Notes may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Notes or Debentures, as the case may be, without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time.
Upon the request of any Holder of Notes or Debentures, the Company will
deliver to such Holder a written statement as to whether it has complied
with such requirements.
3.8. Participation in Underwritten Offerings. No Holder of
Notes or Debentures may participate in any underwritten offering hereunder
unless:
(a) Such Holder executes a power of attorney appointing one
or more (up to three) attorneys (each, a "Representative") designated
by the selling holders proposing to sell a majority of the Notes or
Debentures, as the case may be, proposed to be sold by all selling
holders. Each such Representative shall be authorized, on customary
<PAGE>
<PAGE> 18
terms, to execute the underwriting agreement on behalf of each
selling holder and to otherwise act for the selling holders in
connection with the offering.
(b) Such Holder directly through its Representative enters
into an underwriting agreement with the Company, the other selling
holders, any selling securityholders and the underwriters, which
underwriting agreement shall comply with the provisions of this
Section 3.
(c) Such Holder executes all questionnaires and other
documents required by the underwriting agreement to be executed by
such Holder.
3.9. Lock-Up Agreements. (a) The Company agrees that it will
not, directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any debt securities of the Company, in
the case of any registration pursuant to Section 2.1, for a period of 90
days from the effective date of any Registration Statement.
(b) Each Holder whose Notes and/or Debentures are covered by
a Registration Statement filed pursuant to Section 2.1 or 2.2 agrees that
it will not, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any debt securities of the
Company (except such Notes and/or Debentures covered by such Registration
Statement) for a period of 90 days from the effective date of any
Registration Statement.
(c) The lock-up agreements set forth in Sections 3.9(a) and
3.9(b) shall be subject to customary exceptions that may be contained in an
underwriting agreement if any such registration involves an underwritten
offering.
4. Miscellaneous.
4.1. No Inconsistent Agreements. The Company covenants and
agrees that it shall not grant registration rights with respect to
Registrable Securities or any other securities which would be inconsistent
with the terms contained in this Agreement. The Company is not currently a
party to any agreement with respect to any of its equity or debt securities
granting any registration rights to any person, other than the Warrant
Agreement and the Stock Appreciation Rights Agreement.
4.2. Specific Performance. The parties hereto acknowledge
that there may be no adequate remedy at law if any party fails to perform
any of its obligations hereunder and that each party may be irreparably
harmed by any such failure, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to compel specific performance of the obligations
of any other party under this Agreement in accordance with the terms and
conditions of this Agreement, in any court of the United States or any
State thereof having jurisdiction.
<PAGE>
<PAGE> 19
4.3. Notices. All notices, requests, claims, demands, waivers
and other communications hereunder shall be in writing and shall be deemed
to have been duly given when delivered by hand, if delivered personally or
by courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 1270 Avenue of the Americas, New York, New York
10020, Attention: Secretary; if to GSMC, to it at 85 Broad Street, New
York, New York 10004; if to Whitehall, to it at 85 Broad Street, New York,
New York 10004; and if to a Holder, to the address of such Holder set forth
in the security register or other records of the Company, or to such other
address as any party may have furnished to the others in writing in
accordance herewith, except that notices of change of address shall be
effective only upon receipt.
4.4. Parties in Interest. All the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and
shall be enforceable by the respective successors and assigns of the
parties hereto. In the event that any transferee of any holder of Notes or
Debentures shall acquire Notes or Debentures, in any manner, whether by
gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be deemed a party
hereto for all purposes and such Notes or Debentures shall be held subject
to all of the terms of this Agreement, and by taking and holding such Notes
or Debentures such transferee shall be entitled to receive the benefits of
and be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement. If the Company shall
so request, any such successor, assign or transferee shall agree in writing
to acquire and hold the Notes or Debentures subject to all of the terms
hereof.
4.5. Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any holder of Notes or Debentures, any director,
officer or partner of such holder, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of
the foregoing, and shall survive delivery of and payment for the Notes and
Debentures pursuant to the Loan Agreement and Debenture Purchase Agreement
and the transfer and registration of Notes or Debentures by such holder.
4.6. LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4.7. Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for convenience
only, do not constitute a part of this Agreement and shall not affect in
any way the meaning or interpretation of this Agreement.
4.8. Amendments. This Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) only by
a written instrument duly executed by the Company and the holders of at
least 75 percent in aggregate principal amount of the Notes or Debentures,
as<PAGE>
<PAGE> 20
the case may be, at the time outstanding. Each holder of any Notes or
Debentures, as the case may be, at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 4.8,
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Notes or Debentures, as the case may be, or is
delivered to such holder.
4.9. Inspection. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and addresses of
all the holders of Notes and Debentures shall be made available for
inspection and copying on any business day, on reasonable notice, by any
holder of Notes or Debentures, as the case may be, at the offices of the
Company at the address thereof set forth in Section 4.3.
4.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
<PAGE>
<PAGE> 21
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first written above.
ROCKEFELLER CENTER PROPERTIES, INC.
By: /s/ Richard M. Scarlata
Richard M. Scarlata
President
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate Funding
Corp., General Partner
By: /s/ Steven T. Mnuchin
Steven T. Mnuchin
President
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General Partner
By: WH Advisors, Inc. V, General
Partner
By: /s/ Ralph F. Rosenberg
Ralph F. Rosenberg
Vice-President
<PAGE> 1
EX. 4.6
December 29, 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
<PAGE>
<PAGE> 2
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
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 member 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>
<PAGE> 3
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 62.55 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>
<PAGE> 4
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.)
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EX. 4.7
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the
Securities Exchange Act of 1934, the undersigned agree to the joint filing
of a Statement on Schedule 13D (including any and all amendments thereto)
with respect to the shares of common stock, par value $.01 per share, of
Rockefeller Center Properties, Inc., and further agree that this Joint
Filing Agreement be included as an Exhibit thereto. In addition, each
party to this Agreement expressly authorizes each other party to this
Agreement to file on its behalf any and all amendments to such Statement.
Date: December 29, 1994
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V
By: WH Advisors, L.P. V, General Partner
By: WH Advisors, Inc. V, General Partner
By: /s/ Ralph F. Rosenberg
Name: Ralph F. Rosenberg
Title: Vice President
WH ADVISORS L.P. V
By: WH Advisors, Inc. V, General
Partner
By: /s/ Ralph F. Rosenberg
Name: Ralph F. Rosenberg
Title: Vice President
WH ADVISORS, INC. V
By: /s/ Ralph F. Rosenberg
Name: Ralph F. Rosenberg
Title: Vice President
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THE GOLDMAN SACHS GROUP, L.P.
By: /s/ Barry S. Volpert
Name: Barry S. Volpert
General Partner
/s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
