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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 8)
Rockefeller Center Properties, Inc.
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
(Title of Class of Securities)
773102 10 8
(CUSIP Number)
David J. Greenwald, Esq.
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
(212) 902-1000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
November 7, 1995
(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 [ ].
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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
RCPI Holdings, Inc.
(Not available)
- ------------------------------------------------------------
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 ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0 Shares
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0 Shares
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0 Shares
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0 Shares
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
0 Shares
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- ------------------------------------------------------------
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
RCPI Merger, Inc.
(Not available)
- ------------------------------------------------------------
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 ITEMS 2(D) OR 2(E)
[ ]
- ------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ------------------------------------------------------------
7. SOLE VOTING POWER
NUMBER OF 0 Shares
SHARES ----------------------------------------
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0 Shares
EACH ----------------------------------------
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 0 Shares
WITH ----------------------------------------
10. SHARED DISPOSITIVE POWER
0 Shares
- ------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
0 Shares
- ------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- ------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
- ------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
- ------------------------------------------------------------
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Whitehall Street Real Estate Limited Partnership V
("Whitehall"), WH Advisors, L.P. V, WH Advisors, Inc. V, The Goldman Sachs
Group, L.P., Goldman, Sachs & Co. ("GS&Co"), RCPI Holdings Inc. ("RCPI
Holdings") and RCPI Merger Inc. ("RCPI Merger") hereby amend the report on
Schedule 13D, dated January 3, 1995, as amended by Amendment No. 1 thereto
dated September 12, 1995, Amendment No. 2 thereto dated September 19, 1995,
Amendment No. 3 thereto dated October 6, 1995, Amendment No. 4 thereto
dated October 6, 1995, Amendment No. 5 thereto dated October 10, 1995,
Amendment No. 6 thereto dated October 12, 1995 and Amendment No. 7 thereto
dated October 18, 1995 (the "Schedule 13D"), filed in respect of the Common
Stock of Rockefeller Center Properties, Inc., a Delaware corporation
("RCPI"), as set forth in this Amendment. Capitalized terms used but not
defined herein shall have the meanings given such terms in the Schedule
13D.
Item 2. Identity and Background.
Item 2 of the Schedule 13D is hereby amended by replacing the
first paragraph therein with the following paragraph:
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"), Goldman, Sachs & Co. ("GS&Co."), RCPI Holdings Inc.
("RCPI Holdings") and RCPI Merger Inc. ("RCPI Merger", together with
Whitehall, WH Advisors, L.P., WH Advisors, Inc., GS Group, GS&Co. and
RCPI Holdings, the "Reporting Persons").
Item 2 of the Schedule 13D is further amended by adding the
following paragraphs at the end thereof:
As described in Item 4, on November 7, 1995, RCPI
Holdings, RCPI Merger, Whitehall, Rockprop L.L.C., a Delaware limited
liability company ("Rockprop"), Rockefeller, Exor and Troutlet (the
"Investor Group") entered into an Agreement and Plan of Merger, dated
November 7, 1995 with RCPI (the "Merger Agreement"). In connection
therewith, the Whitehall Investors, Rockefeller, Exor and Troutlet
consented to the assignment by Tishman Speyer to Rockprop of its rights
under the letter agreement, dated October 1, 1995, and amended to the
date hereof (including Exhibits 11, 14 and 15 to this Schedule 13D), by
and among Whitehall, GS&Co., GSMC, Tishman Speyer and Rockefeller (as
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amended from time to time, the "Investor Group Letter") governing the
relationship among the Investor Group.
RCPI Holdings is a Delaware corporation formed in
connection with the transactions that are the subject of this
Schedule 13D and is a wholly owned subsidiary of Whitehall. RCPI
Merger is a Delaware corporation formed in connection with the
transactions that are the subject of this Schedule 13D and is a
wholly owned subsidiary of RCPI Holdings. Neither RCPI Holdings nor
RCPI Merger engage in any business other than that which they might
be required to engage in to effectuate the Merger Agreement.
Attached hereto as Schedule A and incorporated herein by
reference is a list of the name, residence or business address and
the present principal occupation or employment of each executive
officer and director of RCPI Holdings and RCPI Merger. Neither RCPI
Holdings, RCPI Merger nor, to the best knowledge and belief of the
Reporting Persons, any of the individuals listed in Schedule A hereto
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.
To the knowledge of the Reporting Persons, Rockprop
is a Delaware limited liability company whose members are Tishman
Speyer Crown Equities, a Delaware general partnership ("TSCE"), TSE
Limited Partnership, an Illinois limited partnership ("TSELP") and
Rockprop Associates Limited Partnership, a Delaware limited Partnership
("Rockprop L.P."). To the knowledge of the Reporting Persons,
Rockprop's principal business is to serve as the holding company for
the investment by TSCE, TSELT and Rockprop L.P. in connection with the
Merger Agreement and Rockprop's business address is 520 Madison Avenue,
New York, NY 10022.
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Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Schedule 13D is hereby amended by adding the
following paragraphs at the end thereof:
In the Merger Agreement, Whitehall, Rockprop,
Rockefeller, Exor and Troutlet agreed that of the $440 million in
commitments Whitehall, Rockprop, Rockefeller, Exor and Troutlet will
make to RCPI Holdings, $134,031,880, $15,639,686, $15,639,686,
$70,387,190 and $70,387,190, will be contributed by each of
Whitehall, Rockprop, Rockefeller, Exor and Troutlet respectively, to
pay the approximately $306 million consideration in the merger under
the Merger Agreement.
To the knowledge of the Reporting Persons, the funds to
be used by Rockprop to meet its funding commitments in connection
with the Merger Agreement are expected to come from capital
contributions and loans from the members of Rockprop, the funds to be
used by Troutlet to meet its funding commitments in connection with
the Merger Agreement are expected to come from capital contributions
by its stockholder, and the funds to be used by Exor to meet its
funding commitments in connection with the Merger Agreement are
expected to come from currently available working capital of Exor.
Item 4. Purpose of the Transaction.
Item 4 of the Schedule 13D is hereby amended by inserting the
following paragraphs as new numbered paragraphs 13, 14, 15 and 16
immediately after numbered paragraph 12 appearing therein:
13. On November 7, 1995, RCPI, RCPI Holdings, RCPI
Merger, Whitehall, Rockprop, Rockefeller, Exor and Troutlet
entered into the Merger Agreement pursuant to which, on the
terms and subject to conditions set forth therein, among other
things, RCPI Merger would be merged with and into RCPI and the
stockholders of RCPI would be entitled to receive $8 per share
of Common Stock in cash. A copy of the Merger Agreement is
attached hereto as Exhibit 16 and is incorporated herein by
reference.
14. On November 7, 1995, the Whitehall Investors,
Rockprop, Rockefeller, Exor and Troutlet executed a letter
agreement to, among other things, substitute Rockprop for
Tishman
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Speyer in the Investor Group Letter. A copy of the letter
agreement, dated November 7, 1995, among the Whitehall Investors,
Rockprop, Rockefeller, Exor and Troutlet is attached hereto
as Exhibit 17 and is incorporated herein by reference.
15. On November 7, 1995, in connection with the Merger
Agreement RCPI and GSMC executed a Supplemental Agreement (the
"Supplemental Agreement") to the Loan Agreement, dated December
18, 1994 by and among RCPI, the lenders parties thereto and
GSMC, pursuant to which GSMC agreed to extend RCPI additional
credit of up to $45 million. A copy of the Supplemental
Agreement is attached hereto as Exhibit 18 and is incorporated
herein by reference.
16. On November 7, 1995, RCPI, GS&Co. and Whitehall
executed a letter agreement in which they agreed, among other
things, that should the stockholders of RCPI fail to approve
the Merger Agreement, GS&Co. and Whitehall will cooperate with
RCPI if it chooses to conduct a $200 million publicly
registered rights offering at a price of no less than $6 per
share of Common Stock. A copy of the letter agreement, dated
November 7, 1995, among RCPI, GS&Co. and Whitehall is attached
hereto as Exhibit 19 and is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer.
Item 5(a) and (b) of the Schedule 13D are hereby amended by
inserting the following paragraphs as new numbered paragraphs 9 and 10
immediately after numbered paragraph 8 appearing therein:
9. Neither RCPI Holdings nor RCPI Merger beneficially
owns any shares of Common Stock.
10. To the knowledge of the Reporting Persons, Rockprop
does not beneficially own any shares of Common Stock.
Item 5(c) of the Schedule 13D is hereby amended by inserting
the following paragraph at the end thereof:
To the knowledge of the Reporting Persons, Rockprop has
not been a party to any transaction
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in the Common Stock during the sixty-day period preceding
November 9, 1995.
Item 5(d) of the Schedule 13D is hereby amended by inserting
the following paragraph at the end thereof:
As stated in Items 5(a) and 5(b), to the knowledge of the
Reporting Persons, Rockprop does not beneficially own any
shares of Common Stock.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Item 6 of the Schedule 13D is hereby amended by inserting the
following paragraphs as new lettered paragraphs (h), (i), (j) and (k)
immediately after lettered paragraph (g) appearing therein:
(h) On November 7, 1995, RCPI, RCPI Holdings, RCPI
Merger, Whitehall, Rockprop, Rockefeller, Exor and Troutlet
entered into the Merger Agreement pursuant to which, on the
terms and subject to conditions set forth therein, among other
things, RCPI Merger would be merged with and into RCPI and the
stockholders of RCPI would be entitled to receive $8 per share
of Common Stock in cash. A copy of the Merger Agreement is
attached hereto as Exhibit 16 and is incorporated herein by
reference.
(i) On November 7, 1995, the Whitehall Investors,
Rockprop, Rockefeller, Exor and Troutlet executed a letter
agreement to, among other things, substitute Rockprop for
Tishman Speyer in the Investor Group Letter. A copy of the
letter agreement, dated November 7, 1995, among the Whitehall
Investors, Rockprop, Rockefeller, Exor and Troutlet is attached
hereto as Exhibit 17 and is incorporated herein by reference.
(j) On November 7, 1995, in connection with the Merger
Agreement RCPI and GSMC executed the Supplemental Agreement
pursuant to which GSMC agreed to extend to RCPI additional
credit of up to $45 million. Pursuant to the Supplemental
Agreement, on November 7, 1995, GSMC loaned RCPI $10.2 million.
A copy of the Supplemental Agreement is attached
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hereto as Exhibit 18 and is incorporated herein by reference.
(k) On November 7, 1995, RCPI, GS&Co. and Whitehall
executed a letter agreement in which they agreed that should
the stockholders of RCPI fail to approve the Merger Agreement,
GS&Co. and Whitehall will cooperate with RCPI if it chooses to
conduct a $200 million publicly registered rights offering at a
price of no less than $6 per share of Common Stock. A copy of
the letter agreement, dated November 7, 1995, among RCPI,
GS&Co. and Whitehall is attached hereto as Exhibit 19 and is
incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
Item 7 of the Schedule 13D is hereby amended by adding the
following immediately at the end thereof:
Exhibit No. Exhibit Page
16 Agreement and Plan of Merger, dated
November 7, 1995, by and among
Rockefeller Center Properties, Inc.,
RCPI Holdings Inc., RCPI Merger Inc.,
Whitehall Street Real Estate Limited
Partnership V, Rockprop L.L.C., David
Rockefeller, Exor Group S.A., Troutlet
Investments Corporation and, for the
purposes of Sections 3.2, 4.1(a),
4.1(b), 4.3(a) and 4.4(b) only, Goldman
Sachs Mortgage Company (excluding the
Disclosure Schedules).
17 Letter Agreement, dated November 7,
1995, by and among Whitehall Street
Real Estate Limited Partnership V,
Goldman, Sachs & Co., Goldman Sachs
Mortgage Company, Rockprop L.L.C.,
David Rockefeller, Exor Group S.A. and
Troutlet Investments Corporation.
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18 Supplemental Agreement, dated November
7, 1995, by and among Rockefeller
Center Properties, Inc. and Goldman
Sachs Mortgage Company.
19 Letter Agreement, dated November 7,
1995, by and among Rockefeller Center
Properties, Inc., Goldman, Sachs & Co.
and Whitehall Street Real Estate
Limited Partnership V.
20 Joint Filing Agreement.
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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: November 9, 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
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Schedule A
The following sets forth the name of each director and
executive officer of RCPI Holdings Inc. and RCPI Merger Inc. The business
address of each person listed below is 85 Broad Street, New York, New York,
10004, and 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.
Daniel M. Neidich Partner
Barry Volpert Partner
Ralph Rosenberg Vice President
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Exhibit 16
AGREEMENT AND PLAN OF MERGER
among
RCPI HOLDINGS INC.,
RCPI MERGER INC.,
the INVESTORS LISTED HEREIN
and
ROCKEFELLER CENTER PROPERTIES, INC.
Dated as of November 7, 1995
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TABLE OF CONTENTS
Page
ARTICLE 1 THE MERGER . . . . . . . . . . . . . . . . . . 2
Section 1.1 The Merger . . . . . . . . . . . . . . 2
Section 1.2 Closing . . . . . . . . . . . . . . . . 2
Section 1.3 Effective Time . . . . . . . . . . . . 3
Section 1.4 Certificate of Incorporation and
By-laws . . . . . . . . . . . . . . . . 3
Section 1.5 Directors and Officers . . . . . . . . 3
ARTICLE 2 EFFECT OF THE MERGER ON THE CAPITAL STOCK OF RCPI
AND SUB; PAYMENT FOR SHARES . . . . . . . . . 3
Section 2.1 Effect on Capital Stock . . . . . . . . 3
(a) Conversion of Shares of Common Stock . 4
(b) Cancellation of Common Stock Owned by RCPI,
Parent and Sub . . . . . . . . . . . . 4
(c) Conversion of Shares of Sub Common Stock 4
Section 2.2 Payment for Common Stock . . . . . . . 4
(a) Exchange Agent . . . . . . . . . . . . 4
(b) Payment Procedures . . . . . . . . . . 4
(c) Further Ownership Rights in Common Stock 6
(d) Termination of Exchange Fund . . . . . 6
(e) No Liability . . . . . . . . . . . . . 6
Section 2.3 Dissenting Shares . . . . . . . . . . . 6
Section 2.4 Treatment of Warrants and SARs . . . . 7
ARTICLE 3 REPRESENTATIONS AND WARRANTIES . . . . . . . . 7
Section 3.1 Representations and Warranties of RCPI. 7
(a) Organization, Standing and Corporate
Power . . . . . . . . . . . . . . . . . 7
(b) Capitalization . . . . . . . . . . . . 7
(c) SEC Documents; Financial Statements;
Liabilities; Etc. . . . . . . . . . . . 8
(d) Authority . . . . . . . . . . . . . . . 10
(e) Compliance with Applicable Laws . . . . 11
(f) Government Approvals; Required
Consents . . . . . . . . . . . . . . . 11
(g) Non-Contravention . . . . . . . . . . . 12
(h) Litigation . . . . . . . . . . . . . . 12
(i) Taxes and Related Tax Matters . . . . . 13
(j) Certain Agreements . . . . . . . . . . 14
(k) Employee Benefits . . . . . . . . . . . 15
(l) The "Rockefeller Center" Name . . . . . 16
(m) Contracts . . . . . . . . . . . . . . . 16
(n) Absence of Certain Changes or Events . 16
(o) Recommendation of Board of Directors; Vote
Required . . . . . . . . . . . . . . . 17
(p) Opinion of Financial Advisor . . . . . 18
(q) Accuracy of Information Supplied . . . 18
(r) Proxy Statement . . . . . . . . . . . . 18
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(s) Brokers or Finders . . . . . . . . . . 19
(t) Government Regulation . . . . . . . . . 19
(u) No Pending Condemnation or Eminent Domain
19
(v) Subordination of Certain Leases . . . . 20
(w) No Insolvency Proceeding . . . . . . . 20
(x) Insurance . . . . . . . . . . . . . . . 20
Section 3.2 Representations and Warranties of Parent,
Sub, Investors and GSMC . . . . . . . . 21
(a) Organization, Standing and Corporate
Power . . . . . . . . . . . . . . . . . 21
(b) Authority . . . . . . . . . . . . . . . 21
(c) Government Approvals; Required
Consents . . . . . . . . . . . . . . . 22
(d) Non-Contravention . . . . . . . . . . . 22
(e) Financing . . . . . . . . . . . . . . . 23
(f) Proxy Statement . . . . . . . . . . . . 23
(g) Brokers or Finders . . . . . . . . . . 23
(h) No Agreement . . . . . . . . . . . . . 23
ARTICLE 4 COVENANTS . . . . . . . . . . . . . . . . . . . 24
Section 4.1 Mutual Covenants of RCPI, Parent, Sub, GSMC
and Each Investor . . . . . . . . . . . 24
(a) Satisfaction of Conditions; Additional
Agreements . . . . . . . . . . . . . . 24
(b) Confidentiality . . . . . . . . . . . . 24
(c) Publicity . . . . . . . . . . . . . . . 25
(d) Advice of Breach . . . . . . . . . . . 25
Section 4.2 Covenants of RCPI . . . . . . . . . . . 25
(a) Access to Information and Facilities . 26
(b) Ordinary Course . . . . . . . . . . . . 26
(c) Stockholders' Meeting; Fiduciary
Duties . . . . . . . . . . . . . . . . 30
(d) Preparation of the Proxy Statement . . 31
(e) Exclusivity . . . . . . . . . . . . . . 32
(f) New Leases; Approval Rights . . . . . . 32
(g) Notice of Default . . . . . . . . . . . 33
(h) Bankruptcy Cases . . . . . . . . . . . 33
(i) Prepayment of Zell/Merrill Lynch
Loans; Termination of Zell Agreements . 35
(j) Release . . . . . . . . . . . . . . . . 35
Section 4.3 Covenants of the Investors . . . . . . 35
(a) Releases . . . . . . . . . . . . . . . 35
(b) Investor Commitments . . . . . . . . . 35
Section 4.4 Covenants of GSMC and Whitehall . . . . 36
(a) GS Board Nominee . . . . . . . . . . . 36
(b) GSMC Loans . . . . . . . . . . . . . . 36
(c) No Exercise of SARs . . . . . . . . . . 37
ARTICLE 5 CONDITIONS PRECEDENT . . . . . . . . . . . . . 37
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Section 5.1 Conditions to the Obligations of Parent,
Sub, the Investors and RCPI to Effect
the Merger . . . . . . . . . . . . . . 37
(a) Stockholder Approval . . . . . . . . . 37
(b) No Injunctions or Restraints . . . . . 37
(c) HSR Act . . . . . . . . . . . . . . . . 38
(d) Governmental Approvals . . . . . . . . 38
(e) Required Consents . . . . . . . . . . . 38
Section 5.2 Conditions to the Obligations of Parent,
Sub and the Investors . . . . . . . . . 38
(a) Accuracy of Representations and
Warranties . . . . . . . . . . . . . . 38
(b) Performance of Agreements . . . . . . . 39
(c) No Material Adverse Change . . . . . . 39
(d) Liabilities of RCPI . . . . . . . . . . 39
(e) Satisfactory Chapter 11 Plan . . . . . 40
(f) Termination of Zell Agreements . . . . 40
(g) Condition of the Property . . . . . . . 40
(h) Environmental Matters . . . . . . . . . 41
(i) Conveyance of Property . . . . . . . . 41
(j) No Taxes . . . . . . . . . . . . . . . 42
(k) Employee Benefits . . . . . . . . . . . 42
Section 5.3 Conditions to the Obligations of
RCPI . . . . . . . . . . . . . . . . . 43
(a) Accuracy of Representations and
Warranties . . . . . . . . . . . . . . 43
(b) Performance of Agreements . . . . . . . 43
ARTICLE 6 TERMINATION . . . . . . . . . . . . . . . . . . 43
Section 6.1 Termination . . . . . . . . . . . . . . 43
Section 6.2 Effect of Termination . . . . . . . . . 45
ARTICLE 7 GENERAL PROVISIONS . . . . . . . . . . . . . . 46
Section 7.1 Certain Definitions . . . . . . . . . . 46
Section 7.2 Notices . . . . . . . . . . . . . . . . 54
Section 7.3 Interpretation . . . . . . . . . . . . 57
Section 7.4 Waivers and Amendments . . . . . . . . 57
Section 7.5 Expenses and Other Payments . . . . . . 58
Section 7.6 Assignment . . . . . . . . . . . . . . 59
Section 7.7 Directors' and Officers' Insurance;
Indemnity . . . . . . . . . . . . . . . 59
Section 7.8 Non-Survival of Representations and
Warranties . . . . . . . . . . . . . . 61
Section 7.9 Entire Agreement; No Third Party
Beneficiaries . . . . . . . . . . . . . 61
Section 7.10 Governing Law . . . . . . . . . . . . . 61
Section 7.11 Counterparts . . . . . . . . . . . . . 62
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EXHIBITS AND SCHEDULES
Schedule A Cash Flow Requirements
Schedule B Maximum Permitted RCPI Liabilities
Attachment 1 - Other Liabilities
Exhibit A Form of Certificate of Incorporation
Exhibit B Form of Release
Exhibit C Investor Commitments
RCPI Disclosure Schedule
Section 3.1(b)(ii) Capitalization
Section 3.1(c)(iii) Leases with Nondisturbance
Agreements
Section 3.1(c)(v) Subsidiaries
Section 3.1(e) Investigation and Reviews
by Governmental Entities
Section 3.1(f)(i) RCPI Governmental Approvals
Section 3.1(f)(ii) RCPI Required Consents
Section 3.1(h) Litigation
Section 3.1(i)(ii) Taxes and Related Tax
Matters
Section 3.1(j) Certain Agreements
Section 3.1(k) Employee Benefits
Section 3.1(m) Contracts
Section 3.1(n) Absence of Certain Changes
or Events
Section 3.1(x) Insurance
Section 4.2(b)(C) Bonuses, Etc.
Section 4.2(b)(K) Waivers, Etc.
Section 5.2(h) Environmental Matters
P&S Disclosure Schedule
Section 3.2(c)(i) Government Approvals;
Required Consents
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of
November 7, 1995, among ROCKEFELLER CENTER PROPERTIES, INC., a
Delaware corporation ("RCPI"), WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V, a Delaware limited partnership
("Whitehall"), ROCKPROP, L.L.C., a Delaware limited liability
company ("Rockprop"), DAVID ROCKEFELLER ("Rockefeller"), EXOR
GROUP S.A., a Luxembourg investment holding company ("Exor"),
TROUTLET INVESTMENTS CORPORATION, a British Virgin Islands
private company ("Troutlet"), RCPI HOLDINGS INC., a Delaware
corporation ("Parent"), RCPI MERGER INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub").
Whitehall, Rockprop, Rockefeller, Exor and Troutlet are
sometimes referred to herein collectively as the "Investors"
and individually as an "Investor." (Capitalized terms used
herein and not otherwise defined herein shall have the
meanings ascribed thereto in Section 7.1.)
WHEREAS, RCPI owns a $1.3 billion loan secured by
a mortgage on property in New York, New York, commonly known
as "Rockefeller Center," which is owned by Rockefeller Center
Properties ("RCP") and RCP Associates ("RCPA" and together
with RCP, the "Borrower"), each a New York partnership under
the control of Rockefeller Group, Inc., a New York corporation
("RGI");
WHEREAS, the Borrower has filed for protection
under Chapter 11 of the Bankruptcy Code in proceedings (the
"Borrower's Chapter 11 Case") pending in the United States
Bankruptcy Court for the Southern District of New York
(Case Nos. 95B42088 and 95B42089), has stopped making payments
under the 1985 Loan Agreement and is consequently in default
thereunder;
WHEREAS, the Board of Directors of RCPI has
determined that the merger of Sub with and into RCPI (the
"Merger") on the terms and subject to the conditions set forth
in this Agreement would be fair to, and in the best interests
of, RCPI's stockholders, and the Board of Directors of RCPI
has approved and adopted this Agreement and has approved the
Merger and the other transactions contemplated hereby;
WHEREAS, the Board of Directors of each of Parent
and Sub has determined that the Merger on the terms and
subject to the conditions set forth in this Agreement would be
fair to, and in the best interests of, its stockholders, and
the Board of Directors of each of Parent and Sub has approved
and adopted this Agreement and has approved
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the Merger and the other transactions contemplated hereby; and
WHEREAS, each of RCPI, the Investors, Parent and
Sub wish to make certain representations, warranties and
agreements in connection with the Merger and to prescribe
various conditions to the Merger.
NOW, THEREFORE, in consideration of the premises
and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Merger. Upon the terms and subject
to the conditions set forth in this Agreement, and in accordance
with the Delaware General Corporation Law (the "DGCL"), Sub shall
be merged with and into RCPI at the Effective Time. Upon and after
the Effective Time, the separate corporate existence of Sub shall
cease and RCPI shall be the surviving corporation in the
Merger (the "Surviving Company"). In accordance with the
DGCL, all of the rights, privileges, powers, immunities,
purposes and franchises of RCPI and Sub shall vest in the
Surviving Company, and all of the debts, liabilities,
obligations and duties of RCPI and Sub shall become the debts,
liabilities, obligations and duties of the Surviving Company.
Section 1.2 Closing. The closing of the Merger
(the "Closing") will take place at the offices of Paul, Weiss,
Rifkind, Wharton & Garrison in New York City at 10:00 a.m. on
the fifth Business Day following the date on which the
conditions set forth in Article 5 (other than the delivery of
the certificates of RCPI and Parent referred to therein) have
been satisfied or waived by the party entitled to the benefit
of such conditions, or at such other place, time and date as
Parent and RCPI may agree. The date on which the Closing
occurs is referred to herein as the "Closing Date."
Section 1.3 Effective Time. On the Closing Date
(or on such other date as Parent and RCPI may agree), Parent,
Sub and RCPI shall cause a Certificate of Merger (the
"Certificate of Merger") to be executed and filed with the
Secretary of State of the State of Delaware in accordance with
the relevant provisions of the DGCL and shall make all other
filings or recordings required under the DGCL. The Merger
shall become effective at such time as the Certificate of
Merger is duly filed with the Secretary of State of the State
of Delaware, or at such later time as is specified in the
Certificate of Merger (the "Effective Time").
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Section 1.4 Certificate of Incorporation and By-
laws. The Restated Certificate of Incorporation of RCPI shall
be amended and restated as of the Effective Time (or, at the
election of Parent, immediately following the Effective Time
Parent shall amend and restate the Restated Certificate of
Incorporation) to be substantially in the form attached hereto
as Exhibit A and as so amended and restated shall be the
Certificate of Incorporation of the Surviving Company until
thereafter changed or amended as provided therein or by
applicable Law. The By-laws of Sub at the Effective Time
shall be the By-laws of the Surviving Company until thereafter
changed or amended as provided therein or by applicable Law.
Section 1.5 Directors and Officers. The direc-
tors and officers of Sub at the Effective Time shall be the
directors and officers of the Surviving Company and shall hold
office until their respective successors are duly elected or
appointed and qualified or until their earlier death,
resignation or removal in accordance with the Certificate of
Incorporation and By-laws of the Surviving Company.
ARTICLE 2
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF RCPI AND SUB; PAYMENT FOR SHARES
Section 2.1 Effect on Capital Stock. At the Effective
Time, by virtue of the Merger and without any action on the part
of the holder of any shares of common stock, par value $.01 per
share, of RCPI ("Common Stock") or the holder of any shares of common
stock, par value $.01 per share, of Sub ("Sub Common Stock"):
(a) Conversion of Shares of Common Stock. Each
issued and outstanding share of Common Stock (other than
(i) shares of Common Stock held by RCPI or any of its
Subsidiaries as treasury shares, (ii) any shares of Common
Stock held by Parent or any of its Subsidiaries (including
Sub) and (iii) any Dissenting Shares (as defined below)) shall
be converted into the right to receive $8.00 per share net in
cash (the "Merger Consideration"), payable to the holder
thereof upon surrender of the certificate formerly
representing such shares in accordance with Section 2.2,
without interest thereon, less any required withholding taxes.
Each such share of Common Stock shall cease to be outstanding
and shall automatically be canceled and retired and shall
cease to exist, and each holder of a certificate formerly
representing any such shares of Common Stock shall cease to
have any rights with respect thereto, except the right to
receive the Merger Consideration to be paid in consideration
therefor upon surrender of such certificate in accordance with
Section 2.2, without interest thereon, less any required with-
holding taxes.
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(b) Cancellation of Common Stock Owned by RCPI,
Parent and Sub. Each share of Common Stock that is owned by,
or by any Subsidiary of, RCPI or by Parent or any Subsidiary
of Parent (including Sub) shall automatically be canceled and
retired and shall cease to exist, and no consideration shall
be delivered in exchange therefor.
(c) Conversion of Shares of Sub Common Stock.
Each share of Sub Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted
into and become one validly issued, fully paid and non-
assessable share of common stock, par value $.01 per share, of
the Surviving Company.
Section 2.2 Payment for Common Stock.
(a) Exchange Agent. Prior to the Effective
Time, Parent shall designate a bank or trust company reason-
ably acceptable to RCPI to act as exchange agent in the Merger
(the "Exchange Agent"). At or prior to the Effective Time,
Parent or Sub shall deposit with the Exchange Agent the funds
necessary to make the payments contemplated by Section 2.1(a)
hereof (the "Exchange Fund").
(b) Payment Procedures. As soon as reasonably
practicable after the Effective Time, the Surviving Company
shall instruct the Exchange Agent to mail to each holder of
record of a certificate or certificates that immediately prior
to the Effective Time represented outstanding shares of Common
Stock (collectively, the "Certificates") whose shares were
converted into the right to receive the Merger Consideration
pursuant to Section 2.1(a), (i) a letter of transmittal (which
shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall
be in such form and have such other provisions as the
Surviving Company may reasonably specify) and
(ii) instructions for use in effecting the surrender of the
Certificates in exchange for payment of the Merger
Consideration. Upon surrender of a Certificate for cancella-
tion to the Exchange Agent, together with such letter of
transmittal, duly executed, and such other documents as
reasonably may be required by the Exchange Agent, and
acceptance thereof by the Exchange Agent, each holder of a
Certificate shall receive in exchange therefor the Merger
Consideration specified in Section 2.1(a) hereof, without
interest thereon, less any required withholding taxes, and the
Certificate so surrendered shall forthwith be canceled. The
Exchange Agent shall accept such Certificates upon compliance
with such reasonable terms and conditions as the Exchange
Agent may impose to effect an orderly exchange thereof in
accordance with normal exchange practices. After the
Effective Time, there shall be no further transfer on the
books and records of RCPI or its transfer agent of
Certificates, and if Certificates are presented to RCPI for
transfer, they shall be canceled against payment of the
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<PAGE> 5
Merger Consideration as herein provided. If any payment of
Merger Consideration is to be made to a Person other than the
Person in whose name the Certificate surrendered for exchange
is registered, it shall be a condition of such payment that
the Certificate so surrendered shall be properly endorsed,
with the signature guaranteed, or otherwise in proper form for
transfer and that the Person requesting such payment shall pay
any transfer or other taxes required by reason of the payment
to a Person other than the registered holder of the Certif-
icate surrendered, or establish to the satisfaction of the
Surviving Company that such tax has been paid or is not
applicable. Until surrendered as contemplated by this
Section 2.2, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to
receive upon such surrender the Merger Consideration, without
interest thereon, less any required withholding taxes.
(c) Further Ownership Rights in Common Stock.
The Merger Consideration paid upon the surrender for exchange
of Certificates in accordance with the terms of this Article 2
shall be deemed to have been paid in full satisfaction of all
rights pertaining to the shares of Common Stock theretofore
represented by such Certificates. If, after the Effective
Time, Certificates are presented to the Surviving Company or
the Exchange Agent for any reason, they shall be canceled and
exchanged as provided in this Article 2.
(d) Termination of Exchange Fund. Any portion
of the Exchange Fund that remains undistributed to the former
stockholders of RCPI for six months after the Effective Time
shall be delivered to the Surviving Company upon demand, and
any former stockholders of RCPI who have not theretofore
complied with this Article 2 shall thereafter look only to the
Surviving Company for payment of their claim for any Merger
Consideration, without interest thereon, less any required
withholding taxes.
(e) No Liability. None of Parent, Sub, RCPI or
the Exchange Agent shall be liable to any Person in respect of
any Merger Consideration delivered to a public official
pursuant to any applicable abandoned property, escheat or
similar law.
Section 2.3 Dissenting Shares. Notwithstanding
anything in this Agreement to the contrary, shares of Common
Stock outstanding immediately prior to the Effective Time held
by a holder (if any) who is entitled to demand, and who
properly demands, appraisal for such shares in accordance with
Section 262 of the DGCL ("Dissenting Shares") shall not be
converted into the right to receive the Merger Consideration
unless such holder fails to perfect or otherwise loses such
holder's right to appraisal, if any. If, after the Effective
Time, such holder fails to perfect or loses any such right to
appraisal, such shares shall be treated as if they had been
converted as of the Effective Time into the
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right to receive the Merger Consideration, without interest
thereon, less any required withholding taxes. RCPI shall give
prompt notice to Parent of any demands received by RCPI for
appraisal of shares of Common Stock, and Parent shall have the
right to participate in and direct all negotiations and
proceedings with respect to such demands. Except with the
prior written consent of Parent, RCPI shall not make any
payment with respect to, or settle or offer to settle, any
such demands.
Section 2.4 Treatment of Warrants and SARs.
As of the Effective Time, each Warrant and SAR
issued and outstanding immediately prior to the Effective Time
shall automatically be canceled and retired and shall cease to
exist, and no consideration shall be delivered in exchange
therefor.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of RCPI.
RCPI represents and warrants to each of the Investors, Parent and
Sub as follows:
(a) Organization, Standing and Corporate Power.
Each of RCPI and each of its Subsidiaries is duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization with all requisite power and
authority to engage in its business as currently conducted and
to own the assets and properties currently owned by it. Each
of RCPI and each of its Subsidiaries is licensed or qualified
to do business and is in good standing as a foreign
corporation in each jurisdiction in which such qualification
is necessary or advisable for the carrying out of its
business. True, correct and complete copies of the
certificate of incorporation and by-laws of each of RCPI and
each of its Subsidiaries as in effect on the date hereof, and
all minutes of all meetings (or written consents in lieu of
meetings) of the Board of Directors (and all committees
thereof) and stockholders of RCPI shall have been made
available to Parent on or prior to the Closing.
(b) Capitalization.
(i) The authorized capital stock of RCPI
consists of 150,000,000 shares of Common Stock, par value $.01
per share, 38,260,704 of which are currently issued and
outstanding. All of such shares of Common Stock (A) are
validly issued, fully paid and nonassessable and (B) are free
of preemptive rights. There are no shares of capital stock of
RCPI held in the treasury of RCPI, and except in respect of
the outstanding Warrants and SARs, RCPI's Dividend
Reinvestment Plan and the RCPI Indenture, no shares of capital
stock of RCPI are currently reserved for
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<PAGE> 7
issuance for any purpose or upon the occurrence of any event
or condition.
(ii) Except as set forth on
Section 3.1(b)(ii) of the RCPI Disclosure Schedule, no shares
of capital stock or other equity securities of RCPI are issued
or outstanding or reserved for any other purpose, and there
are no subscriptions, options, warrants, calls, rights,
convertible securities or other agreements or commitments of
any character to which RCPI is a party relating to the issued
or unissued capital stock or other equity securities or
ownership interests of RCPI (or the purchase, sale, issuance,
repurchase, redemption, acquisition, transfer, disposition,
holding or voting thereof).
(iii) Except as provided in
Article ELEVENTH of the Restated Certificate of Incorporation
of RCPI, RCPI has no outstanding bonds, debentures, notes or
other obligations whose holders have the right to vote with
the holders of Common Stock on any matter.
(c) SEC Documents; Financial Statements;
Liabilities; Etc.
(i) RCPI has made available to Parent a
true and complete copy of each form, report, schedule,
registration statement and definitive proxy statement filed by
RCPI with the SEC since January 1, 1992 (as such documents
have since the time of their filing been amended or
supplemented, the "RCPI SEC Documents"), which are all the
documents (other than preliminary material) that RCPI was
required to file with the SEC since such date. As of their
respective dates, the RCPI SEC Documents (other than
preliminary material) complied in all material respects with
the requirements of the Securities Act or the Exchange Act, as
applicable, and none of the RCPI SEC Documents (including all
financial statements included therein and exhibits and
schedules thereto and documents incorporated by reference
therein) contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(ii) The financial statements (including
the notes thereto) of RCPI included in the RCPI SEC Documents
comply as to form in all material respects with the applicable
accounting requirements and with the rules and regulations of
the SEC with respect thereto, have been prepared in accordance
with GAAP consistently applied (except as may be indicated in
the notes thereto) and present fairly in accordance with GAAP
the financial position of RCPI as of the dates thereof and the
results of operations and cash flows of RCPI for the periods
then ended (subject, in the case of unaudited financial
statements, to normal year-end adjustments).
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(iii) RCPI has good title to all of its
real property and material assets, including, without
limitation, the Mortgage Note and the Mortgage, free and clear
of all Liens (other than Permitted Liens and the restrictions
on transfer contained in the 1985 Loan Agreement). RCPI has
not granted to any Person (other than any holder of a
Permitted Lien) any rights, recorded or unrecorded, in the
Mortgage or the Mortgage Note. To RCPI's knowledge, no
Person, other than RCPI or any holder of a Permitted Lien, has
any right or option, recorded or unrecorded, to acquire the
Property or any portion thereof or interest therein (except
for (x) presently existing rights to renew leases and to lease
additional space and (y) rights to renew leases and to lease
additional space under leases entered into in accordance with
the terms of this Agreement after the date hereof).
Section 3.1(c)(iii) of the RCPI Disclosure Schedule sets forth
or describes, as of the date hereof, each lease for space in
the Property in respect of which RCPI has entered into a
nondisturbance agreement, and RCPI has made available to
Parent all such nondisturbance agreements. The Mortgage is a
valid lien on all the Property and on the Lessor's interest in
all Leases (each as defined in the Mortgage), with a priority
in all material respects no less than its priority as of
September 19, 1985, except for any Permitted Liens and 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, and the execution
and delivery of Leases (as so defined) after the date of
recordation of the Assignment of Rents. Except for breaches
and defaults described on Section 3.1(c)(iii) of the RCPI
Disclosure Schedule, to the knowledge of RCPI, no Person has
materially breached any term of the Mortgage or the Mortgage
Note, and no circumstance exists that constitutes (with or
without notice or lapse of time or both) a default under the
Mortgage or the Mortgage Note. The outstanding aggregate
principal amount of the Mortgage Note is $1,300,000,000.
(iv) RCPI is the beneficiary under the
Title Insurance and, subject to the Collateral Trust
Agreement, has the right to assign its rights under the Title
Insurance as provided for therein.
(v) Except as set forth on Sec-
tion 3.1(c)(v) of the RCPI Disclosure Schedule, RCPI does not
have (nor has it ever had) any direct or indirect
Subsidiaries, either wholly or partially owned, and RCPI does
not hold any direct or indirect economic, voting or management
interest in any Person or directly or indirectly own any
security issued by any Person.
(vi) Other than (A) the Combination
Agreement and (B) nondisturbance agreements with respect to
the leases set forth or described on Section 3.1(c)(iii) of
the RCPI Disclosure Schedule and nondisturbance agreements in
form reasonably satisfactory to Parent with respect to
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leases entered into in accordance with the terms of this
Agreement after the date hereof, RCPI has never been a party
to a merger or consolidation and has not otherwise assumed or
become liable for the obligations of any other Person.
(d) Authority. RCPI has all requisite
corporate power and authority to enter into this Agreement and
to perform its obligations hereunder and to consummate the
transactions contemplated hereby, subject in the case of the
Merger, to the approval of this Agreement by the stockholders
of RCPI in accordance with the DGCL. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of
RCPI, and no other corporate proceedings on the part of RCPI
are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby, subject in the case of the
Merger, to the approval of this Agreement by the stockholders
of RCPI and the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with
the DGCL. This Agreement has been duly and validly executed
and delivered by RCPI and constitutes a valid and binding
obligation of RCPI enforceable against RCPI in accordance with
its terms, subject in the case of the Merger, to the approval
of this Agreement by the stockholders of RCPI in accordance
with the DGCL, and except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization or similar laws affecting
the enforcement of creditors' rights generally and by
equitable limitations on the availability of specific
remedies.
(e) Compliance with Applicable Laws. Each of
RCPI and each of its Subsidiaries holds all material permits,
licenses, variances, exemptions, orders and approvals of all
Governmental Entities required in connection with the
operation of the businesses of RCPI and its Subsidiaries (the
"RCPI Permits"); RCPI and its Subsidiaries are in material
compliance with the terms of all RCPI Permits; and, except as
RCPI has previously disclosed in writing to Parent, the
businesses of RCPI and its Subsidiaries are not being
conducted in violation of any Law in any material respect. As
of the date of this Agreement, except as set forth on
Section 3.1(e) of the RCPI Disclosure Schedule, no investiga-
tion or review by any Governmental Entity with respect to RCPI
or any of its Subsidiaries is pending or, to the knowledge of
RCPI, threatened, nor to the knowledge of RCPI, has any Gov-
ernmental Entity indicated an intention to conduct the same.
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(f) Government Approvals; Required Consents.
(i) No material consent, approval or
authorization of, or declaration or filing with, or notice to,
any Governmental Entity on the part of RCPI is required in
connection with the execution or delivery by RCPI of this
Agreement, the consummation by RCPI of the transactions con-
templated hereby or compliance by RCPI with the provisions
hereof, other than (A) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware in
accordance with the DGCL, (B) filings with the SEC and any
applicable national securities exchange, (C) filings under
state securities or "Blue Sky" laws, (D) filings under the HSR
Act and (E) as otherwise set forth on Section 3.1(f)(i) of the
RCPI Disclosure Schedule (any such consents, approvals,
authorizations, declarations, filings or notices specified in
clauses (A) through (E) being referred to as the "RCPI
Governmental Approvals").
(ii) No consent, approval or action of, or
filing with, or notice to, any Person (other than a
Governmental Entity) is required in connection with the
execution or delivery by RCPI of this Agreement, consummation
by RCPI of the transactions contemplated hereby or compliance
by RCPI with the provisions hereof, other than (A) the
approval of this Agreement by the holders of the Common Stock
in accordance with the DGCL, (B) as set forth on
Section 3.1(f)(ii) of the RCPI Disclosure Schedule and (C) any
consent, approval, action, filing or notice that if not
obtained or made would not, individually and in the aggregate,
have a Material Adverse Effect on RCPI (any such consents,
approvals, actions, filings or notices specified in clauses
(A) and (B) being referred to as the "RCPI Required
Consents").
(g) Non-Contravention. The execution and
delivery of this Agreement by RCPI do not, and the consumma-
tion of the transactions contemplated hereby and compliance by
RCPI with the provisions hereof will not, (i) conflict with or
result in any violation of any provision of the Restated
Certificate of Incorporation or By-laws of RCPI; (ii) if the
RCPI Required Consents are obtained or given, as the case may
be, result in any violation or breach of, or result in a
modification of the effect of, or constitute (with or without
notice or lapse of time or both) a default under or give rise
to any right of termination, cancellation or acceleration
under any material Contract to which RCPI is a party or by or
to which it or any of its properties may be bound or subject,
or result in the creation of any Lien upon the properties of
RCPI, in each case pursuant to the terms of any such Contract;
(iii) if the RCPI Governmental Approvals are obtained, result
in any violation of any Law applicable to RCPI in any material
respect; or (iv) if the RCPI Governmental Approvals and the
RCPI Required Consents are obtained or given, as the case may
be, result in the violation, revocation or suspension of any
RCPI Permit.
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(h) Litigation. Except as set forth on
Section 3.1(h) of the RCPI Disclosure Schedule and except for
Permitted Litigations, there are no actions, suits, arbitra-
tions, regulatory proceedings or other litigation, proceedings
or governmental investigations pending or, to the knowledge of
RCPI, threatened against or affecting RCPI or any of its
Agents in their capacity as such, or any of RCPI's properties
or businesses. RCPI is not subject to any order, judgment,
decree, injunction, stipulation or consent order specifically
naming RCPI of any court or other Governmental Entity. RCPI
has not entered into any agreement to settle or compromise any
proceeding pending or threatened against it that has involved
any obligation other than the payment of money or for which
RCPI has any continuing obligation.
(i) Taxes and Related Tax Matters.
(i) For all taxable years from and after
the year in which RCPI was organized through the most recent
December 31, RCPI has been subject to taxation as a real
estate investment trust (a "REIT") under Subchapter M of the
Code and has satisfied all requirements to qualify as a REIT
for such years. In addition, assuming hypothetically that (i)
RCPI's taxable year in which the Merger occurs were to close
immediately prior to the Closing, and (ii) all recordkeeping
and notice requirements in respect of such year will be
complied with, then, without giving effect to the Merger, RCPI
will be for such hypothetical short year subject to taxation
as a REIT under Subchapter M of the Code and will satisfy all
requirements to qualify as a REIT for such year. RCPI is not
aware of any fact or circumstance that could reasonably be
expected to prevent it from continuing so to qualify until the
time immediately prior to the Closing (without giving effect
to the Merger).
(ii) Except as set forth on
Section 3.1(i)(ii) of the RCPI Disclosure Schedule or as would
not, individually and in the aggregate, have a Material
Adverse Effect on RCPI:
(A) All Taxes required to be paid on or before
the date hereof by or with respect to RCPI and its
Subsidiaries have been timely paid, and any Taxes required to
be paid by or with respect to RCPI and its Subsidiaries (or
any of them) after the date hereof and on or before the
Effective Time shall be timely paid.
(B) All Tax Returns required to be filed by or
with respect to RCPI or its Subsidiaries on or before the date
hereof have been timely filed. All Tax Returns required to be
filed by or with respect to RCPI or any of its Subsidiaries
after the date hereof and on or before the Effective Time
shall be prepared and timely filed in a manner consistent with
prior years and applicable Laws. No penalties or other
charges are or will become due with respect to the late filing
of any Tax Return of RCPI or any
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<PAGE> 12
of its Subsidiaries or payment of any Tax of RCPI or any of
its Subsidiaries required to be filed or paid on or before the
Effective Time.
(C) With respect to all Tax Returns filed by
or with respect to RCPI and any of its Subsidiaries, no audit
is in progress and no waiver or agreement for an extension of
time has been executed with respect to any date on which any
Tax Return was or is to be filed and no waiver or agreement
has been executed for the extension of time for the assessment
or payment of any Tax.
(D) There are no liens for Taxes upon the
assets of RCPI or any of its Subsidiaries except liens for
current Taxes not yet delinquent.
(E) RCPI has provided Parent copies of all
revenue agent reports and related schedules related to pending
Tax audits of RCPI or any of its Subsidiaries or any
predecessor thereof or any of its Subsidiaries. Neither RCPI
nor any of its Subsidiaries has received any notice of
deficiency, assessment or proposed deficiency or assessment
from any federal, state, local or foreign taxing authority,
and neither RCPI nor any of its Subsidiaries has been advised
by any such authority that any such notice is forthcoming.
(F) RCPI has not filed a consent to the
application of Section 341(f) of the Code.
(G) Neither RCPI nor any of its Subsidiaries
has made or become obligated to make, or will become obligated
as a result of any event connected with any transaction
contemplated herein to make, any "excess parachute payment"
as defined in Section 280G of the Code.
(H) Neither RCPI nor any of its Subsidiaries
is subject to any joint venture, partnership or other
arrangement or contract that is treated as a partnership for
Federal income tax purposes.
(j) Certain Agreements. Except as set forth on
Section 3.1(j) of the RCPI Disclosure Schedule and except for
this Agreement, as of the date of this Agreement, neither RCPI
nor any of its Subsidiaries is a party to any oral or written
plan, including any stock option plan, stock appreciation
right plan, restricted stock plan or stock purchase plan, any
of whose benefits will be increased, or the vesting of whose
benefits will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of
any of whose benefits will be calculated on the basis of any
of the transactions contemplated by this Agreement. RCPI has
made available to Parent copies of the plans listed on Section
3.1(j) of the RCPI Disclosure Schedule.
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<PAGE> 13
(k) Employee Benefits.
(i) Except as set forth on Section 3.1(k)
of the RCPI Disclosure Schedule, neither RCPI nor any of its
Subsidiaries is a party to or participates in or has any
liability or contingent liability with respect to (A) any
"employee welfare benefit plan" or "employee pension benefit
plan" as those terms are respectively defined in sections 3(1)
and 3(2) of ERISA (collectively, the "Plans"); (B) any
retirement or deferred compensation plan, incentive
compensation plan, stock plan, unemployment compensation plan,
vacation pay, severance pay, bonus or benefit arrangement,
insurance or hospitalization program or any other fringe
benefit arrangements for any current or former Agent, whether
pursuant to contract, arrangement, custom or informal
understanding, that does not constitute an "employee benefit
plan" (as defined in section 3(3) of ERISA); or (C) any
employment, consulting or similar agreement. RCPI has made
available to Parent true and complete copies of all plans,
arrangements and agreements set forth on Section 3.1(k) of the
RCPI Disclosure Schedule.
(ii) Except as set forth on Section 3.1(k)
of the RCPI Disclosure Schedule, neither RCPI nor any of its
Subsidiaries contributes to, has contributed to, or has any
liability or contingent liability with respect to, any
multiemployer plan (as defined in section 3(37) of ERISA).
(iii) Except for violations or instances of
noncompliance or nonperformance specifically described on
Section 3.1(k) of the RCPI Disclosure Schedule, each of RCPI
and each of its Subsidiaries (A) is in compliance with and not
in default with respect to statutes, orders, rules and
regulations under ERISA and the Code applicable to any Plans
sponsored by RCPI; (B) has performed all obligations required
to be performed by it with respect to such Plans; (C) is not
in violation, and has no knowledge of any default or violation
of any third party, in respect of any of the Plans; and
(D) has properly and timely made all required contributions,
has fully funded on a termination basis the Plans and has
maintained and operated each Plan intended to qualify under
section 401(a) of the Code in compliance with the requirements
of section 401(a) of the Code (and has maintained and operated
any related trust in compliance with the requirements of
section 501(a) of the Code.)
(iv) Except pursuant to any agreement set
forth on Section 3.1(k) of the RCPI Disclosure Schedule or in
the RCPI SEC Documents, the consummation of the transactions
contemplated by this Agreement will not, without additional
discretionary action by RCPI, any of RCPI's Subsidiaries,
Parent or Sub with respect to current or former Agents of
RCPI, entitle any individual to severance pay or accelerate
the time of payment or vesting of, increase the amount of, or
satisfy a condition to the compensation due to any individual.
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<PAGE> 14
(l) The "Rockefeller Center" Name. RCPI has
not sold, conveyed, assigned, pledged or otherwise transferred
or disposed of any rights in or to the "Rockefeller Center"
name or any variation thereof, nor has RCPI granted to any
Person any license or any other right to use the "Rockefeller
Center" name or any variation thereof. The foregoing shall
not imply that RCPI has or has had any such rights.
(m) Contracts. Section 3.1(m) of the RCPI
Disclosure Schedule lists (i) all the material Contracts to
which RCPI or any of its Subsidiaries is a party or by which
RCPI or any of its Subsidiaries is bound or to which any of
the assets or properties of RCPI or any of its Subsidiaries is
subject and (ii) any material licenses, certificates or
permits that RCPI or any of its Subsidiaries holds or to which
RCPI or any such Subsidiary is subject. RCPI has made
available true and complete copies of each document listed on
Section 3.1(m) of the RCPI Disclosure Schedule and a written
description of each oral arrangement so listed. Except for
defaults, breaches or violations described on Section 3.1(m)
or Section 3.1(c)(iii) of the RCPI Disclosure Schedule,
neither RCPI nor any of its Subsidiaries is, and, to the
knowledge of RCPI, no other parties thereto are, in default,
breach or violation of any such contracts. Except for the
Combination Agreement and the Investment Agreement, RCPI is
not a party to any agreement, arrangement or understanding of
any kind with Samuel Zell ("Zell"), any of Zell's Affiliates
or any party to the Combination Agreement or the Investment
Agreement.
(n) Absence of Certain Changes or Events.
Except for any change, occurrence or circumstance described on
Section 3.1(n) of the RCPI Disclosure Schedule and except as
contemplated by this Agreement, since December 31, 1994, RCPI
has conducted its businesses only in the ordinary course of
business consistent with past practices, and as of the date of
this Agreement, there has not been (i) unless and to the
extent required to meet the qualification rules for a REIT
under Section 857(a) of the Code or to avoid any excise tax
under Section 4981 of the Code, any declaration, setting aside
or payment of any dividend or other distribution (whether in
cash, stock or property) with respect to any of RCPI's capital
stock or any return of any capital or other distribution of
assets to stockholders of RCPI; (ii) any investment by RCPI
either by the purchase of any property or assets or by any
acquisition (by merger, consolidation or acquisition of stock
or assets) of any corporation, partnership or other business
organization or division thereof; (iii) any sale, disposition
or other transfer of assets or properties of RCPI in excess of
$250,000 individually or $1,000,000 in the aggregate (other
than the repayment of Debt or other liabilities as required by
the agreements with respect thereto and subject to the terms
of RCPI's other agreements as in effect as of the date
hereof); or (iv) any change, occurrence or circumstance of any
character (whether or not in the ordinary course of
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<PAGE> 15
business) that, individually or in the aggregate, has had or
would have a Material Adverse Effect on RCPI. For the
purposes of the foregoing, the phrase "ordinary course of
business consistent with past practices" shall include changes
in the ordinary course of business of RCPI instituted as a
result of, and shall take into account the effects of, the
Borrower's Chapter 11 Case (it being understood that such
construction shall not relieve RCPI of any of its obligations
under this Agreement).
(o) Recommendation of Board of Directors; Vote
Required. The Board of Directors of RCPI has unanimously
approved this Agreement, the Merger and the other
transactions contemplated hereby and, subject to Section
6.1(g) hereof, has determined to recommend to its stockholders
(the "Recommendation") that its stockholders vote in favor of
the adoption and approval of this Agreement. The provisions
of clause (a)(ii) of paragraph A of Article EIGHTH of the
Restated Certificate of Incorporation of RCPI have been
satisfied. Assuming that the holders of at least 62.5% of the
Warrants and SARs approve this Agreement pursuant to the sixth
paragraph of the December 1994 Letter, the affirmative vote of
a majority of the votes that the holders of the outstanding
shares of Common Stock are entitled to cast with respect to
the adoption and approval of this Agreement is the only vote
of the holders of any class or series of the capital stock of
RCPI necessary to approve the Merger and the other
transactions contemplated hereby.
(p) Opinion of Financial Advisor. RCPI has
received the opinion of PaineWebber Incorporated, dated the
date hereof, to the effect that, as of such date, the Merger
Consideration is fair to the RCPI stockholders from a
financial point of view, and such opinion has not been
withdrawn.
(q) Accuracy of Information Supplied. Neither
this Agreement nor any schedule, exhibit, written statement,
list, document or certificate furnished or to be furnished by
or on behalf of RCPI to Parent, Sub or any of their Agents or
Affiliates in connection with this Agreement or any of the
transactions contemplated hereby, taken as a whole, contains
or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the
circumstances in which they are made, not misleading.
(r) Proxy Statement.
(i) On the date the Proxy Statement is
first mailed to RCPI's stockholders, at the time of the
Stockholders' Meeting (as hereinafter defined) and at the
Effective Time, the Proxy Statement will comply in all
material respects with the requirements of the Exchange Act
and will not contain any statement that, at such time and in
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<PAGE> 16
light of the circumstances under which it is made, is false or
misleading with respect to any material fact, or omits to
state any material fact required to be stated therein or
necessary to make the statements therein not false or
misleading or necessary to correct any statement in any
earlier communication with respect to the solicitation of
proxies for the Stockholders' Meeting that shall have become
false or misleading; provided, however, that the
representations and warranties in this subsection shall not
apply to statements in or omissions from the Proxy Statement
made in reliance upon and in conformity with information
furnished to RCPI in writing by or on behalf of Parent, Sub or
any Investor (or any Affiliate of any Investor) expressly for
use in the Proxy Statement.
(ii) The accountants who certified the
financial statements and supporting schedules of RCPI included
(or incorporated by reference) or to be included (or
incorporated by reference) in the Proxy Statement are
independent public accountants as required by the Securities
Act.
(iii) The financial statements of RCPI
included (or incorporated by reference) or to be included (or
incorporated by reference) in the Proxy Statement present or
will present fairly the financial position of RCPI and its
consolidated Subsidiaries as of the dates indicated and the
results of their operations for the periods specified in
accordance with GAAP (subject, in the case of unaudited
financial statements, to normal year-end adjustments), and the
supporting schedules included (or incorporated by reference)
or to be included (or incorporated by reference) in the Proxy
Statement present or will present fairly the information
required to be stated therein in accordance with GAAP. Except
as otherwise stated in the Proxy Statement, such financial
statements have been or will have been prepared in conformity
with GAAP consistently applied.
(s) Brokers or Finders. Except as otherwise
disclosed herein or in the Schedules attached hereto, no
broker, finder or investment banker (other than PaineWebber
Incorporated) is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on
behalf of RCPI. RCPI has heretofore made available to Parent
a complete and correct copy of all agreements between RCPI and
PaineWebber Incorporated pursuant to which such firm would be
entitled to any payment relating to the transactions
contemplated hereby.
(t) Government Regulation. RCPI 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, RCPI is not (i) an "investment
company" registered or required to be registered under the
Investment Company Act of 1940, as
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<PAGE> 17
amended, and is not controlled by such a company, or (ii) a
"holding company," or a "subsidiary company" or a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(u) No Pending Condemnation or Eminent Domain.
RCPI has no knowledge of any pending or threatened
condemnation or eminent domain proceedings that would affect
the Property.
(v) Subordination of Certain Leases. To the
knowledge of RCPI, each of the lease, dated July 1, 1982,
between RCP and Radio City Music Hall Productions, Inc., and
the lease, dated July 15, 1985, between RCP and Rockefeller
Center Management Corporation ("RCMC") relating to the parking
garage located at the Property, if and as each such lease has
been amended and supplemented, is subject and subordinate to
the Mortgage, and none of the tenants under such leases has
any rights of nondisturbance under such leases. RCPI has not
entered into any agreement pursuant to which RCPI has agreed
to recognize the rights of Rockefeller Center
Telecommunications Corporation ("RCTC") under that certain
Franchise Agreement, dated September 7, 1985, for the
Provision of Telecommunications Services between RCMC and
RCTC, as it may be amended, notwithstanding a foreclosure on
the Property pursuant to the Mortgage.
(w) No Insolvency Proceeding. No proceeding
for relief under the Bankruptcy Code or for similar relief
under the laws of any state has been commenced by or against
RCPI.
(x) Insurance. Section 3.1(x) of the RCPI
Disclosure Schedule sets forth a list of all policies or
binders of fire, liability, product liability and other
insurance held by or on behalf of RCPI or any of its Sub-
sidiaries (the "Insurance Policies"), and a brief description
of each Insurance Policy, including (i) the amount of any
deductible under such Insurance Policy, (ii) a description of
each pending claim under such Insurance Policy of more than
$50,000, (iii) the aggregate amounts paid out under such
Insurance Policy through the date hereof and (iv) the
aggregate limit, if any, of the insurer's liability under such
Insurance Policy. The Insurance Policies insure against risk
and liabilities to the extent and in the manner deemed
appropriate and sufficient by RCPI. RCPI and its Subsidiaries
are not in default with respect to any provision contained in
any Insurance Policy and have not failed to give any notice or
present any claim under any such Insurance Policy in a due and
timely fashion. Except with respect to any Insurance Policies
that are to be replaced as indicated on Section 3.1(x) of the
RCPI Disclosure Schedule, RCPI and its Subsidiaries have
received no notice of cancellation or non-renewal of, or
denial of coverage under, any Insurance Policy. RCPI has made
available to Parent copies of each Insurance Policy.
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<PAGE> 18
Section 3.2 Representations and Warranties of
Parent, Sub, Investors and GSMC. Each Investor represents and
warrants to RCPI (with respect to itself and each of Parent
and Sub), Parent represents and warrants to RCPI (with respect
to itself and Sub) and each of Sub and Goldman Sachs Mortgage
Company ("GSMC") represents and warrants (with respect to
itself) (provided that in the case of GSMC, all references to
this Agreement throughout this Section 3.2 shall mean only the
Sections of this Agreement by which GSMC is bound as indicated
on the signature pages hereof) as follows:
(a) Organization, Standing and Corporate Power.
Each of Parent, Sub, GSMC and each of the Investors (other
than Rockefeller) is a corporation, partnership or limited
liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization.
(b) Authority. Each of Parent, Sub, GSMC and
each of the Investors has all requisite power and authority to
enter into this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary action, if any,
on the part of each of Parent, Sub, GSMC and each of the
Investors and no other organizational proceedings on the part
of any of Parent, Sub, GSMC or any of the Investors are
necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by each of Parent,
Sub, GSMC and each of the Investors and constitutes a valid
and binding obligation of each of Parent, Sub, GSMC and each
of the Investors enforceable against each of Parent, Sub, GSMC
and each of the Investors in accordance with its terms, except
as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, fraudulent transfer,
reorganization or similar laws affecting the enforcement of
creditors' rights generally and by equitable limitations on
the availability of specific remedies.
(c) Government Approvals; Required Consents.
(i) No material consent, approval or
authorization of, or declaration or filing with, or notice to,
any Governmental Entity on the part of Parent, Sub, GSMC or
any Investor is required in connection with the execution or
delivery by any of them of this Agreement, or the consummation
by Parent, Sub, GSMC or any Investor of the transactions
contemplated hereby or compliance by Parent, Sub, GSMC or any
Investor with the provisions hereof, other than (A) the filing
of the Certificate of Merger with the Secretary of State of
the State of Delaware in accordance with the DGCL, (B) filings
under the HSR Act and (C) as
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<PAGE> 19
otherwise set forth in Section 3.2(c)(i) of the P&S Disclosure
Schedule (any such consents, approvals, authorizations,
declarations, filings or notices specified in clauses (A)
through (C) being referred to as "P&S Governmental
Approvals").
(ii) No material consent, approval or
action of, or filing with, or notice to, any Person (other
than a Governmental Entity) is required in connection with the
execution or delivery by Parent, Sub, GSMC or any Investor of
this Agreement, the consummation by Parent, Sub, GSMC or any
Investor of the transactions contemplated hereby or compliance
by Parent, Sub, GSMC or any Investor with the provisions
hereof, other than those that if not obtained or made would
not, individually and in the aggregate, have a material
adverse effect on the ability of Parent, Sub, GSMC or such
Investor, as the case may be, to consummate the Merger or the
other transactions contemplated hereby.
(d) Non-Contravention. The execution and
delivery of this Agreement by each of Parent, Sub, GSMC and
each of the Investors do not, and the consummation of the
transactions contemplated hereby and compliance by each of
Parent, Sub, GSMC and each of the Investors with the
provisions hereof will not (i) conflict with or result in any
violation of any provision of the certificate of incorporation
or by-laws or equivalent organizational documents, in each
case as amended to date, of Parent, Sub, GSMC or any Investor
(other than Rockefeller); (ii) result in any violation or
breach of, or result in a modification of the effect of, or
constitute (with or without notice or lapse of time or both) a
default under or give rise to any right of termination,
cancellation or acceleration under, any material Contract to
which Parent, Sub, GSMC or any Investor is a party or by or to
which any of them or any of their properties may be bound or
subject, or result in the creation of any Lien upon the
properties of Parent, Sub, GSMC or any Investor in each case
pursuant to the terms of any such Contract; or (iii) if the
P&S Governmental Approvals are obtained, result in any viola-
tion of any Law applicable to Parent, Sub, GSMC or any
Investor in any material respect.
(e) Financing. Each Investor has, and at the
Closing will have, available to it all the funds necessary to
satisfy its obligation under Section 4.3(b).
(f) Proxy Statement. The information supplied
by each of Parent, Sub and each of the Investors for inclusion
in the Proxy Statement will not, on the date the Proxy
Statement is first mailed to stockholders of RCPI, at the time
of the Stockholders' Meeting and at the Effective Time,
contain any statement that, at such time and in light of the
circumstances under which it is made, is false or misleading
with respect to any material fact, or omits to state any
material fact required to be stated therein or necessary in
order to make the statements therein not false
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<PAGE> 20
or misleading or necessary to correct any statement in any
information previously supplied by any of Parent, Sub or any
Investor for inclusion in the Proxy Statement that shall have
become false or misleading.
(g) Brokers or Finders. No broker, finder or
investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on
behalf of Parent, Sub or any Investor.
(h) No Agreement. As of the date hereof,
there is no agreement between any of the Investors, Parent,
Sub or any of their respective Affiliates, on the one hand,
and Mitsubishi Estates Corporation, RGI or any of their
respective Affiliates, on the other hand, with respect to the
transactions contemplated hereby.
ARTICLE 4
COVENANTS
Section 4.1 Mutual Covenants of RCPI, Parent,
Sub, GSMC and Each Investor. With respect to itself only,
each of RCPI, each of the Investors, Parent, Sub and, with
respect to Sections 4.1(a) and (b) only, GSMC agrees that,
except as expressly contemplated or permitted by this Agreement,
it shall comply with the following covenants:
(a) Satisfaction of Conditions; Additional
Agreements. Subject to the terms and conditions of this
Agreement, each party hereto agrees to use its reasonable best
efforts to cause the conditions set forth in Article 5 of this
Agreement to be satisfied, and to take, or cause to be taken,
all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable Laws to
consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement, including
cooperating fully with the other parties, including by provi-
sion of information and making of all necessary filings in
connection with, among other things, the HSR Act.
(b) Confidentiality. From and after the date
hereof, each party hereto shall, and shall use its best
efforts to cause its Affiliates and its and their respective
Agents to, keep secret and hold in strictest confidence any
and all documents and information identified by any other
party as confidential and furnished to such first party
(whether before or after the date hereof) in connection with
the transactions contemplated hereunder, other than the
following: (i) information that has become generally
available to the public other than as a result of a disclosure
by such party, its Affiliates or its Agents; (ii) information
that has become available to such party or an Agent of such
party on a nonconfidential basis from a third party having, to
the knowledge of such party (after
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<PAGE> 21
reasonable inquiry), no obligation of confidentiality or other
legal or fiduciary obligation of secrecy to a party to this
Agreement and that has not itself, to the knowledge of such
party (after reasonable inquiry), received such information
directly or indirectly in breach of any such obligation; (iii)
information that is required to be disclosed by applicable Law
or pursuant to any listing agreement with, or the rules or
regulations of, any securities exchange on which securities of
such party or any such Affiliate are listed or traded; (iv)
disclosures made by any party as shall be reasonably necessary
in connection with obtaining the RCPI Required Consents; and
(v) disclosures required in connection with the Borrower's
Chapter 11 Case. If any party hereto is required to disclose
any such confidential information pursuant to applicable Law,
such party shall promptly notify each other party in writing,
which notification shall include the nature of the legal
requirement and the extent of the required disclosure, and
shall cooperate with each other party to preserve the
confidentiality of such information consistent with applicable
Law. In the event the transactions contemplated by this
Agreement are not consummated, each party hereto shall return
all materials in its possession containing confidential infor-
mation belonging to another party and shall not use any such
information for any purpose whatsoever.
(c) Publicity. Except as otherwise required by
applicable Law or the rules or regulations of any securities
exchange on which the securities of such party or any Affil-
iate of such party are listed or traded, no party shall issue
or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by
this Agreement without the consent of each other party, and in
any event, each party agrees that it shall give each other
party reasonable opportunity to review and comment upon any
such release or announcement prior to publication of the same.
(d) Advice of Breach. RCPI, on the one hand,
and Parent, on the other hand (the "notifying party"), shall
promptly notify the other in writing of any material breach of
any covenant hereunder by the notifying party (and, in the
case of Parent, by Sub, GSMC or any Investor) and of any event
occurring subsequent to the date of this Agreement of which
the notifying party becomes aware that renders any
representation or warranty of the notifying party (and, in the
case of Parent, of Sub, GSMC or any Investor) contained herein
untrue or inaccurate in any material respect. Information
provided to a party pursuant to this Section shall not be
deemed to cure any breach of any representation, warranty or
covenant of the notifying party (and, in the case of Parent,
of Sub, GSMC or any Investor) made in this Agreement.
Section 4.2 Covenants of RCPI. During the period
from the date of this Agreement and continuing until the
earlier of the Closing and the termination of this
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<PAGE> 22
Agreement in accordance with Section 6.1, RCPI agrees that,
except as expressly permitted by this Agreement, or to the
extent that Parent shall otherwise consent in writing:
(a) Access to Information and Facilities. RCPI
shall give Parent and its Agents reasonable access during
normal business hours to all of the facilities, properties,
books, Contracts, commitments and records of RCPI and shall
make the officers of RCPI available to Parent and its Agents
as Parent shall from time to time reasonably request pursuant
to reasonable notice. RCPI shall make available to Parent and
its Agents (x) all financial statements, rent rolls,
environmental reports, engineering reports and other similar
documents relating to the Property upon receipt thereof from
the Borrower (or, with respect to any such documents received
prior to the date hereof, promptly following the date hereof),
(y) all filings with the SEC made by or relating to RCPI as
promptly as reasonably practicable after filing, in the case
of filings made by RCPI, or receipt, in the case of filings
made by unrelated third parties, and (z) all information
concerning RCPI that Parent and its Agents may reasonably
request (provided that such information shall not be required
to include any information related to the consideration by
RCPI's Board of Directors of the Merger or any Alternate
Transaction, except as required by Section 4.2(e) hereof).
Notwithstanding the foregoing, to the extent that making any
documents or information available to Parent and its Agents
pursuant to clause (x) or (z) would violate any
confidentiality agreement to which RCPI is a party as of the
date hereof, RCPI shall not be obligated to do so; provided,
however, that RCPI shall, in such event, (A) use reasonable
best efforts to obtain waivers of any such confidentiality
agreement to the extent necessary to permit RCPI to make such
documents and information available to Parent and its Agents
and (B) notify Parent promptly to the extent that it is
prohibited from making any such documents or information
available to Parent and its Agents under any such
confidentiality agreement.
(b) Ordinary Course. Except as may otherwise
be expressly provided by the terms of this Agreement, RCPI
shall (and shall cause each of its Subsidiaries to)
(i) operate only in the ordinary course of business consistent
with past practices, (ii) not take or permit any action or
omission that would cause any of the representations or
warranties of RCPI contained herein to become inaccurate in
any material respect or any of the covenants of RCPI to be
breached in a material manner, and (iii) take such reasonable
steps as may be within its power prior to the Closing so that
it shall continue to qualify to be taxed as a REIT, based on
the income and assets of RCPI for the periods prior to the
Closing, 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.
For the purposes of the
<PAGE>
<PAGE> 23
foregoing, the phrase "ordinary course of business consistent
with past practices" shall include changes in the ordinary
course of business of RCPI instituted as a result of, and
shall take into account the effects of, the Borrower's Chapter
11 Case (it being understood that such construction shall not
relieve RCPI of any of its obligations under this Agreement).
Except as may be required by Law or as expressly
provided by the terms of this Agreement, RCPI shall not (and
shall cause each of its Subsidiaries not to):
(A) 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
or other equity securities unless and to the extent required
to meet qualification rules for a REIT under Section 857(a) of
the Code or to avoid any excise tax under Section 4981 of the
Code;
(B) authorize for issuance, issue,
deliver, sell or agree or commit to issue, sell or deliver
(whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or
otherwise), pledge or otherwise encumber any shares of its
capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to
acquire, any such shares, voting securities or convertible
securities or any other securities or equity equivalents
(including without limitation stock appreciation rights);
(C) except as described on Sec-
tion 4.2(b)(C) of the RCPI Disclosure Schedule or except with
respect to annual bonuses made in the ordinary course of
business consistent with past practice, adopt or amend in any
material respect any bonus, profit sharing, compensation,
severance, termination, stock option, stock appreciation
right, pension, retirement, employment, consulting or other
employee benefit agreement, trust, plan or other arrangement
for the benefit or welfare of any current or former director,
officer, consultant or employee of RCPI or increase in any
manner the compensation or fringe benefits of any current or
former director, officer, consultant or employee of RCPI or
any of its Subsidiaries, or pay any benefit not required by
any existing arrangement or agreement or place any assets in
any trust for the benefit of any director, officer or employee
of RCPI;
(D) amend its Restated Certificate of
Incorporation or By-laws;
(E) acquire or agree to acquire (x) by
merging or consolidating with, or by purchasing a substantial
portion of the stock or assets of, or by any other manner, any
business or any corporation, partnership, joint venture,
association or other business organization or
<PAGE>
<PAGE> 24
division thereof or (y) any assets that are material,
individually or in the aggregate, to RCPI;
(F) (x) sell, lease, license, mortgage
or otherwise encumber or subject to any Lien (other than
Permitted Liens), or otherwise dispose of or transfer any of
its real property or material assets, whether now owned or
hereafter acquired (other than the repayment of Debt or other
liabilities as required by the agreements with respect thereto
and subject to the terms of RCPI's other agreements as in
effect as of the date hereof), (y) sell any of its real
property or material 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 (z) assign any right to receive
income;
(G) incur any Debt, issue or sell any
debt securities or warrants or other rights to acquire any
debt securities of RCPI or any of its Subsidiaries, guarantee
any debt securities of another person, enter into any "keep
well" or other agreement to maintain any financial statement
condition of another Person or enter into any arrangement
having the economic effect of any of the foregoing, except for
Debt permitted to be incurred after December 31, 1995 under
Section 4.4(b) hereof to fund Permitted Expenses (as
hereinafter defined);
(H) make any loans, advances or capital
contributions to, or investments in, any other Person;
(I) form, create or acquire any
Subsidiary;
(J) incur or make payments with respect
to any general and administrative expenses or any other
expenditures or commitments of any kind, except for (x) the
payment of interest on any Debt pursuant to the terms of the
agreements with respect thereto, (y) general and
administrative expenses in amounts not to exceed the amounts
identified as "Total G&A Expenses" on Schedule A incurred or
paid during the months set forth on Schedule A and
(z) payments required to be made under interest rate swap
agreements to which RCPI is a party as of the date hereof in
amounts not to exceed the amounts identified as "Swap
Expenses" on Schedule A paid during the months set forth on
Schedule A (together with any "Transaction Costs" set forth on
Schedule B, the payments referred to in clauses (x), (y) and
(z) being referred to as "Permitted Expenses"); provided that
any amounts to be incurred or paid pursuant to clause (y) or
(z) in any month in accordance with Schedule A may be paid in
any subsequent month rather than in the scheduled month;
(K) except as described on
Section 4.2(b)(K) of the RCPI Disclosure Schedule, waive,
release, grant, or transfer any rights of value or modify or
<PAGE>
<PAGE> 25
change in any material respect any material existing license,
lease, Contract or other document (including, without
limitation, the RCPI Indenture);
(L) adopt a plan of complete or partial
liquidation or resolutions providing for or authorizing such a
liquidation or a dissolution, merger, consolidation,
restructuring, recapitalization or reorganization;
(M) (x) amend or in any way waive or
modify in any manner adverse to RCPI or the Investors (other
than in connection with any debtor-in-possession financing
permitted by clause (Q) below) any provision of the Mortgage
or the Mortgage Note or the 1985 Loan Agreement or the
Purchase Option or (y) exercise the rights granted to it in
the Purchase Option and Article X of the 1985 Loan Agreement;
(N) change any of its accounting
principles, unless required by the SEC or the Financial
Accounting Standards Board;
(O) settle or compromise any shareholder
derivative or class action suits arising out of the
transactions contemplated hereby or any other litigation
(whether or not commenced prior to the date of this Agreement)
or settle, pay or compromise any claims not required to be
paid, individually in an amount in excess of $100,000 and in
the aggregate in an amount in excess of $1,000,000, other than
in consultation and cooperation with Parent, and with respect
to any such settlement, with the prior written consent of
Parent (which consent shall not be unreasonably withheld);
(P) enter into any transaction or series of
transactions with any Affiliate of RCPI or otherwise that
would be required to be disclosed pursuant to Item 404 of
Regulation S-K other than on terms and conditions
substantially as favorable to RCPI as would be obtainable by
RCPI at the time of such transaction with a Person that is not
an Affiliate of RCPI;
(Q) consent to or approve (x) any debtor-
in-possession financing other than the debtor-in-possession
financing approved by order of the Bankruptcy Court on October
30, 1995 (the "DIP Facility"), as limited by that certain
Stipulation and Order Supplementing Cash Collateral Orders in
Connection with Debtor in Possession Financing (the
"Stipulation"), except that RCPI shall not consent to any
borrowings under subparagraph 1(iii) or (iv) of the
Stipulation, or (y) any application of the proceeds of any
debtor-in-possession financing that deviates from the uses
approved by the Bankruptcy Court or permitted by the
Stipulation, in either case, without Parent's written consent,
which shall not be unreasonably withheld or delayed; or
<PAGE>
<PAGE> 26
(R) agree to take any of the actions
described in clauses (A) through (Q) above.
(c) Stockholders' Meeting; Fiduciary Duties.
Promptly after the date hereof, RCPI shall give notice of and
take all other action necessary in accordance with the DGCL,
its Restated Certificate of Incorporation and By-laws and the
Exchange Act to convene and hold a meeting of RCPI's
stockholders (the "Stockholders' Meeting") as promptly as
practicable after the date hereof to, among other things,
consider and vote upon this Agreement, and RCPI shall consult
with Parent with respect to the date, time and location of,
agenda for, and all other arrangements with respect to such
meeting. The Board of Directors of RCPI shall not withdraw or
modify or propose to withdraw or modify in a manner adverse to
Parent or Sub the Recommendation, unless the Board of
Directors of RCPI concludes in good faith based on the advice
of outside legal counsel that such action is necessary for the
Board of Directors of RCPI to comply with its fiduciary
obligations to stockholders under applicable Law. Unless the
Recommendation shall have been withdrawn or modified in a
manner adverse to Parent, RCPI shall use its reasonable best
efforts to solicit from stockholders of RCPI proxies in favor
of the approval and adoption of this Agreement and to secure
the vote or the consent of the stockholders required by the
DGCL and its Restated Certificate of Incorporation and By-laws
to approve and adopt this Agreement.
(d) Preparation of the Proxy Statement.
(i) As soon as practicable following the
date of this Agreement, with all reasonably necessary
assistance from Parent, RCPI shall prepare and cause to be
filed with the SEC the Proxy Statement. The Proxy Statement
shall comply with all applicable provisions of the Exchange
Act, including, without limitation, Rule 14a-9 thereunder.
RCPI shall provide Parent and its Agents with reasonable
opportunity to review and comment upon the Proxy Statement
prior to the filing thereof with the SEC or the distribution
thereof to the stockholders of RCPI, and shall make all
reasonable changes thereto requested by Parent or its Agents,
and shall not file the Proxy Statement or any amendments
thereto to which Parent or its Agents shall reasonably object.
(ii) RCPI will file promptly all reports
and any other definitive proxy or information statements
required to be filed by RCPI with the SEC pursuant to the
Exchange Act for so long as the delivery of a proxy statement
is required in connection with the solicitation of the holders
of Common Stock pursuant to the Proxy Statement.
(iii) If any event shall occur as a result
of which it is necessary, in the opinion of legal counsel to
Parent or RCPI, to amend the Proxy Statement in order to make
the Proxy Statement not misleading in the
<PAGE>
<PAGE> 27
light of the circumstances existing at the time it is
delivered to a holder of Common Stock, RCPI shall forthwith
amend the Proxy Statement (in form and substance reasonably
satisfactory to legal counsel to Parent) so that, as so
amended, the Proxy Statement 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, in the
light of the circumstances existing at the time it is
delivered to a holder of Common Stock, not misleading.
(e) Exclusivity. Prior to the termination of
this Agreement pursuant to Article 6 hereof, and except as
hereinafter provided, neither RCPI nor any Affiliate thereof,
nor any of their respective Agents (collectively, the "RCPI
Parties"), shall, directly or indirectly, solicit, pursue or
attempt to engage in or enter into any discussions with any
Person (including the Borrower and Affiliates thereof) other
than the Investors, GSMC, Parent or Sub (or any of their
respective Affiliates), with a view toward entering into an
Alternate Transaction. Notwithstanding the foregoing, RCPI
may respond to and pursue an unsolicited proposal to
consummate an Alternate Transaction (an "Alternate Transaction
Proposal") that RCPI's Board of Directors determines could be
financially superior to the Merger, if, based on the advice of
outside legal counsel, RCPI's Board of Directors believes it
has a fiduciary duty to the holders of Common Stock under
applicable Law to respond to and pursue such Alternate
Transaction Proposal; provided that RCPI shall notify Parent
of such Alternate Transaction Proposal prior to responding
thereto (but RCPI shall not be obligated to disclose the
identity of the Person making such Alternate Transaction
Proposal or any of the terms thereof). In addition, RCPI
may provide at any time information concerning RCPI and the
Property to third parties in response to requests for same
(but may not provide information about Parent, Sub, GSMC (or
its Affiliates), any Investor or this Agreement or anything
contained herein or relating hereto unless and to the extent
required by Law).
(f) New Leases; Approval Rights. Prior to the
termination of this Agreement pursuant to Section 6.1 hereof,
(i) RCPI shall not, without the prior written consent of
Parent, approve the terms of any lease for space in the
Property and will object to any such lease submitted to it for
approval unless otherwise instructed in writing by Parent, but
Parent shall not unreasonably object to, withhold or delay its
approval as to any such lease and any objection or disapproval
shall be based solely on economic considerations (provided
that the form of such lease shall be consistent with the forms
of leases for space in the Property in effect as of the date
hereof) and (ii) RCPI shall not exercise any other approval
rights in its capacity as mortgagee under the Mortgage without
the prior written consent of Parent, which consent shall not
be unreasonably withheld or delayed. A failure by Parent to
object to any proposed exercise of an approval right by RCPI
within five
<PAGE>
<PAGE> 28
Business Days after a written request for approval by Parent
is received by Parent shall be deemed an approval by Parent.
(g) Notice of Default. Upon RCPI's obtaining
knowledge thereof, it shall give written notice to Parent
promptly, but in any event within five Business Days, of the
occurrence of any of the following with respect to each of
RCPI and any of its Subsidiaries: (i) the occurrence of an
event or condition that constitutes a default or an event of
default under any material Contract of RCPI or any of its
Subsidiaries, specifying the nature and existence thereof and
what action RCPI proposes to take with respect thereto;
(ii) the pendency or commencement of any material litigation,
arbitral or governmental proceeding against RCPI or any of its
Subsidiaries; (iii) any levy of an attachment, execution or
other process against their respective assets in excess of
$1,000,000 in the aggregate; (iv) any development in its
business or affairs that has resulted in, or that RCPI
reasonably believes may result in, a Material Adverse Effect
on RCPI; (v) the institution of any proceedings against RCPI,
or the receipt of notice of potential liability or
responsibility of RCPI for any violation, or alleged violation
of any Law the violation of which could give rise to a
material liability, or have a Material Adverse Effect on RCPI;
(vi) the occurrence of an event or condition that may render
RCPI unable to qualify as a REIT under the Code or (vii) the
occurrence of any other event or condition that would have a
Material Adverse Effect on RCPI.
(h) Bankruptcy Cases.
(i) RCPI has filed with the Bankruptcy
Court in the Borrower's Chapter 11 Case its Motion Pursuant to
Bankruptcy Code Section 1121(d) to Terminate Exclusivity and
for Authority to Conduct Bankruptcy Rule 2004 Examinations
(the "Bankruptcy Motion") (x) requesting that the Borrower's
exclusive solicitation period be terminated and (y) seeking
authorization for RCPI to file its own plan of reorganization
for the Borrower. Following a hearing on the Bankruptcy
Motion, Borrower has agreed that it will transfer the Property
to RCPI pursuant to a chapter 11 plan to be proposed and filed
jointly by RGI, Borrower and RCPI in Borrower's Chapter 11
Case (the "Joint Plan for Borrower"). RCPI shall file the
Joint Plan for Borrower, which shall be reasonably acceptable
to Parent, as promptly as reasonably practicable. In
addition, a motion requesting the Bankruptcy Court to set a
hearing on approval of the disclosure statement and
authorizing commencement of solicitation of acceptances of the
Joint Plan for Borrower shall be filed as soon as possible
after the filing of the Joint Plan for Borrower and the
related disclosure statement, but in any event so as to allow
the Joint Plan for Borrower to be confirmed by February 29,
1996.
(ii) Except as specifically set forth in
subparagraph (h)(i) above with respect to the Bankruptcy
Motion or subparagraph (h)(iii) below with respect to
<PAGE>
<PAGE> 29
"emergency" matters, RCPI shall not file or support any
material applications, motions, pleadings, chapter 11 plans,
disclosure statements or other documents ("RCPI Pleadings") or
take any other material action (including, without limitation,
accepting or approving any chapter 11 plan or affirming or
disaffirming any lease or contract) relating to the Borrower's
Chapter 11 Case (it being understood that whether any
pleading, document or other action is "material" for purposes
of this paragraph shall be reasonably determined by Parent),
without the prior consent (in writing, to the extent
practicable) of Parent (which consent shall not be
unreasonably withheld or delayed).
(iii) Any and all RCPI Pleadings filed by
RCPI in the Borrower's Chapter 11 Case that are material (as
reasonably determined by Parent) shall be in form and
substance reasonably satisfactory to Parent. RCPI shall not
file any material RCPI Pleadings, nor take any other action
that is material (as reasonably determined by Parent) in any
way relating to the Borrower's Chapter 11 Case without the
prior consent (in writing, to the extent practicable) of
Parent (which consent shall not be unreasonably withheld or
delayed). RCPI shall provide Parent copies of all RCPI
Pleadings proposed to be filed by RCPI in the Borrower's
Chapter 11 Case and shall fully advise Parent of any material
action proposed to be taken by RCPI in any way relating to the
Borrower's Chapter 11 Case no less than 48 hours prior to any
such proposed filing or action unless there shall not be
sufficient time to permit such 48-hour notice, in which event
RCPI shall fully advise Parent orally if any such action is to
be taken on a short term or "emergency" basis.
(iv) RCPI shall as promptly as reasonably
practicable advise Parent of any "emergency" matters relating
to or arising in Borrower's Chapter 11 Case.
(v) Without limiting the foregoing, as
promptly as reasonably practicable, RCPI shall provide Parent
with all notices, amendments, stipulations, waivers, requests
and consents relating to the DIP Facility.
(i) Prepayment of Zell/Merrill Lynch Loans;
Termination of Zell Agreements. Concurrently with the
execution of this Agreement, RCPI shall take all steps
reasonably requested by Parent to terminate the Combination
Agreement, and upon receipt of the proceeds of the initial
GSMC Loans (as hereinafter defined), RCPI shall repay any and
all amounts borrowed by RCPI pursuant to the terms of the
Investment Agreement, and shall thereafter take all steps
reasonably requested by Parent to terminate the Investment
Agreement. Except as permitted by this Section 4.2(i), RCPI
shall not, (i) without the prior written consent of Parent,
make any payments under or (ii) without the prior written
consent of Parent, which shall not be
<PAGE>
<PAGE> 30
unreasonably withheld, take any action with respect to the
Combination Agreement or the Investment Agreement.
(j) Release. Concurrently with the execution
of this Agreement, RCPI shall execute a release substantially
in the form of Exhibit B.
Section 4.3 Covenants of the Investors. Each
Investor agrees (with respect to itself only) as follows:
(a) Releases. Concurrently with the execution
of this Agreement, each of the Investors shall (and Whitehall
shall cause GSMC and Goldman, Sachs & Co. ("GS") to) execute a
release substantially in the form of Exhibit B.
(b) Investor Commitments. Immediately prior to
the Effective Time, each of the Investors (or its designee)
shall contribute to the capital of Parent or Sub an amount in
cash equal to the amount set forth opposite such Investor's
name on Exhibit C, the sum of which amounts shall be
sufficient to satisfy the obligations of Parent and Sub to pay
the Merger Consideration to the holders of Common Stock
pursuant to Section 2.1(a).
Section 4.4 Covenants of GSMC and Whitehall.
(a) GS Board Nominee. From the date hereof
through the earlier of (i) the Effective Time and (ii) the
termination of this Agreement pursuant to Section 6.1,
Whitehall shall cause GS to refrain from exercising its rights
under the December 1994 Letter to (x) designate the GS Nominee
(as defined in the December 1994 Letter) to the Board of
Directors of RCPI and (y) enforce RCPI's obligations under the
December 1994 Letter to use its best efforts to cause the
Board and each committee thereof to include the GS Nominee.
(b) GSMC Loans. Concurrently with the
execution of this Agreement, GSMC shall make available to RCPI
additional credit (secured pursuant to existing security
arrangements provided for in the Loan Documents) in an amount
up to a total of (A) $33 million plus (B) $12 million to pay
Permitted Expenses if the Closing Date shall not have occurred
on or before December 31, 1995, in each case under the terms
of the Goldman Loan Agreement (the "GSMC Loans"); provided
that (1) of the amount described in clause (A), an amount
sufficient to pay all interest that will become due from RCPI
to Whitehall and GSMC on or before December 31, 1995 shall be
available only to pay such interest and (2) of the amount
described in clause (B), an amount sufficient to pay all
interest that will become due from RCPI to Whitehall and GSMC
on or before March 31, 1996 shall be available only to pay
such interest. Notwithstanding the provisions of the Goldman
Loan Agreement, (i) such additional amounts may be borrowed by
RCPI at any time and from time to time after the date
<PAGE>
<PAGE> 31
hereof, (ii) once borrowed, such amounts may be prepaid by
RCPI at any time (without penalty), (iii) once prepaid, such
amounts may not be reborrowed by RCPI and (iv) any such
amounts shall accrue interest at a rate equal to 10% per annum
(compounded quarterly); provided that if any such additional
borrowings shall not have been repaid by the earlier of
March 31, 1996 and the termination of this Agreement pursuant
to Sections 6.1(b), 6.1(f) or 6.1(g), then any such borrowings
that remain outstanding shall thereafter be subject to all of
the terms and conditions (including interest rate and
prepayment provisions) contained in the Goldman Loan
Agreement. In consideration of the transactions contemplated
by this Agreement, GSMC, on behalf of the Lenders (as defined
in the Goldman Loan Agreement), hereby agrees that (x) RCPI
shall not be required to use the proceeds of the GSMC Loans to
make the prepayments required by Section 2.05(b) of the
Goldman Loan Agreement and (y) RCPI shall be deemed not to
have breached the Goldman Loan Agreement by reason of having
spent amounts reserved for payment of interest (and thus
deducted from Net Cash Flow as such term is defined in the
Goldman Loan Agreement) for purposes other than payment of
interest, provided that such amounts were used to pay expenses
of the type included in Permitted Expenses as such term is
defined herein.
(c) No Exercise of SARs. Whitehall shall not
(and shall cause each holder of SARs not to), prior to the
earlier of the Effective Time and the termination of this
Agreement pursuant to Section 6.1, exercise the SARs, unless
RCPI has taken any action and as a result the failure to
exercise such SARs would adversely affect the rights of
Whitehall or such holders with respect to the SARs, the value
of the SARs to Whitehall or such holders or the position of
Whitehall, such holders or GSMC in RCPI. The conversion by
Whitehall or such holders of any SARs into 14% Debentures (as
such term is defined in the Stock Appreciation Rights
Agreement) shall be deemed not to be (i) an incurrence of Debt
by RCPI in violation of this Agreement or (ii) additional Debt
for purposes of determining the satisfaction of the conditions
set forth in Section 5.2 of this Agreement.
ARTICLE 5
CONDITIONS PRECEDENT
Section 5.1 Conditions to the Obligations of Parent,
Sub, the Investors and RCPI to Effect the Merger. The respective
obligations of each party to effect the Merger shall be subject to the
satisfaction of the following conditions:
(a) Stockholder Approval. This Agreement shall
have been approved and adopted by the affirmative vote
<PAGE>
<PAGE> 32
of a majority of the votes that the holders of the outstanding
shares of Common Stock are entitled to cast.
(b) No Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or
other order or decree issued by any court of competent
jurisdiction or other Governmental Entity or other legal
restraint or prohibition (an "Injunction") restraining or
preventing the consummation of the Merger or subjecting any
party or any of its Affiliates to substantial damages as a
result of the consummation of the Merger shall be in effect,
provided that the party invoking this condition shall have
used reasonable best efforts to have such Injunction vacated.
(c) HSR Act. All HSR Act waiting periods shall
have expired or been terminated.
(d) Governmental Approvals. The RCPI
Governmental Approvals and the P&S Governmental Approvals
shall have been obtained and shall be in full force and
effect.
(e) Required Consents. The RCPI Required Con-
sents (other than any consents and approvals of the Investors,
GSMC and their respective Affiliates) shall have been obtained
and be in full force and effect.
Section 5.2 Conditions to the Obligations of
Parent, Sub and the Investors. The obligations of Parent, Sub
and each of the Investors under this Agreement to consummate
the transactions contemplated hereby are subject to the
satisfaction of the following conditions, the imposition of
which is solely for the benefit of Parent, Sub and each of the
Investors and any one of more of which may be expressly waived
by Parent, in its sole discretion, except as otherwise
required by law:
(a) Accuracy of Representations and Warranties.
The representations and warranties of RCPI contained herein
shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects
(without regard to any "knowledge" qualifier contained
therein) at and as of the Closing Date as though made on and
as of the Closing Date (except to the extent that any such
representation and warranty had by its terms been made as of a
specific date in which case such representation and warranty
shall have been true and correct in all material respects
(without regard to any "knowledge" qualifier contained
therein) as of such specific date). For purposes of this
Section 5.2(a), the requirement that the representations and
warranties of RCPI shall be true and correct in "all material
respects" is not intended to establish a different or higher
materiality standard with respect to any representation or
warranty that is already qualified by a materiality or a
Material Adverse Effect standard by the terms thereof. Parent
shall have received a
<PAGE>
<PAGE> 33
certificate of RCPI dated the Closing Date and signed by an
officer of RCPI certifying, to the knowledge of RCPI, to the
fulfillment of this condition.
(b) Performance of Agreements. RCPI shall have
performed in all material respects all obligations and
agreements and complied in all material respects with all
covenants and conditions contained in this Agreement or
otherwise contemplated hereby to be performed and complied
with by it at or prior to the Closing Date, and Parent shall
have received a certificate of RCPI dated the Closing Date and
signed by an officer of RCPI certifying, to the knowledge of
RCPI, to the fulfillment of this condition.
(c) No Material Adverse Change. Since
December 31 1994, no material adverse change in the financial
condition of RCPI or the financial or physical condition of
the Property shall have occurred and be continuing, it being
understood that changes in the financial condition of RCPI
shall not be considered material for this purpose to the
extent such changes are attributable to (i) the initiation of
any Permitted Litigation, (ii) any acceleration or attempted
acceleration of indebtedness of RCPI (or any attempt to
exercise any rights consequent thereto) as a result of any of
the transactions contemplated hereby, or (iii) any event or
condition the occurrence of which is reasonably foreseeable
based on the disclosures made in RCPI's Annual Report on Form
10-K for the year ended December 31, 1994 or its quarterly
reports on Form 10-Q for the quarters ended March 31, 1995 and
June 30, 1995 (other than a filing for relief under the
Bankruptcy Code by RCPI, unless such filing is made with the
consent of Parent).
(d) Liabilities of RCPI. Except for (i) the
liabilities set forth or described on Schedule B, (ii) any
liabilities incurred after December 31, 1995 in accordance
with Section 4.2(b)(G) to fund Permitted Expenses incurred
after December 31, 1995, (iii) any accrued but unpaid interest
on the outstanding Debt set forth or described on Schedule B
accruing after December 31, 1995, and (iv) Permitted
Litigations, as of the Closing Date, there shall be no
outstanding Debt or other liabilities or claims (including,
without limitation, guaranty obligations) of or against RCPI
or any of its Subsidiaries (other than liabilities and claims
that, individually and in the aggregate, are de minimis).
(e) Satisfactory Chapter 11 Plan. The Joint
Plan for Borrower or any other chapter 11 plan (an
"Alternative Chapter 11 Plan") confirmed in the Borrower's
Chapter 11 Case, shall, among other things, provide for the
transfer to the Surviving Company (or its designee approved by
Parent) of (i) the Property, (ii) all other real property
(including leasehold interests) owned by the Borrower and used
in connection with the operation of the Property consistent
with past practices and (iii) all personal property (including
leasehold interests) owned by the Borrower and
<PAGE>
<PAGE> 34
material to the operation of the Property consistent with past
practices and shall otherwise be filed on a date and be in
form and substance reasonably satisfactory to Parent. The
maximum amount to be provided (or assumed) by RCPI under the
Joint Plan for Borrower or under any Alternative Chapter 11
Plan to be used to fund liabilities of the Borrower or its
estate shall not exceed $20 million (exclusive of the debtor-
in-possession financing permitted under Section 4.2(b)(Q)),
and such funded liabilities shall consist only of liabilities
related to administrative expenses, claims entitled to
priority under the Bankruptcy Code, cure payments relating to
leases and other executory contracts to be assumed (including
tenant improvements) reasonably acceptable to Parent, and
certain general unsecured claims reasonably acceptable to
Parent. The disclosure statement for, and the proceedings
relating to confirmation of, the Joint Plan for Borrower or
for any Alternative Chapter 11 Plan also shall be in form and
substance reasonably satisfactory to Parent.
(f) Termination of Zell Agreements. RCPI shall
have taken all steps reasonably requested by Parent to
terminate the Investment Agreement and the Combination
Agreement.
(g) Condition of the Property. As of the
Closing Date,
(i) there shall not exist any violations
of Law relating to the Property or structural defects in the
Property that would require the expenditure of more than
$25 million to cure, repair or replace (as applicable);
(ii) except for Permitted Liens, there
shall exist no defect of title to the Property arising since
the date of the Title Insurance that would materially
adversely affect the value of the Property or the ability to
operate the Property for its current use; and
(iii) the Borrower shall not have violated
or taken any action inconsistent with any of the covenants set
forth in the 1985 Loan Agreement or the Mortgage (other than
any covenants relating to the payment of principal or interest
on the Mortgage Note), except to the extent that such
violation or action together with any other such violations
and actions would not have and would not be reasonably likely
to have a material adverse effect on the physical or financial
condition of the Property.
(h) Environmental Matters.
(i) Except as set forth on Section 5.2(h)
of the RCPI Disclosure Schedule, (A) no portion of the real
property owned, operated or subject to any mortgage or
security interest held by RCPI shall have been used for the
generation, storage, transportation or
<PAGE>
<PAGE> 35
disposal, if any, of Hazardous Materials and (B) no Hazardous
Materials shall be present in, on or under any portion of any
such property except to the extent that any such use or
presence, individually and in the aggregate, would not have
and would not be reasonably likely to have a material adverse
effect on the physical or financial condition of the Property.
(ii) Except as set forth on Section 5.2(h)
of the RCPI Disclosure Schedule, RCPI and its Affiliates, and
all portions of the real property owned, operated or subject
to any mortgage or security interest held by RCPI or its
Affiliates, (A) shall be in compliance with all applicable
Environmental Laws, (B) shall have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(C) shall be in compliance with all terms and conditions of
any such permit, license or approval, except to the extent
that any such noncompliance or failure to receive,
individually and in the aggregate, would not have and would
not be reasonably likely to have a material adverse effect on
the physical or financial condition of the Property.
(i) Conveyance of Property. Parent, Sub and
each Investor shall be reasonably satisfied that immediately
after the Effective Time (or such later time as shall be
reasonably determined by Parent) (i) the Property, (ii) all
other real property (including leasehold interests) owned by
the Borrower and used in connection with the operation of the
Property consistent with past practices and (iii) all
personal property (including leasehold interests) owned by the
Borrower and material to the operation of the Property
consistent with past practices will be conveyed to the
Surviving Company (or its designee approved by Parent)
pursuant to the Joint Plan for Borrower.
(j) No Taxes. Prior to the date on which the
Proxy Statement is first mailed to the stockholders of RCPI,
Parent, Sub and each Investor shall be reasonably satisfied
that neither the Merger nor the conveyance of the Property to
the Surviving Company (or its designee approved by Parent)
will subject the Surviving Company (or its designee approved
by Parent) to any liabilities for transfer tax or gains tax
under the laws of the City of New York or the State of New
York. Notwithstanding any other provision of this Agreement
to the contrary, this Section 5.2(j) is intended to be the
exclusive provision in this Agreement relating to any
liabilities for the taxes referred to in this Section 5.2(j)
that may arise from the Merger or the conveyance of the
Property to the Surviving Company (or its approved designee).
(k) Employee Benefits. Prior to the date on
which the Proxy Statement is first mailed to the stockholders
of RCPI, Parent, Sub and each Investor shall be reasonably
satisfied that, following the consummation of the
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<PAGE> 36
transactions contemplated hereby, the Surviving Company will
not have, at or any time following the Effective Time, whether
arising by operation of law or otherwise, any direct or
indirect, actual or contingent liability (as a successor
employer or otherwise) arising out or relating to the
employment (including the performance of services by any
consultant) on or prior to the Effective Time of any
individual in connection with the operation of the Property
(whether or not employed by the Surviving Company at or
following the Effective Time), including, but not limited to,
under any federal or state labor or tax law, any employment,
consulting, severance or other compensatory agreement or
arrangement, any collective bargaining agreement or any
benefit plan, practice or arrangement, whether such direct or
indirect, actual or contingent liability arises prior to, at
the time of or following the Effective Time.
Section 5.3 Conditions to the Obligations of
RCPI. The obligations of RCPI to consummate the transactions
contemplated hereby are subject to the satisfaction of the
following conditions, the imposition of which is solely for
the benefit of RCPI and any one or more of which may be
expressly waived by RCPI, in its sole discretion, except as
otherwise required by law:
(a) Accuracy of Representations and Warranties.
The representations and warranties of Parent, Sub, GSMC and
the Investors contained herein shall have been true and
correct in all material respects when made, and shall be true
and correct in all material respects at and as of the Closing
Date as though made on and as of the Closing Date (except to
the extent that any such representation and warranty had by
its terms been made as of a specific date, in which case such
representation and warranty shall have been true and correct
in all material respects as of such specific date). For
purposes of this Section 5.3(a), the requirement that the
representations and warranties of Parent, Sub, GSMC and the
Investors shall be true and correct in "all material respects"
is not intended to establish a different or higher materiality
standard with respect to any representation or warranty that
is already qualified by a materiality or a Material Adverse
Effect standard by the terms thereof. RCPI shall have
received a certificate of Parent dated the Closing Date and
signed by an officer of Parent certifying, to the knowledge of
Parent, to the fulfillment of this condition.
(b) Performance of Agreements. Each of Parent,
Sub, GSMC and each of the Investors shall have performed in
all material respects all obligations and agreements and
complied in all material respects with all covenants and
conditions contained in this Agreement to be performed and
complied with by it at or prior to the Closing Date, and RCPI
shall have received a certificate of Parent dated the Closing
Date and signed by an officer of Parent
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<PAGE> 37
certifying, to the knowledge of Parent, the fulfillment of
this condition.
ARTICLE 6
TERMINATION
Section 6.1 Termination. This Agreement may be
terminated and the Merger contemplated hereby may be abandoned
at any time prior to the date on which the Proxy Statement is
first mailed to the stockholders of RCPI, in the case of
Section 6.1(b)(ii), and at any time prior to the Effective
Time, whether before or after approval by the stockholders
of RCPI, in all other cases:
(a) by mutual written consent of Parent and
RCPI;
(b) by Parent if (i) there has been a material
breach of any representation, warranty, covenant or agreement
on the part of RCPI set forth in this Agreement that, if not a
willful breach, has not been cured within 30 days following
receipt by RCPI of notice of such breach from Parent or
(ii) the condition set forth in Section 5.2(j) or
Section 5.2(k) shall not have been satisfied prior to the date
on which the Proxy Statement is first mailed to the
stockholders of RCPI;
(c) by RCPI if there has been a material
breach of any representation, warranty, covenant or agreement
on the part of Parent, Sub, GSMC or any Investor set forth in
this Agreement that, if not a willful breach, has not been
cured within 30 days following receipt by Parent, Sub or such
Investor of notice of such breach from RCPI;
(d) by either Parent or RCPI, if the Merger
shall not have been consummated before March 31, 1996 (or such
later date as may be agreed to by Parent and RCPI), provided
that neither party may terminate this Agreement under this
Section 6.1(d) if the failure has been caused by such party's
material breach of this Agreement;
(e) by either Parent or RCPI, if this Agreement
shall fail to receive the requisite vote for approval and
adoption by the stockholders of RCPI at the Stockholders'
Meeting;
(f) by Parent, if (i) the Board of Directors of
RCPI shall withdraw, modify or change the Recommendation in a
manner adverse to Parent or shall have resolved to do any of
the foregoing; (ii) the Board of Directors of RCPI shall have
recommended to the stockholders of RCPI, or agreed to enter
into, an Alternate Transaction; (iii) a tender offer or
exchange offer for shares of capital stock of RCPI that would
result in the beneficial ownership by any
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<PAGE> 38
Person or any "group" (as defined in Section 13(d) of the
Exchange Act and the rules and regulations promulgated
thereunder) of more than 50% of the outstanding shares of any
class of capital stock of RCPI is commenced; or (iv) any
Person shall have acquired beneficial ownership or the right
to acquire beneficial ownership of, or any "group" shall have
been formed that beneficially owns, or has the right to
acquire "beneficial ownership" of, more than 50% of the then-
outstanding shares of any class of capital stock of RCPI;
(g) by RCPI, prior to the occurrence of the
vote of the stockholders of RCPI with respect to this
Agreement, if (i) RCPI has received an Alternate Transaction
Proposal that RCPI's Board of Directors determines in good
faith could be financially superior to the Merger, (ii) based
on the advice of outside legal counsel, RCPI's Board of
Directors believes that it is required to respond to and
pursue such Alternate Transaction Proposal in order to comply
with its fiduciary obligations to holders of Common Stock
under applicable Law, and (iii) RCPI has entered into a
definitive agreement to consummate such Alternate Transaction
Proposal; or
(h) by Parent or RCPI, if a court of competent
jurisdiction or other Governmental Entity shall have issued an
order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the consummation of the
Merger, and such order, decree, ruling or other action shall
have become final and nonappealable.
Section 6.2 Effect of Termination. If this
Agreement is terminated and the Merger abandoned pursuant to
Section 6.1, all further obligations of the parties hereunder
shall terminate, except that the obligations set forth in Sec-
tions 4.1(b), 4.1(c) and 4.4(b), this Section 6.2 and Section
7.5 shall survive; provided, however, if this Agreement is so
terminated by a party because one or more of the conditions to
such party's obligations hereunder is not satisfied as a
result of the other party's willful failure to comply with its
obligations under this Agreement, the terminating party's
right to pursue all legal remedies for breach of contract or
otherwise, including, without limitation, damages relating
thereto, shall also survive such termination unimpaired.
ARTICLE 7
GENERAL PROVISIONS
Section 7.1 Certain Definitions. As used in this
Agreement, unless the context otherwise requires or unless
another meaning is specifically indicated, the following terms
shall have the meanings set forth in this Section:
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<PAGE> 39
"Affiliate" means, with respect to any Person,
any other Person that, directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under
common control with, such first Person.
"Agent" means, with respect to any Person, such
Person's officers, directors, employees, fiduciaries, attor-
neys, accountants, investment bankers, consultants or advisors
or other representatives or agents.
"Agreement" means this Agreement and Plan of
Merger, including all exhibits and schedules hereto, as it may
be amended from time to time.
"Alternate Transaction" means (i) whether
pursuant to or in the context of a proceeding in a Bankruptcy
Court or otherwise, (A) a sale of stock or other equity
securities or a material portion of assets, tender offer
(including a self tender offer) or exchange offer, financing,
refinancing, recapitalization, restructuring, liquidation,
dissolution, reorganization, merger, consolidation, transfer,
foreclosure, deed in lieu of foreclosure or other business
combination or similar transaction (or series of transactions)
involving RCPI, the Borrower, the Mortgage Note, the Mortgage
or the Property and involving or having a value of at least
$50 million, in the case of any issuance, repurchase or
transfer of stock or other equity securities of RCPI, or $100
million, in the case of any other transaction, or (B) any
other material corporate transaction whose consummation would
reasonably be expected to prevent or materially delay the
Merger or (ii) a confirmed plan of reorganization pursuant to
Chapter 11 of the Bankruptcy Code for RCPI or RCP or RCPA. It
is understood and agreed that, without limiting the generality
of the foregoing, (x) a reinstatement, restructuring or "cram
down" pursuant to 11 U.S.C. Section 1129(b) of the Mortgage
Note and the Mortgage would constitute an Alternate
Transaction and (y) the rights offering to be effectuated
pursuant to the Rights Offering Agreement would not constitute
an Alternate Transaction.
"Bankruptcy Code" means the Bankruptcy Code in
Title 11 of the United States Code.
"Bankruptcy Court" means the applicable court
presiding over the Borrower Chapter 11 Case.
"Business Day" means any day on which the
principal offices of the SEC in Washington, D.C. are open to
accept filings and other than a day on which (i) banks in the
State of New York are authorized or required to be closed or
(ii) the New York Stock Exchange, Inc. is closed.
"By-laws" means the By-laws of RCPI, as amended
or otherwise modified from time to time.
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<PAGE> 40
"Closing" means the consummation of the
transactions contemplated herein in accordance with
Section 1.2.
"Code" means the United States Internal Revenue
Code of 1986, as amended.
"Collateral Trust Agreement" means the
Collateral Trust Agreement, dated as of December 29, 1994, by
and among RCPI and Bankers Trust Company and Gary R. Vaughan,
Trustees.
"Combination Agreement" means the Agreement and
Plan of Combination, dated as of September 11, 1995, between
Equity Office Holdings, L.L.C., a Delaware limited liability
company, and RCPI.
"Contract" means any contract, lease,
commitment, understanding, sale, stipulation, order, purchase
order, agreement, indenture, mortgage, note, bond, right,
warrant, instrument or plan, whether written or oral.
"Debt" of any Person means, without dupli-
cation, (i) all indebtedness of such Person for borrowed
money; (ii) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments; (iii) all
obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as
capital leases; (iv) all obligations, contingent or otherwise,
of such Person under acceptance, letter of credit or similar
facilities; (v) all Debt of others referred to in clauses
(i) through (iv) above guaranteed directly or indirectly in
any manner by such Person; and (vi) all Debt of others
referred to in clauses (i) through (v) above secured by (or
for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"December 1994 Letter" means the letter
agreement, dated December 18, 1994, among GS, Whitehall and
RCPI.
"Environmental Laws" means all Laws relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants.
"ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended.
"Exchange Act" means the Securities Exchange
Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
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<PAGE> 41
"GAAP" means generally accepted accounting
principles in the United States at the time in effect.
"Goldman Loan Agreement" means the Loan
Agreement between RCPI, the lender parties thereto and Goldman
Sachs Mortgage Company, as Agent, dated as of December 18,
1994.
"Governmental Entity" means the government of
the United States or any foreign country or any state or
political subdivision thereof and any entity, body or
authority exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government, including quasi-governmental entities established
to perform such functions.
"Hazardous Materials" includes, without
limitation, any hazardous substance, pollutant or contaminant
regulated under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, et
seq., as amended by the Superfund Amendments and
Reauthorization Act, and the Emergency Planning and Community
Right-to-Know Act; oil and petroleum products and natural gas,
natural gas liquids, liquefied natural gas, and synthetic gas
usable for fuel; pesticides regulated under the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section
2601 et seq.; asbestos, polychlorinated biphenyls, and other
substances regulated under the Toxic Substance Control Act,
15 U.S.C. Section 2601 et seq; source material, special
nuclear material, and by-product materials regulated under the
Atomic Energy Act; and industrial process and pollution
control wastes to the extent regulated under applicable
Environmental Laws.
"HSR Act" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder.
"Investment Agreement" means the Investment
Agreement, dated as of August 18, 1995, between RCPI and
Zell/Merrill Lynch Real Estate Opportunity Partners Limited
Partnership III.
"knowledge" of any Person means actual
knowledge of a responsible officer of such person, and, unless
otherwise specified, without inquiry having been made by such
Person or such officer of such Person.
"Law" means any law, statute, regulation,
ordinance, rule, order, decree, judgment, consent decree,
settlement agreement or governmental requirement enacted,
promulgated, entered into, agreed or imposed by any
Governmental Entity.
"Lien" means any mortgage, lien (except for any
lien for taxes not yet due and payable), charge,
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<PAGE> 42
restriction, pledge, security interest, option, lease or
sublease, easement, encroachment or encumbrance.
"Loan Documents" means the "Loan Documents" as
defined in the Goldman Loan Agreement.
"Loss" or "Losses" means any and all liabili-
ties, losses, costs, claims, damages, penalties and expenses
(including, without limitation, attorneys' fees and expenses
and costs of investigation and litigation).
"Material Adverse Effect" means, with respect
to any Person, any effect that is or is reasonably likely to
be materially adverse to the financial condition of such
Person and its Subsidiaries taken as a whole.
"Mortgage" means, collectively, (i) the
Mortgage and Security Agreement, dated as of September 19,
1985, by RCPA and RCP to RCPI, (ii) the Consolidation,
Extension, Modification and Spreader Agreement, dated as of
September 19, 1985, among RCPA, RCP and RCPI, recorded with
the City Register of the City of New York, and (iii) the
Assignment of Rents, dated as of September 19, 1985, by RCPA
and RCP to RCPI, recorded with 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 RCPI 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.
"1985 Loan Agreement" means the Loan Agreement,
dated as of September 19, 1985, among RCPI, RCPA and RCP, as
amended from time to time.
"P&S Disclosure Schedule" means the disclosure
schedule delivered to RCPI by Parent and Sub concurrently with
the execution of this Agreement.
"Permitted Liens" means (i) all exceptions to
title to the Mortgage set forth in the Title Insurance;
(ii) Liens created in connection with the Goldman Loan
Agreement or the "Loan Documents" as defined therein,
including Liens created to secure loans contemplated by
Section 4.4(b) hereof; (iii) all nondisturbance agreements set
forth on Section 3.1(c)(iii) of the RCPI Disclosure Schedule,
and all other nondisturbance agreements hereafter entered into
by RCPI in accordance with the terms of this Agreement;
(iv) Liens created pursuant to the terms of this Agreement;
(v) Liens for taxes not yet due or as otherwise provided in
clause (xiii) below; (vi) easements, rights-of-way,
restrictive covenants and concourse, subway and franchise
agreements of record as set forth on Schedule B-1 to the Title
Report of Ticor Title Insurance Company and Ticor Title
Guarantee Company No. 4193-00483 dated October 10, 1995
("Title Report"), but no other matters set
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<PAGE> 43
forth in the Title Report other than as covered by clause (i)
above or provided for in clause (vii) below; (vii) Liens
(other than those described in clause (viii) below) 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, which are set forth in the Title Report
and the disposition of which (whether by payment, cancellation
or otherwise) is provided for in the Joint Plan for Borrower
or an Alternative Chapter 11 Plan provided in Section 5.2(e)
(the "Approved Plan"); (viii) mechanics', materialmen's and
similar Liens filed by reason of work performed by or on
behalf of tenants of space in the Property if (A) under the
terms of the leases of such tenants, such tenants are
obligated to remove and discharge such Liens and to pay for
the work that gives rise to such Liens (whether or not such
tenants are entitled to an allowance or other reimbursement
from their landlord) and (B) the disposition of such Liens
(whether by payment, cancellation or otherwise) is provided
for in the Approved Plan; (ix) unpaid water charges, sewer
rents and vault charges, the disposition of which is provided
for in the Approved Plan; (x) leases or subleases granted to
others (under which RCP or RCPA is the landlord or
sublandlord, as applicable) existing as of the date hereof and
those hereafter entered into which are approved pursuant to
this Agreement and/or by the Bankruptcy Court; (xi) any Lien
approved by the Bankruptcy Court in the Borrower's Chapter 11
Case, including any Lien securing debtor-in-possession
financing permitted under Section 4.2(b)(Q), which is to be
paid in full under the terms of the Approved Plan; (xii) the
Mortgage; and (xiii) any other Liens (including, but not
limited to, Liens for taxes and Liens in respect of property
imposed by law arising in the ordinary conduct of business
such as materialmen's, mechanic's, warehousemen's and other
like Liens), the disposition (whether by payment, cancellation
or otherwise) of which is provided for in the Approved Plan or
is otherwise approved by Parent; provided, however, that when
used in respect of the Mortgage, as opposed to the Property,
"Permitted Liens" shall mean only those matters set forth in
this definition which are paramount and superior to the lien
of the Mortgage.
"Permitted Litigations" means (i) the pending,
threatened and potential litigation described on
Section 3.1(h) of the RCPI Disclosure Schedule, (ii) any
derivative or class action suit not described on
Section 3.1(h) of the RCPI Disclosure Schedule alleging a
breach by the Board of Directors of RCPI of its fiduciary duty
to stockholders in connection with a significant corporate
transaction; provided that the suits contemplated by this
clause (ii) would not, individually and in the aggregate, have
a Material Adverse Effect on RCPI and (iii) litigations
arising after the date hereof to which RCPI is a party, in the
ordinary course of business, involving property, personal
injury or contract claims that will not result in any material
recovery that is not covered by insurance.
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<PAGE> 44
"Person" means any individual, corporation,
partnership, firm, group (as such term is used in Section
13(d)(3) of the Exchange Act), joint venture, association,
trust, limited liability company, unincorporated organization,
estate, trust or other entity.
"Property" shall mean the real and personal
property covered by the Mortgage.
"Proxy Statement" means the proxy statement
filed with the SEC by RCPI in connection with the Stock-
holders' Meeting, including any amendments thereto.
"Purchase Option" means the Purchase Option,
dated as of September 19, 1985, among RCPA, RCP and RCPI, as
amended.
"RCPI Disclosure Schedule" means the disclosure
schedule delivered to Parent and Sub by RCPI concurrently with
the execution of this Agreement.
"RCPI Indenture" means the Indenture, dated as
of September 15, 1985, between RCPI and Manufacturers Hanover
Trust Company, as amended.
"Regulation G, T, U or X" shall mean,
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.
"Restated Certificate of Incorporation" means
the Restated Certificate of Incorporation of RCPI, as amended.
"Rights Offering Agreement" means the letter
agreement, dated the date hereof, between RCPI, GS and
Whitehall relating to the effectuation of a rights offering in
the event that the stockholders of RCPI do not approve this
Agreement, as amended from time to time.
"SARs" means the stock appreciation rights
issued pursuant to the Stock Appreciation Rights Agreement.
"SEC" means the Securities and Exchange
Commission.
"Securities Act" means the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder.
"Stock Appreciation Rights Agreement" means the
Stock Appreciation Rights Agreement, dated December 18, 1994,
between RCPI and Chemical Bank, as amended.
"Subsidiary" of any Person means any
corporation, partnership, joint venture or other legal entity
of which such Person (either directly or through or
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<PAGE> 45
together with any other Subsidiary of such Person), owns,
directly or indirectly, 50% or more of the stock or other
equity interests the holders of which are generally entitled
to vote for the election of the board of directors or similar
governing body of such corporation, partnership, joint venture
or other legal entity.
"Taxes" means federal, state, county, local,
foreign and other taxes (including, without limitation,
income, profits, premium, estimated, excise, sales, use,
occupancy, gross receipts, franchise, ad valorem, severance,
capital levy, production, transfer, withholding, employment,
unemployment compensation, payroll related, property, real
property transfer and real property gains taxes, import duties
and other governmental charges and assessments), whether or
not measured or based in whole or in part by net income, and
including deficiencies, interest, additions to tax or
interest, and penalties with respect thereto, and including
expenses associated with contesting any proposed adjustment
related to any of the foregoing.
"Tax Return" means any report, return or other
information required to be supplied to a Governmental Entity
in connection with any Taxes.
"Title Insurance" means (i) the title insurance
policy set forth in Schedule III to the Collateral Trust
Agreement and (ii) the title insurance policy described in the
Letter Agreement dated as of December 29, 1994 regarding the
assignment by RCPI of its title insurance benefits to the
Trustees referred to in clause (i) above.
"Warrant Agreement" means the Warrant Agreement
dated December 18, 1994 between RCPI and Chemical Bank, as
amended.
"Warrants" means the warrants for the purchase
of shares of Common Stock issued pursuant to the Warrant
Agreement.
Section 7.2 Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed given when delivered personally, upon receipt of a
transmittal confirmation if sent by facsimile or like trans-
mission and on the next Business Day when sent by Federal
Express, Express Mail or similar overnight courier service to
the parties at the following addresses or facsimile numbers
(or at such other address or facsimile number for a party as
shall be specified by like notice):
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<PAGE> 46
(a) If to RCPI, to:
Rockefeller Center Property, Inc.
1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Facsimile: (212) 698-1453
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Cornelius J. Dwyer, Jr.
Facsimile: (212) 848-7179
(b) If to Parent or Sub, to:
Whitehall Street Real Estate
Limited Partnership V
85 Broad Street
New York, New York 10004
Attention: Daniel Neidich
Facsimile: (212) 902-3000
with copies to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Robert B. Schumer
Facsimile: (212) 757-3990
and
Each of the Investors and their respective
counsel at the addresses set forth in
paragraphs (c) - (g) below:
(c) If to Whitehall, to:
Whitehall Street Real Estate
Limited Partnership V
85 Broad Street
New York, New York 10004
Attention: Daniel Neidich
Facsimile: (212) 902-3000
with copies to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Robert B. Schumer
Facsimile: (212) 757-3990
and
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<PAGE> 47
Sullivan & Cromwell
250 Park Avenue
New York, New York 10177
Attention: Joseph Shenker
Facsimile: (212) 558-3792
(d) If to Rockprop, to:
Tishman Speyer Properties, L.P.
520 Madison Avenue
New York, New York 10022
Attention: Jerry I. Speyer
Facsimile: (212) 319-1745
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Thomas P. Dore, Jr.
Facsimile: (212) 450-5738
(e) If to Rockefeller, to:
Spears, Benzak, Salomon & Farrell, Inc.
45 Rockefeller Plaza, 33rd Floor
New York, New York 10111
Attention: Richard E. Salomon
Facsimile: (212) 586-6652
with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: Peter W. Herman
Facsimile: (212) 530-5219
(f) If to Exor, to:
Exor Group S.A.
Voltastrasse, 61
Zurich, SWITZERLAND CH804-1
Attention: Siegfried Maron
Facsimile: 011-41-1-262-4212
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Ernest Rubenstein
Facsimile: (212) 757-3990
<PAGE>
<PAGE> 48
(g) If to Troutlet, to:
Troutlet Investments Corporation
c/o Villa Bijou
19, Avenue de la Costa
Monte Carlo M.C. 98000
MONACO
Attention: Alois Jurt
Facsimile: 011-33-93-301-672
with copies to:
Andreas C. Dracopoulos
39 East 51st Street
New York, New York 10022
Facsimile: (212) 832-9732
and
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, New York 10005
Attention: Squire N. Bozorth
Facsimile: (212) 530-5219
Section 7.3 Interpretation. When a reference is
made in this Agreement to Sections, such reference shall be to
a Section of this Agreement unless otherwise indicated. The
table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the
words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words
"without limitation." The phrases "the date of this Agree-
ment," "the date hereof" and terms of similar import, unless
the context otherwise requires, shall be deemed to refer to
November 7, 1995. Dollar amounts referred to in this
Agreement shall not be deemed to establish any standard of
materiality.
Section 7.4 Waivers and Amendments. This Agree-
ment may be amended, superseded, canceled, renewed or exten-
ded, and the terms hereof may be waived, only by written
instruments signed by the parties to this Agreement, or in the
case of a waiver, by the party waiving compliance. Except
where a specific period for action or inaction is provided
herein, no delay on the part of a party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof. Neither any waiver on the part of a party of any
such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, shall preclude
any further exercise thereof or the exercise of any other such
right, power or privilege.
<PAGE>
<PAGE> 49
Section 7.5 Expenses and Other Payments.
(a) Except as otherwise specifically provided
herein, the parties to this Agreement shall bear their
respective expenses incurred in connection with the prepara-
tion, execution and performance of this Agreement and the
transactions contemplated hereby, including, without limita-
tion, all fees and expenses of their respective Agents.
(b) RCPI agrees that if this Agreement shall
be terminated pursuant to:
(i) Section 6.1(b)(i), 6.1(f) or 6.1(g)
and within 30 months after the date on which this Agreement is
terminated RCPI shall consummate an Alternate Transaction; or
(ii) Section 6.1(d) (if (x) each of
Parent, Sub, GSMC and each of the Investors is not in material
breach of any covenant, representation or warranty; (y) each
of Parent, Sub and each of the Investors is ready, willing and
able to consummate the Merger; and (z) each of Parent, Sub,
GSMC and each of the Investors has satisfied in all material
respects the conditions set forth in Section 5.3 applicable to
it) or 6.1(e) and (A) at the time this Agreement is terminated
there shall exist an Alternate Transaction Proposal or any
Person shall have publicly announced its intention to make an
Alternate Transaction Proposal and (B) within 30 months after
the date on which this Agreement is terminated RCPI shall
consummate an Alternate Transaction;
then RCPI shall pay to Parent an amount equal to $6.5 million
less any amounts paid to Parent pursuant to Section 7.5(c).
(c) RCPI agrees that if this Agreement shall
be terminated pursuant to Section 6.1(e), then RCPI shall pay
to Parent an amount equal to $2.925 million.
(d) In addition, RCPI agrees that if this
Agreement shall be terminated pursuant to Section 6.1 (other
than Section 6.1(c)), then RCPI shall pay to Parent all
expenses up to an aggregate amount of $2.5 million incurred by
Parent, Sub and the Investors in connection with the
preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including, without
limitation, all fees and expenses of their respective Agents.
(e) Any payment required to be made pursuant
to Section 7.5(b) shall be made concurrently with the
consummation of the applicable Alternate Transaction, and any
payment required to be made pursuant to Section 7.5(c) or (d)
shall be made promptly following any termination to which
Section 7.5(c) or (d), as the case may be, applies.
<PAGE>
<PAGE> 50
Section 7.6 Assignment. Neither this Agreement
nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written
consent of the other party and any such assignment made
without such consent shall be void and of no effect; provided
that each of Parent and Sub shall have the right to assign its
rights, interests and obligations hereunder to one or more
entities (each a "New Entity") which shall be formed,
capitalized and owned by the Investors, and upon such
assignment, the parties shall amend this Agreement to provide
(a) that, at the election of the Investors, a New Entity (and
not RCPI) shall be the Surviving Company of the Merger and (b)
for such other modifications to the terms hereof as shall be
necessary to reflect the revised structure (it being
understood that any such amendment shall not affect the Merger
Consideration or any other economic terms of this Agreement);
provided further that any Investor may assign any of its
rights, interests or obligations hereunder to any of its
Affiliates so long as (i) any such Affiliate assignee enters
into an agreement by which it agrees to become a party to, and
be bound by the terms of, this Agreement and (ii) the Investor
making such an assignment is not relieved of its obligations
under this Agreement.
Section 7.7 Directors' and Officers' Insurance;
Indemnity. (a) For a period of six years after the Effec-
tive Time, the Surviving Company shall maintain in effect
policies of directors' and officers' liability insurance in
substantially the same form with substantially the same terms
and conditions as contained in RCPI's current policies of
directors' and officers' liability insurance in an amount not
less than the amount currently maintained by RCPI with respect
to claims arising from facts or events that occurred prior to
the Effective Time; provided that such insurance is available
on commercially reasonable terms.
(b) Subsequent to the Closing, Parent shall
cause the Surviving Company to indemnify and hold harmless
each present and former director, officer, employee, fiduciary
and agent of RCPI (collectively, the "Special Indemnified
Parties") against all losses in connection with any claim,
action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of or
pertaining to any action or omission in their capacity as
director or officer occurring before the Closing, whether
asserted or claimed prior to, at or after the Closing Date,
for a period of six years after the Closing Date in each case
to the fullest extent permitted under applicable law (and
shall pay any expenses in advance of the final disposition of
such action or proceeding to each Special Indemnified Party to
the fullest extent permitted under applicable law, upon
receipt from the Special Indemnified Party to whom expenses
are advanced of an undertaking to repay such advances as
required under applicable law). In the event of any such
claim, action,
<PAGE>
<PAGE> 51
suit, proceeding or investigation, the Surviving Company, at
its expense, shall have the right to defend such claim,
action, suit, proceeding or investigation, unless there is, as
determined by counsel to the Surviving Company, a conflict or
reasonable likelihood of a conflict such that the
representation of one or more of the Special Indemnified
Parties would be impermissible under applicable standards of
professional conduct, in which case, or in the case that the
Surviving Company elects not to defend such claim, suit,
proceeding or investigation, then the Surviving Company shall
pay the reasonable fees and expenses of one counsel selected
by the Special Indemnified Parties, which counsel shall be
reasonably satisfactory to the Surviving Company, promptly
after statements therefor are received and the Surviving
Company shall cooperate in the defense of any such matter;
provided, however, that, if any claim for indemnification is
asserted or made within such six-year period, all rights to
indemnification in respect of such claim shall continue until
the disposition of such claim. For the purposes solely of
this Section 7.7(b), the corporate law of the State of
Delaware shall be assumed to be the "applicable law" referred
to in this Section 7.7(b).
(c) For a period of six years after the
Effective Time, the Surviving Company shall not amend or
otherwise modify Article SEVENTH of its Amended and Restated
Certificate of Incorporation or otherwise amend or modify its
Amended and Restated Certificate of Incorporation to the
extent that such amendment or modification would restrict the
Surviving Company's ability to fulfill its obligations under
Section 7.7(b).
(d) In the event the Surviving Company or any
of its respective successors or assigns (i) consolidates with
or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such con-
solidation or merger or (ii) transfers all or substantially
all of its properties and assets to any Person, then, and in
each such case, provision shall be made so that the successors
and assigns of the Surviving Company shall assume the
obligations set forth in this Section 7.7.
Section 7.8 Non-Survival of Representations and
Warranties. The representations and warranties made in this
Agreement or in any instrument delivered pursuant to this
Agreement shall not survive the Effective Time.
Section 7.9 Entire Agreement; No Third Party
Beneficiaries. This Agreement (including the documents and
the instruments referred to herein) (a) constitutes the entire
agreement and supersedes all prior agreements and under-
standings, both written and oral, among the parties with
respect to the subject matter hereof (it being understood that
except as expressly provided herein, this Agreement shall not
affect the Goldman Loan Agreement, the Warrant Agreement, the
Stock Appreciation Rights Agreement, the documents executed in
connection therewith or the Rights
<PAGE>
<PAGE> 52
Offering Agreement) and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies
hereunder (except as provided in Section 7.7).
Section 7.10 Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of
the State of New York (other than its rules of conflicts of
law to the extent that the application of the laws of another
jurisdiction would be required thereby); provided, however,
that with respect to matters of corporate law, the DGCL shall
govern.
<PAGE>
<PAGE> 53
Section 7.11 Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be
an original and all of which, when taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has signed
or caused this Agreement to be signed as of the date first
above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By: /s/ Steven A. Sandberg
Name: Steven A. Sandberg
Title: Executive Vice President
RCPI HOLDINGS INC.
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title: President
RCPI MERGER INC.
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title: President
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: W.H. Advisors L.P. V,
General Partner
By: WH Advisors, Inc. V,
General Partner
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title:
<PAGE>
<PAGE> 54
ROCKPROP, L.L.C.
By: Tishman Speyer Crown Equities
its Managing Member
By: Tishman Speyer Associates
Limited Partnership, General
Partner
By: /s/ Jerry I. Speyer
Name: Jerry I. Speyer
Title: General Partner
By: TSE Limited Partnership, General
Partner
By: /s/ Charles H. Goodman
Name: Charles H. Goodman
Title: General Partner
/s/ David Rockefeller *
David Rockefeller
*By Peter W. Herman, Attorney-in-fact
EXOR GROUP S.A.
By: /s/ Ernest Rubenstein
Name: Ernest Rubenstein
Title: Attorney-in-fact
TROUTLET INVESTMENTS CORPORATION
By: /s/ Squire N. Bozorth
Name: Squire N. Bozorth
Title: Attorney-in-fact
For Purposes of Sections 3.2, 4.1(a),
4.1(b), 4.3(a) and 4.4(b) only:
GOLDMAN SACHS MORTGAGE COMPANY
By: /s/ Steven T. Mnuchin
Name: Steven T. Mnuchin
Title: President of Goldman Sachs Real Estate
Funding Corp., General Partner
<PAGE>
<PAGE> 1
SCHEDULE A
ROCKEFELLER CENTER PROPERTIES, INC.
Projected Cash Flow Requirements
(in millions)
Projected REIT Cash Flow (1)
<TABLE>
<CAPTION>
1995 1996
Sept. Oct. Nov. Dec. Jan. Feb. Mar. TOTAL
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Cash Sources
Beginning Cash Balance $ 16.4 $ 13.3 $ 34.6 $ 24.6 $ 6.6 $ 5.0 $ 16.4
Estimated Interest Income 0.1 0.1 0.1 - 0.0 0.0 0.3
GSMC Loan (2) - 33.0 - 12.0 - - 45.0
______ _______ _______ ______ _______ ______ _______
$ 16.5 $ 46.3 $ 34.7 $ 36.6 $ 6.6 $ 5.0 $ 61.7
Cash Requirements
Interest Expense
Current Coupon Convertible Debentures (3) $ - $ - $ - $ 27.7 $ - $ - $ 27.7
Zero Coupon Convertible Debentures - - - - - - -
Floating Rate Notes - - 2.9 - - 2.9 5.8
14% Debentures - - 5.4 - - - 5.4
Working Capital - - - - - - -
_______ _______ _______ ______ ________ _______ _______
Total Interest Expense $ - $ - $ 8.3 $ 27.7 $ - $ 2.9 $ 38.9
Total G&A Expenses 2.4 1.6 1.9 1.7 1.7 1.7 10.8
Swap Expenses 0.8 - - 0.6 - 0.4 1.8
Repayment of Unsecured Debt (2) - 10.2 - - - - 10.2
_______ _______ _______ ______ ________ _______ _______
Total Cash Requirements $ 3.2 $ 11.8 $ 10.1 $ 30.0 $ 1.7 $ 5.0 $ 61.7
Ending Cash Balance (Deficit) (4) $ 16.4 $ 13.3 $ 34.6 $ 24.6 $ 6.6 $ 5.0 $ 0.0 $ 0.0
<PAGE>
<PAGE> 2
<FN>
(1) All numbers have been rounded to the nearest $100,000.
(2) Assumes concurrent funding of GSMC Loan and termination of Investment Agreement on November 10,
1995.
(3) Interest payment on the Current Coupon Convertible Debentures scheduled for December 31, 1995 is
payable on January 2, 1996.
(4) Assumes waiver of the net cash flow sweep and interest reserve requirements upon signing of the
Merger Agreement.
</FN>
</TABLE>
<PAGE>
<PAGE> 3
Schedule B
<TABLE>
<CAPTION>
Maximum Permitted RCPI Liabilities
as of December 31, 1995
<S> <C>
Outstanding Debt: (1)
Current Coupon Convertible Debentures $213,170,000
Zero Coupon Convertible Debentures 360,283,410
Floating Rate Notes 117,285,234
GSMC Loan (2) 33,467,500
14% Debentures 75,787,500
Total Outstanding Debt $799,993,644
Other Liabilities:
Swaps (3) 10,000,000
Transaction Costs (4) 8,000,000
Liquidation Expenses and Other Liabilities (see Attachment 1) 5,588,196
Zell Breakup Fee and Related Expenses (5) 11,575,000
Total Other Liabilities(6) $ 35,163,196
Total Liabilities $835,156,840
<FN>
(1) Includes accrued interest, except in the case of the Current Coupon
Convertible Debentures which is payable on January 2, 1996.
(2) Assumes 10% per annum fixed rate interest accrual, compounded
quarterly.
(3) Subject to adjustment to reflect changes in interest rates following
the date of this Agreement.
(4) Includes only professional fees to PaineWebber, Weil, Gotshal &
Manges, Shearman & Sterling, and expense liabilities payable to GS,
GSMC and Whitehall under existing agreements. This amount will be
increased by the amount, if any, by which the expense liabilities
payable to GS, GSMC and Whitehall under existing agreements exceed
$750,000.
(5) Such amount shall be increased by the interest accrued from the 90th
day after termination of the Combination Agreement on a portion of
such amount equal to $9,575,000 at 8% per annum, compounded
semiannually.
<PAGE>
<PAGE> 4
(6) Such liabilities do not include Property-related bankruptcy costs and
expenses of the Borrower to be assumed by RCPI pursuant to
Section 5.2(e) hereof.
</FN>
</TABLE>
-5-
<PAGE>
<PAGE> 5
Attachment 1
Other Liabilities
(Amounts estimated as of December 31, 1995)
All Permitted Litigation and any expenses incurred by RCPI in connection
therewith and any indemnity payments due from RCPI to its officers and
directors in connection therewith.
<TABLE>
<S> <C>
Audit Fees $ 150,000
Property Appraisal 150,000
Investor Relations Consulting 150,000
Consulting Fees 20,000
Office space lease (future cash rent to the end of the lease) 770,000
Tax Return Preparation Fees 10,000
Directors' Fees and Expenses 5,000
Property Inspection 7,500
Registrar and Transfer Agent Fees 35,000
Dividend Reinvestment Plan 2,000
Investor Communications 50,000
Taxes 2,500
Data Processing 5,000
Travel and Reimbursable Expenses 3,000
Telephone Service 3,000
Miscellaneous 127,000
Office Equipment Leases 26,100
EDGAR Filings -- Merrill Corporation 25,000
Payroll -- Salaries 20,745
Payroll -- Taxes 19,702
Payroll -- Incentive Savings Plan 3,166
Contractual Severance Pay 1,602,000
Contractual Severance Benefits 152,429
Retirement Plan 513,000
Directors' and officers' insurance 1,736,054
Total $5,588,196
</TABLE>
<PAGE>
<PAGE> 1
EXHIBIT A
FORM OF
CERTIFICATE OF INCORPORATION
OF
[THE SURVIVING COMPANY]
1. Name. The name of the corporation is [Name] (the
"Corporation").
2. Address; Registered Office and Agent. The address of the
Corporation's registered office is 32 Loockerman Square, Suite L-100, City
of Dover, County of Kent, State of Delaware; and its registered agent at
such address is The Prentice-Hall Corporation System, Inc.
3. Purposes. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law.
4. Number of Shares. The total number of shares of stock that the
Corporation shall have authority to issue is: One thousand (1,000), all of
which shall be shares of Common Stock of the par value of one cent ($.01)
each.
5. Election of Directors. The number of directors shall be as
from time to time fixed by, or in the manner provided in, the By-laws of
the Corporation. Members of the Board of Directors of the Corporation (the
"Board") may be elected either by written ballot or by voice vote.
6. Limitation of Liability. No director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that this
provision shall not eliminate or limit the liability of a director (a) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under section 174
of the General Corporation Law or (d) for any transaction from which the
director derived any improper personal benefits.
Any repeal or modification of the foregoing provision shall not
adversely affect any right or protection of a
<PAGE>
<PAGE> 2
director of the Corporation existing at the time of such repeal or
modification.
7. Indemnification.
7.1 To the extent not prohibited by law, the Corporation
shall indemnify any person who is or was made, or threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the
Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative,
is or was a director or officer of the Corporation or its predecessor, or
at the request of the Corporation or its predecessor, is or was serving as
a director or officer of any other corporation or in a capacity with
comparable authority or responsibilities for any partnership, joint
venture, trust, employee benefit plan or other enterprise (an "Other
Entity"), against judgments, fines, penalties, excise taxes, amounts paid
in settlement and costs, charges and expenses (including, without
limitation, attorneys' fees, disbursements and other charges). Persons who
are not directors or officers of the Corporation or its predecessor (or
otherwise entitled to indemnification pursuant to the preceding sentence)
may be similarly indemnified in respect of service to the Corporation or
its predecessor or to an Other Entity at the request of the Corporation or
its predecessor to the extent the Board at any time specifies that such
persons are entitled to the benefits of this Section 7.
7.2 The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses,
including attorneys' fees and disbursements, incurred in connection with
any Proceeding, in advance of the final disposition of such Proceeding;
provided, however, that, if required by the General Corporation Law, such
expenses incurred by or on behalf of any director or officer or other
person may be paid in advance of the final disposition of a Proceeding only
upon receipt by the Corporation of an undertaking, by or on behalf of such
director or officer (or other person indemnified hereunder), to repay any
such amount so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right of appeal that such
director, officer or other person is not entitled to be indemnified for
such expenses.
7.3 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall not be deemed exclusive of
<PAGE>
<PAGE> 3
any other rights to which a person seeking indemnification or reimbursement
or advancement of expenses may have or hereafter be entitled under any
statute, this Certificate of Incorporation, the By-laws of the Corporation
(the "By-laws"), any agreement, any vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office.
7.4 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall continue as to a person who has ceased to be a director or officer
(or other person indemnified hereunder) and shall inure to the benefit of
the executors, administrators, legatees and distributees of such person.
7.5 The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of an Other
Entity, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Section 7, the
By-laws or under section 145 of the General Corporation Law or any other
provision of law.
7.6 The provisions of this Section 7 shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Section 7 is in effect and
any other person entitled to indemnification hereunder, on the other hand,
pursuant to which the Corporation and each such director, officer, or other
person intend to be, and shall be, legally bound. No repeal or
modification of this Section 7 shall affect any rights or obligations with
respect to any state of facts then or theretofore existing or thereafter
arising or any proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts.
7.7 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent
jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board,
its independent legal counsel and its stockholders) to have made a
determination
<PAGE>
<PAGE> 4
prior to the commencement of such action that such indemnification or
reimbursement or advancement of expenses is proper in the circumstances nor
an actual determination by the Corporation (including its Board, its inde-
pendent legal counsel and its stockholders) that such person is not
entitled to such indemnification or reimbursement or advancement of
expenses shall constitute a defense to the action or create a presumption
that such person is not so entitled. Such a person shall also be
indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such proceeding.
7.8 Any director or officer of the Corporation serving in any
capacity (a) another corporation of which a majority of the shares entitled
to vote in the election of its directors is held, directly or indirectly,
by the Corporation or (b) any employee benefit plan of the Corporation or
any corporation referred to in clause (a) shall be deemed to be doing so at
the request of the Corporation.
7.9 Any person entitled to be indemnified or to reimbursement
or advancement of expenses as a matter of right pursuant to this Section 7
may elect to have the right to indemnification or reimbursement or
advancement of expenses interpreted on the basis of the applicable law in
effect at the time of the occurrence of the event or events giving rise to
the applicable Proceeding, to the extent permitted by law, or on the basis
of the applicable law in effect at the time such indemnification or
reimbursement or advancement of expenses is sought. Such election shall be
made, by a notice in writing to the Corporation, at the time
indemnification or reimbursement or advancement of expenses is sought;
provided, however, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be
determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.
8. Adoption, Amendment and/or Repeal of By-Laws. The Board may
from time to time adopt, amend or repeal the By-laws of the Corporation;
provided, however, that any By-laws adopted or amended by the Board may be
amended or repealed, and any By-laws may be adopted, by the stockholders of
the Corporation by vote of a majority of the holders of shares of stock of
the Corporation entitled to vote in the election of directors of the
Corporation.
<PAGE>
<PAGE> 1
EXHIBIT B
FORM OF RELEASE
RELEASE, dated as of November __, 1995, made by
[RCPI][Investor][GSMC][GS] (together with its predecessors, successors and
assigns, the "Releasor") in favor of each of the Released Parties (as
defined herein).
This Release is being executed and delivered pursuant to Section
[4.2(j)] [4.3(a)] of the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Rockefeller Center Properties, Inc.,
a Delaware corporation, RCPI Holdings Inc., a Delaware corporation, RCPI
Merger Inc., a Delaware corporation and a wholly owned subsidiary of RCPI
Holdings Inc., and the Investors named therein. Capitalized terms used but
otherwise not defined herein shall have the meanings ascribed to such terms
in the Merger Agreement.
The Releasor does hereby release and forever discharge (on behalf of
itself and its Affiliates) the Released Parties from any and all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, obligations, variances, trespasses, damages, judgments, extents,
executions, claims, counterclaims and demands of any kind relating to RCPI
(collectively, "Claims"), whether in law, admiralty, or equity, that the
Releasor or any of its Affiliates ever had, now has, or hereafter can,
shall, or may have, for, upon, or by reason of any matter, cause, or thing
from the beginning of the world until the execution of this Release arising
from or relating to (a) any breach of contract by any Released Party, but
only if such breach occurred prior to the date of this Release, or (b) to
the extent not arising out of a breach of contract, actions or omissions of
any Released Party with respect to the Releasor or any of its Affiliates,
but only if such actions or omissions occurred prior to the date of this
Release. For purposes of this Release, the term "Released Parties" means
[RCPI] [each of GSMC, GS and each of the Investors] and its Affiliates and
Agents (each in its capacity as such) and their respective predecessors,
successors and assigns.
Notwithstanding anything to the contrary herein, the Releasor does
not hereby release any Released Party from the performance of any
continuing obligation that such Released Party has under or relating to any
agreement, arrangement or understanding (whether oral or written) whose
terms provide that the beneficiary of any such obligation is the Releasor
or any of its Affiliates, including, without limitation, the
<PAGE>
<PAGE> 2
Merger Agreement, the Loan Documents and any other agreements executed in
connection with the Loan Documents, and the Releasor does not hereby
release any Released Party from any Claims arising from and after the
execution hereof relating to such Released Party's performance of any such
obligations.
This Release is not intended to confer upon any person other than
each of the Released Parties any rights or remedies hereunder.
This Release shall be governed by and construed in accordance with
the laws of the State of New York (other than its rules of conflicts of law
to the extent the application of the laws of another jurisdiction would be
required thereby).
IN WITNESS WHEREOF, the Releasor has caused this Release to be signed
by its officer thereto duly authorized as of the date first above written.
[RELEASOR]
By:___________________
Name:
Title:
<PAGE>
<PAGE> 1
EXHIBIT C
Investor Commitments
<TABLE>
<CAPTION>
Investor Commitment
<S> <C>
Whitehall Street Real Estate Limited Partnership V $134,031,880
Rockprop, L.L.C. $ 15,639,686
David Rockefeller $ 15,639,686
Exor Group S.A. $ 70,387,190
Troutlet Investments Corporation $ 70,387,190
</TABLE>
<PAGE> 1
Exhibit 17
November 7, 1995
Rockprop, L.L.C.
David Rockefeller
Exor Group S.A.
Troutlet Investments Corporation
Reference is made to (i) the Letter Agreements, dated
October 1, 1995, as amended by the Letter Agreement, dated October 6, 1995,
among Whitehall Street Real Estate Limited Partnership V, Goldman, Sachs &
Co. ("GS"), Goldman Sachs Mortgage Company ("GSMC"), Tishman Speyer
Properties, L.P. and David Rockefeller, as amended by the Letter Agreement,
dated October 11, 1995, and the Letter Agreement, dated October 16, 1995,
among the parties hereto (collectively, the "Investor Group Letter"),
relating to their proposal to acquire Rockefeller Center Properties, Inc.
("RCPI") and (ii) the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among RCPI, RCPI Holdings Inc., a Delaware
corporation ("Parent"), RCPI Merger Inc., a Delaware corporation and a
wholly owned subsidiary of Parent, and the Investors named therein.
Capitalized terms used herein but not otherwise defined herein shall have
the meanings ascribed thereto in the Investor Group Letter.
The parties hereto hereby agree as follows:
1. Rockprop, L.L.C. ("Rockprop") shall be substituted for
Tishman Speyer as a party to the Investor Group Letter, as amended hereby,
and each of the parties consents to Tishman Speyer's assignment to Rockprop
of its rights and obligations under the Investor Group Letter, as amended
hereby. Rockprop hereby agrees to expressly assume all obligations of
Tishman Speyer under the Investor Group Letter, as amended hereby, and
Tishman Speyer shall be released from any and all obligations under the
Investor Group Letter. For purposes of the Investor Group Letter, as
amended hereby, all references to GS or GSMC shall be deemed to be
references to Whitehall and neither GS nor GSMC shall have any obligations
under the Investor Group Letter, as amended hereby.
2. Notwithstanding anything to the contrary in the Investor
Group Letter, the break up fees provided for in
<PAGE>
<PAGE> 2
Sections 7.5(b) and (c) of the Merger Agreement shall be allocated among
the Investors as follows:
50.000% to Whitehall
4.545% to Rockprop
4.545% to Rockefeller
20.455% to Exor Group S.A.
20.455% to Troutlet Investments Corporation,
provided that the above allocation shall be adjusted to reflect any changes
in the respective level of participation of each of the parties to the
Investor Group Letter pursuant to paragraph 5 below (such percentages, as
they may be adjusted pursuant to the foregoing proviso, are referred to
herein as the "Allocation Percentages").
3. Any amount received from RCPI (the "RCPI Amount")
pursuant to Section 7.5(d) of the Merger Agreement shall be allocated among
the Investors pro rata based on the relative amounts of reasonable expenses
that such Investor has actually incurred after September 28, 1995 in
connection with the preparation, negotiation, execution and performance of
the Merger Agreement and the consummation of the transactions contemplated
thereby, including, without limitation, all reasonable fees and expenses of
such Investor's Agents (as defined in the Merger Agreement) ("Expenses").
If the RCPI Amount is insufficient to reimburse each of the Investors for
its incurred Expenses, then the amount by which the aggregate amount of
Expenses incurred by all of the Investors exceeds the RCPI Amount shall be
funded by the Investors pro rata based on the Investors' Allocation
Percentages. If the Merger is consummated as contemplated by the Merger
Agreement, Parent shall fund the Expenses incurred by each of the
Investors.
4. Parent shall exercise each of its rights (each, an
"Approval Right") under the Merger Agreement to take any action or approve,
consent to or waive any action or matter only after giving notice to each
Investor of such action or matter giving rise to such Approval Right,
consulting with each Investor and receiving each Investor's instructions
with respect to such Approval Right, provided that the failure of any
Investor to provide Parent with such instructions within one business day
following Parent's giving of notice to such Investor shall be deemed an
approval by such Investor of Parent's exercise of its Approval Right at
issue. In responding to Parent, each Investor hereby agrees to be bound by
the same degree of promptness, reasonableness and good faith as is Parent
under the Merger Agreement with respect to the Approval Right at issue.
Any Investor that objects to any exercise by Parent of any Approval Right
is hereinafter referred to as an "Objecting Investor."
5. Subject to the provisions of this paragraph 5, Parent
shall have the right to exercise any such Approval Right over the objection
of an Objecting Investor; provided that upon such exercise such Objecting
Investor may
<PAGE>
<PAGE> 3
terminate its rights and obligations under the Merger Agreement and the
Investor Group Letter, as amended hereby (collectively, the "Agreements"),
including, without limitation, its right to receive Expense reimbursement
and its obligation to bear its share of Expenses in accordance with
paragraph 3 above. If such Objecting Investor so terminates its rights
and obligations, Parent may not exercise such Approval Right unless (a)
each Investor other than the Objecting Investor (each a "Remaining
Investor") shall assume in writing its pro rata share (based on the
relative Allocation Percentages of the Remaining Investors) of the
obligations (and inure to its pro rata share of the benefits) of such
Objecting Investor under the Agreements, (b) each of the Investors
(including other Objecting Investors, if any) shall release and forever
hold harmless such Objecting Investor from any and all claims, demands,
actions, suits, causes of action or liabilities (collectively, "Claims")
arising out of or relating to such Objecting Investor's failure to perform
any of its obligations under any Agreement from and after the execution of
the release and (c) each of the Remaining Investors shall indemnify such
Objecting Investor against any judgments, fines, penalties, amounts paid in
settlement, and reasonable costs, charges and expenses (including, without
limitation, attorneys' fees, disbursements and other charges) arising out
of or relating to any Claim brought by any third party against such
Objecting Investor based on such Objecting Investor's failure to perform
any of its obligations under any Agreement from and after the execution of
the release described in clause (b), provided that such indemnified
Objecting Investor gives the other Investors prompt notice of any Claim and
does not settle any such Claim without the Investors' consent, which shall
not be unreasonably withheld. If any Remaining Investor shall fail to
fulfill its obligations in accordance with the immediately preceding
sentence, then such Remaining Investor shall be deemed to be an Objecting
Investor that has elected to terminate its rights and obligations under the
Agreements. If Whitehall shall be the Objecting Investor and shall elect
to terminate its rights and obligations as described in this paragraph 5,
then Whitehall shall sell to the other Investors all of the issued and
outstanding shares of common stock of Parent at a price equal to the price
that Whitehall paid for such shares.
6. Except as modified hereby or by the terms of the Merger
Agreement, the parties hereto agree that the Investor Group Letter shall
continue in full force and effect.
7. This letter shall be governed by and construed in
accordance with the laws of the State of New York (other than its rules of
conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby).
<PAGE>
<PAGE> 4
8. This letter may be executed in one or more counterparts,
each of which shall be an original and all of which, when taken together,
shall constitute one and the same instrument.
If the foregoing correctly sets forth the agreement reached
among the parties hereto with respect to the subject matter hereof, kindly
execute this letter in the space provided below, at which time this letter
shall serve as a binding and enforceable agreement among the parties
hereto.
Very truly yours,
WHITEHALL STREET REAL ESTATE LIMITED
PARTNERSHIP V
GOLDMAN, SACHS & CO.
GOLDMAN SACHS MORTGAGE
COMPANY
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title:
ACCEPTED AND
AGREED TO:
ROCKPROP, L.L.C.
By: Tishman Speyer Crown Equities,
its Managing Member
By: Tishman Speyer Associates
Limited Partnership, General Partner
By: /s/ Jerry I. Speyer
Name: Jerry I. Speyer
Title: General Partner
By: TSE Limited Partnership,
General Partner
By: /s/ Charles H. Goodman
Name: Charles H. Goodman
Title: General Partner
<PAGE>
<PAGE> 5
/s/ David Rockefeller *
David Rockefeller
*By: /s/ Peter W. Herman
Peter W. Herman
Attorney-in-Fact
EXOR GROUP S.A.
By: /s/ Ernest Rubenstein
Ernest Rubenstein
Attorney-in-Fact
TROUTLET INVESTMENTS CORPORATION
By: /s/ Squire N. Bozorth
Squire N. Bozorth
Attorney-in-Fact
<PAGE> 1
Exhibit 18
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement, dated November 7, 1995, by and
among Rockefeller Center Properties, Inc. ("RCPI") and Goldman Sachs
Mortgage Company ("GSMC").
WHEREAS, RCPI, RCPI Holdings, Inc, RCPI Merger Inc., Whitehall
Street Real Estate Limited Partnership V, Rockprop, L.L.C., David
Rockefeller, Exor Group S.A., Troutlet Investments Corporation and Goldman
Sachs Mortgage Company have entered into an Agreement and Plan of Merger
(the "Merger Agreement"), dated of even date herewith;
WHEREAS, in connection therewith GSMC has agreed to make
available to RCPI additional credit as more specifically provided therein
and herein on the terms and conditions set forth therein and herein.
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. GSMC shall make available to RCPI pursuant to this
Supplemental Agreement additional credit (the "Additional Credit") (secured
pursuant to existing security arrangements provided for in the Loan
Documents, as defined in the Loan Agreement, dated as of December 18, 1994,
among RCPI, the Lenders parties thereto, and GSMC, as Agent (the "Loan
Agreement"), as supplemented pursuant to this Supplemental Agreement) in an
aggregate principal amount not to exceed the sum of (A) $33 million plus
(B) $12 million to pay Permitted Expenses (as defined in the Merger
Agreement) if the Closing Date (as defined in the Merger Agreement) shall
not have occurred on or before December 31, 1995, in each case under the
terms of the Loan Agreement, as supplemented pursuant to this Supplemental
Agreement.
2. The parties hereto hereby agree that the terms of the
Loan Agreement, as hereby supplemented or expressly modified, shall apply
to the Additional Credit and that the Loan Agreement is hereby supplemented
to provide that (a) of the $33 million described in clause (A) of paragraph
1 above, an amount sufficient to pay all interest that will become due from
RCPI to Whitehall Street Real Estate Limited Partnership V ("Whitehall")
and GSMC on or before December 31, 1995 shall be available only to pay such
interest and (b) of the $12 million described in clause (B) of paragraph 1
above, an amount sufficient to pay all interest that will become due from
RCPI to Whitehall and
<PAGE>
<PAGE> 2
GSMC on or before March 31, 1996 shall be available only to pay such
interest.
3. The parties hereto hereby agree that (a) the amounts to
be lent by GSMC pursuant to this Supplemental Agreement may be borrowed by
RCPI at any time and from time to time after the date hereof, (b) once
borrowed, such amounts may be prepaid by RCPI at any time (without
penalty), (c) once prepaid, such amounts may not be reborrowed by RCPI and
(d) any such amounts shall accrue interest at a rate equal to 10% per annum
(compounded quarterly) from the date borrowed to the date due; provided
that if any amounts loaned by GSMC pursuant to this Supplemental Agreement
shall not have been repaid by the earlier of March 31, 1996 and the
termination of the Merger Agreement pursuant to Sections 6.1(b), 6.1(f) or
6.1(g) thereof, then any such borrowings (including accrued interest) that
remain outstanding shall be subject to all of the terms and conditions
(including interest rate and prepayment provisions) contained in the Loan
Agreement without give effect to the modifications of the terms thereof
effected by this Supplemental Agreement.
4. Except as otherwise expressly modified by this
Supplemental Agreement with respect to the Additional Credit provided
hereunder, all of the terms and conditions of the Loan Agreement shall
remain in full force and effect.
<PAGE>
<PAGE> 3
5. This Supplemental Agreement may be executed in one or
more counterparts, each of which shall be an original and all of which,
when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has signed or caused
this Agreement to be signed as of the date first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By: /s/ Steven A. Sandberg
Name: Steven A. Sandberg
Title: Executive Vice President
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate
Funding Corp., General Partner
By: /s/ Steven T. Mnuchin
Name: Steven T. Mnuchin
Title: President
<PAGE> 1
Exhibit 19
November 7, 1995
Goldman, Sachs & Co.
Whitehall Street Real Estate Limited Partnership V
85 Broad Street
New York, N.Y.
Attention: Daniel M. Neidich
Dear Dan:
The Board of Directors of Rockefeller Center Properties, Inc.
("RCPI") has approved the execution and delivery by RCPI of the Agreement
and Plan of Merger in the form attached hereto (the "Agreement") and,
subject to the terms and conditions thereof, has determined to recommend to
stockholders of RCPI approval of the Agreement. In connection with the
execution of the Agreement, Goldman, Sachs & Co. ("Goldman") and Whitehall
Street Real Estate Limited Partnership V ("Whitehall") have agreed that,
should the stockholders of RCPI fail to approve the Agreement at the
Stockholders' Meeting called for such purpose (unless such failure results
from RCPI's breach of the Agreement), and should RCPI elect (within thirty
days of such Meeting) to make a rights offering upon the terms described
herein (the "Rights Offering"), RCPI, Goldman and Whitehall will take or
cause to be taken the following.
1) RCPI would conduct a $200 million publicly registered
Rights Offering in which each stockholder as of the
record date of the Rights Offering would be offered the
right to acquire newly issued shares of RCPI common stock
("Common Stock"), at a price per share (the "Rights
Offering Price") set by the Board in its discretion,
which in no event will be less than $6.00 per share but
which may be less than the "fair market value of Common
Stock" as defined in Section 6.2(f) of the Warrant
Agreement, dated as of December 18, 1994, between RCPI
and Chemical Bank, Warrant Agent, as amended (the
"Warrant Agreement"), as of the date of the Rights
Offering and as of the date of the closing of the Rights
Offering. The rights offered in the Rights Offering
would be freely transferable and participants in the
Rights Offering would be offered the right to
<PAGE>
<PAGE> 2
oversubscribe. Appropriate measures would be included in
the Rights Offering to ensure, to the extent practicable,
compliance with the Limit contained in Article NINTH of
RCPI's Restated Certificate of Incorporation, as amended.
2) The Warrant Agreement and the SAR Agreement, dated as of
December 18, 1994, between the Company and Chemical Bank,
as SAR Agent, as amended (the "SAR Agreement"), would be
amended to provide (i) that any and all Stock
Appreciation Rights ("SARs") are convertible to Warrants
under the Warrant Agreement ("Warrants") only at the
option of the Holders thereof exercised from time to time
and subject to the limitations contained in the RCPI
Restated Certificate of Incorporation, as amended and
(ii) any and all Warrants may be converted to SARs at the
option of the Holder thereof exercised from time to time,
provided that to the extent the aggregate 14% Debentures
issued in connection with SARs issued upon any such
conversions to SARs and conversions to SARs of rights
issued pursuant to paragraph 8 of this letter agreement
exceed the principal amount of $6,000,000, such excess
14% Debentures will be prepayable by the Company at any
time at par.
3) Proceeds of the Rights Offering would be applied to
redeem, at the redemption price (with the prepayment
premium) in effect at the time of repayment, the Floating
Rate Notes ("Floating Rate Notes") outstanding under the
Loan Agreement, dated as of December 18, 1994, among
RCPI, the Lenders parties thereto and Goldman Sachs
Mortgage Company, as Agent, as amended and supplemented,
to provide RCPI with working capital and to reimburse
Goldman, Whitehall and their affiliates the $750,000 of
expenses incurred in connection with the enforcement of
their rights (including the proposed securitization of
the Floating Rate Notes).
4) Any 14% Debentures ("14% Debentures") issued pursuant to
the Debenture Purchase Agreement between RCPI and
Whitehall, dated as of December 18, 1994, as amended (the
"Debenture Purchase Agreement") would remain outstanding
(subject to the modifications in the terms thereof
described below).
<PAGE>
<PAGE> 3
5) The registration rights provisions contained in section
four of the Warrant Agreement, and section five of the
SAR Agreement shall not be applicable to the registration
statement filed in connection with the Rights Offering.
6) The provisions contained in section six of the Warrant
Agreement shall continue to be applicable so that
immediately following the closing, the holders of the
Warrants and SARs hold, on account only of their holdings
of Warrants and SARs, a 19.9% fully diluted equity
ownership position in RCPI (or such lower percentage as
may exist as a result of any exercises of Warrants or
SARs prior to the closing of the Rights Offering).
Thereafter, section 6 of the Warrant Agreement will be
amended to provide that (i) the "fair market value of
Common Stock" shall be based on a 30-day, rather than a
90-day, trailing average, (ii) in the event of issuances
of Common Stock for cash or property at a price less than
the "fair market value of Common Stock" the consent of
the holders of the Warrants will not be required, and
(iii) in the future, the Warrants and SARs will not
receive "anti-dilution protection" with respect to
issuances of Common Stock for cash or property at a price
at least equal to the then "fair market value of Common
Stock".
7) In the event RCPI decides to engage an underwriter with
respect to the Rights Offering, Goldman will have the
opportunity (to be exercised within a reasonable period
of time) to underwrite and lead manage the Rights
Offering on customary terms (i.e., at a 3% fee for the
underwriting commitment and an additional 3% fee for any
Rights taken up pursuant thereto). PaineWebber will have
the opportunity (to be exercised within a reasonable
period of time) to co-underwrite and co-manage such
percentage as PaineWebber shall determine (within such
reasonable period of time) up to 50% of the Rights
Offering on the same pro rata terms.
8. In connection with the Rights Offering, Whitehall will be
granted rights to purchase that number of shares of
Common Stock as shall equal 42,000,000 divided by the
Rights Offering Price plus $1. The exercise price of
such rights shall equal the Rights Offering Price plus $1
per share of Common Stock until
<PAGE>
<PAGE> 4
the second anniversary of the closing of the Rights
Offering and the Rights Offering Price plus $1.50 per
share of Common Stock for the period beginning on the
second anniversary of such closing and ending on the
third anniversary of such closing. Any such rights to
purchase Common Stock (i) shall be issued pursuant to an
agreement containing terms identical to those contained
in the Warrant Agreement, as amended pursuant to this
letter agreement, except that such agreement shall not
contain any of the rights contained in Sections 11.2,
11.3 and 11.4 of the Warrant Agreement, and (ii) upon any
conversion to SARs, shall not be entitled to the rights
contained in Article 3 and Section 10.1 of the SAR
Agreement. Any issuance of Common Stock pursuant to such
rights to purchase Common Stock shall be deemed to be
issued at the "fair market value of Common Stock" under
the Warrant Agreement. In addition, any such additional
rights to purchase Common Stock that are not exercised by
the third anniversary of such closing shall expire.
9. The following would occur simultaneously with closing of,
and only upon the full subscription under, the Rights
Offering:
(a) The subordination of the 14% Debentures upon the
terms provided in the Intercreditor Agreement
attached hereto as Exhibit A to up to $375 million
principal amount of existing or subsequently issued
senior debt of RCPI which may be secured pursuant
to the Collateral Trust Agreement. If the
Company's Board of Directors (as reconstituted
pursuant to (f) below) determines that the
Company's Zero Coupon Convertible Debentures will
not remain outstanding, the 14% Debentures may be
subordinated to up to a total $700,000,000
principal amount of senior RCPI debt which may be
secured pursuant to the Collateral Trust Agreement;
in such event the "pay-in-kind" or accrual feature
of the Debentures (as set forth in Section 2.03 (b)
of the Debenture Purchase Agreement) will be
deleted.
Following the closing, RCPI may effect, by action
of its Board of Directors reconstituted in
accordance with
<PAGE>
<PAGE> 5
paragraph 9(f) of this letter agreement, a credit
lease financing with a lease from, or guaranteed
by, General Electric Company that would involve the
release from the Collateral Trust Agreement of
property subject to such lease and the elimination
of the subordination of the 14% Debentures to any
other debt of RCPI. In connection with any such
credit lease financing, Goldman shall have the
opportunity (to be exercised within a reasonable
period of time) to lead-manage the financing and
PaineWebber shall have the opportunity (to be
exercised within a reasonable period of time) to
co-manage 25% of the financing (and receive 25% of
the fees in connection therewith), in each case on
customary terms.
(b) The amendment of the Debenture Purchase Agreement
in accordance with Exhibit B hereto.
(c) The amendment of the Warrant Agreement and SAR
Agreement corresponding with amendments to the
Debenture Purchase Agreement set forth in (b)
above.
(d) The Letter Agreement, dated December 18, 1994, by
and among RCPI, Whitehall and Goldman shall be
amended to provide that the 62.5% special
supermajority voting requirement for certain
stockholder action be reduced upon conversions or
exercises of SARs or Warrants from time to time to
a percentage determined in accordance with the
following formula:
C + W + S
0.5006 X _________________
C
where:
C = Aggregate number of shares of common stock
then outstanding
<PAGE>
<PAGE> 6
W = Aggregate number of Warrants then outstanding
S = Aggregate number of SARs then outstanding.
(e) The appointment by RCPI of Tishman Speyer
Properties, L.P. as the exclusive Managing Agent
for the Rockefeller Center Properties for a three-
year term, subject to renewal at the option of the
Company for two successive one-year terms, and for
a fee of 1.5% of gross revenues plus a one-half
standard commission override. In addition, Tishman
Speyer Properties, L.P. will provide cleaning and
other property related services on customary terms
as approved by the RCPI Board.
(f) The appointment to the RCPI Board of Directors of
Jerry Speyer and of an independent director
selected by Whitehall from among a list of three
new potential directors (who have stature in the
real estate industry and are not affiliated with
direct competitors of Goldman in the principal
investing business or in real estate investment
banking) nominated by the existing Board, the
filling by Goldman of its existing seat on the
Board, and the continuation on the Board of two of
the current directors. The reconstituted Board
will elect a new Chairman.
(g) Any and all conforming changes necessary to effect
the foregoing.
<PAGE>
<PAGE> 7
Please indicate the agreement of Goldman and Whitehall to the
foregoing by signing and returning to me the enclosed copy of this letter
agreement.
Sincerely,
/s/ Steven A. Sandberg
Steven A. Sandberg
Executive Vice President
Agreed:
Goldman, Sachs & Co.
By /s/ Goldman, Sachs & Co.
Whitehall Street Real
Estate Limited Partnership V
By Whitehall Advisors L.P. V
General Partner
By Whitehall Advisors, Inc. V
General Partner
By /s/ Daniel M. Neidich
<PAGE>
<PAGE> 1
EXHIBIT A
INTERCREDITOR AGREEMENT
This Intercreditor Agreement is made as of _______________,
1995 (this "Agreement"), between [NAME OF LENDER], a ____________________
("Lender"), and [the Holders of the 14% Debentures (the "Debenture
Holders").
WITNESSETH:
WHEREAS, Rockefeller Center Properties, Inc., a Delaware
corporation (the "Company"), and the Lender, as agent and lender, have
entered into a Loan Agreement dated as of the date hereof (as amended or
replaced pursuant to its terms (including without limitation Section _____
thereof), the "Loan Agreement"), pursuant to which the Lender and the other
lenders thereunder (together with their respective successors and assigns,
the "Note Holders") have agreed to make loans to the Company in the
aggregate principal amount of $___________, such loans to be evidenced by
one or more notes (as amended or replaced pursuant to the terms of the Loan
Agreement, the "Notes") bearing interest at the rate provided for in the
Loan Agreement, including during continuance of an Event of Default
thereunder a rate __% per annum in excess of the rate otherwise applicable
(interest during an Event of Default to the extent it exceeds the rate
otherwise applicable being hereinafter referred to as "Default Interest");
and
WHEREAS, the Company and Debenture Holders have entered into a
Debenture Purchase Agreement dated as of December 18, 1994 (as amended or
replaced pursuant to its terms (including without limitation Section _____
thereof), the "Debenture Purchase Agreement"), pursuant to which Debenture
Holders (together with its successors and assigns, the "Debenture Holders")
has purchased $75,000,000 aggregate principal amount of the Company's 14%
Debentures (as amended or replaced pursuant to the terms of the Debenture
Purchase Agreement, the "Debentures"); and
WHEREAS, for value received and in connection with the
transactions contemplated by the Loan Agreement and the Debenture Purchase
Agreement, the parties hereto desire to enter into this Agreement to
determine the priority, as between the Note Holders and the Debenture
Holders, of the Notes and the Debentures;
<PAGE>
<PAGE> 2
NOW, THEREFORE, the Lender and Debenture Holders hereby agree
as follows:
1. Definitions. All capitalized terms used but not defined
herein shall have the meanings assigned to them in the Debenture Purchase
Agreement and, if not defined therein, the Loan Agreement. All references
herein to "interest" on the Notes (other than Default Interest) shall
include interest (other than Default Interest) accruing (a) at the rate
otherwise applicable to the Notes subsequent to the occurrence of an Event
of Default (including without limitation an Event of Default under Section
____ of the Loan Agreement), whether or not the claim for such interest is
allowed or allowable under the Bankruptcy Code (as defined in Section
______ of the Loan Agreement) or any similar law and (b) at the rate
otherwise applicable to the Notes on overdue principal or interest (other
than Default Interest). "Allowable Amounts" means amounts owing to the
Agent and the Note Holders under Section ______ of the Loan Agreement, but
only in the event that such amounts represent reimbursement or
indemnification for costs, expenses, taxes, losses, liabilities, claims or
damages incurred in respect of acts or omissions by the Agent or any Note
Holder that are beneficial to the Debenture Holders. Solely for the
purpose of this Agreement and notwithstanding any provision of the Loan
Agreement, the Debenture Purchase Agreement or the Collateral Trust
Agreement to the contrary, (x) payments received by the Note Holders shall
be deemed applied (unless otherwise designated by order of a court in the
bankruptcy of the Company) first to Allowable Amounts, then to interest
(other than Default Interest) on the Notes and then to principal of and
premium, if any, on the Notes and (y) payments received by the Debenture
Holders shall be deemed applied (unless otherwise designated by order of a
court in the bankruptcy of the Company) first to Allowable Expenses, then
to interest on the Debentures and then to principal of and premium, if any,
on the Debentures. "Allowable Expenses" means amounts owing to Debenture
Holders and the Debenture Holders under Section 9.04 of the Debenture
Purchase Agreement, but only in the event that such amounts represent
reimbursement or indemnification for costs, expenses, taxes, losses,
liabilities, claims or damages incurred in respect of acts or omissions by
Debenture Holders or any Debenture Holder that are beneficial to the Agent
or the Note Holders.
2. Subordination. Notwithstanding any provision to the
contrary in any of the Loan Documents, Debenture Holders and each Debenture
Holder agree by accepting or having accepted a Debenture that all principal
of, premium, if any, and interest on the Debentures shall be subordinate
<PAGE>
<PAGE> 3
and junior in right of payment to all principal of, premium, if any, and
interest (other than Default Interest) on the Notes and all Allowable
Amounts, to the extent set forth below.
a. Priority in Certain Proceedings. In the event of
(i) any insolvency or bankruptcy case or proceeding, or any receiver-
ship, liquidation, reorganization or other similar case or proceeding
in connection therewith, relative to the Company or to its assets, or
(ii) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (iii) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of the
Company, or any similar event or proceeding relating to the Company
or its assets, then and in any such event the Note Holders shall be
entitled to receive payment in full of all principal of, premium, if
any, and interest (other than Default Interest) on the Notes and all
Allowable Amounts before any amounts shall be paid to Debenture
Holders on account of the Debentures, and to that end, each Note
Holder shall be entitled to receive, for application to the payment
of the Notes held by it (other than payment of Default Interest), any
payment or distribution of any kind or character, whether in cash,
property or securities which may be payable or deliverable in respect
of the Debentures in any such case, proceeding, dissolution, liquida-
tion or other winding up or event, pro-rata on the basis of the
principal amount of the Notes then outstanding.
b. Events of Default Under the Senior Loan Agreement.
In the event and during the continuation of any Event of Default
under the Loan Agreement, no direct or indirect payments shall be
made to the Debenture Holders on account of the Debentures and all
payments owing by the Company on account of any of the Debentures
shall be paid instead to the Note Holders until all amounts then due
(including by reason of acceleration) in respect of principal of,
premium, if any, and interest (other than Default Interest) on the
Notes and all Allowable Amounts shall have been paid in full.
3. Payment to the Note Holders of Certain Amounts Received
by the Debenture Holders. In the event that, notwithstanding the
foregoing, any distribution of assets by the Company or payment by or on
behalf of the Company of any kind or character, whether in cash,
<PAGE>
<PAGE> 4
securities or other property, to which the Debenture Holders would be
entitled but for the provisions of this Agreement, shall be received by the
Debenture Holders before all amounts due in respect of principal of,
premium, if any, and interest (other than Default Interest) on the Notes
and all Allowable Amounts shall have been paid in full, such distribution
or payment shall be held in trust for the benefit of, and shall,
immediately upon receipt thereof, be paid over or delivered to each Note
Holder for application to the payment of Notes (other than payment of
Default Interest) pro-rata on the basis of the principal amount of the
Notes then outstanding.
4. Authorizations to the Note Holders. The Debenture
Holders (x) irrevocably authorize and empower (without imposing any
obligation on) the Note Holders to demand, sue for, collect, receive and
receipt for all payments and distributions in respect to the Debentures
which are required to be paid or delivered to the Note Holders as provided
in this Agreement, and to file and prove all claims therefor and take all
such other action, in the name of the Debenture Holders or otherwise, as
the Note Holders may determine to be necessary or appropriate for the
enforcement of this Agreement; and (y) agree to execute and deliver to the
Note Holders all such further instruments confirming the above
authorization, and all such powers of attorney, proofs of claim, assign-
ments of claim and other instruments, and to take all such other action, as
may be requested by the Note Holders in order to enable the Note Holders to
enforce all claims upon or in respect of the Debentures.
5. No Waiver. No right of the Note Holders to enforce the
provisions contained herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any
act or failure to act, in good faith, by any Note Holder or by any
noncompliance by the Company with the terms, provisions and covenants of
this Agreement, the Loan Agreement, the Notes, the Debenture Purchase
Agreement or the Debentures, regardless of any knowledge thereof which any
Note Holder may have or be otherwise charged with.
6. Subrogation. Subject to the payment in full of all
amounts due in respect of all Notes (other than Default Interest), the
Debenture Holders shall be subrogated to the rights of the Note Holders to
receive distribution of assets of the Company, or payments by or on behalf
of the Company, made on the Notes, until the obligations under the
Debentures shall be fully satisfied.
<PAGE>
<PAGE> 5
7. Benefit of This Agreement. This Agreement is intended
solely to define the relative rights of the Note Holders and the Debenture
Holders and the Company and their respective successors and assigns.
Nothing contained in this Agreement is intended to or shall impair, as
between the Company and the Debenture Holders, the obligation of the
Company, which is absolute and unconditional, to pay to the Debenture
Holders all amounts due or to become due on or in respect of the Debentures
as and when the same shall become due and payable in accordance with the
terms thereof, or is intended to or shall affect the relative rights of the
Debenture Holders and creditors of the Company other than the Note Holders.
8. Further Assurances. The Debenture Holders, at their own
cost, will take all such further actions, including entering into
additional agreements, giving notices to offerees of the Debentures in any
public or private offering and taking such further action as the Note
Holders may reasonably request in order more fully to carry out the intent
and purpose of this Agreement.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. Amendment, Termination and Assignment. This Agreement
may not be amended, modified or terminated without the prior written
consent of each Note Holder or such lesser percent as may be provided in
the Loan Agreement. The Note Holders may assign, sell, transfer or offer
in any public or private offering any of the Notes from time to time, and
any such assignee, purchaser, transferee or holder of a Note shall be
entitled to all of the rights of the Note Holders hereunder with respect to
the Notes so assigned, sold or otherwise transferred.
11. Agent or Trustee. Any payment to Note Holders provided
for herein may be made to any duly authorized agent or trustee on their
behalf, and any actions provided for herein to be taken by any Note Holders
may be taken by any duly authorized agent or trustee acting on their
behalf.
12. No Partnership. Nothing contained in this Agreement, and
no action taken by any party pursuant hereto, is intended to constitute or
shall be deemed to constitute two or more parties hereto a partnership,
association, joint venture or other common entity.
<PAGE>
<PAGE> 6
13. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
and all of which taken together shall constitute a single agreement. This
Agreement shall become effective only upon the execution and delivery of
the Loan Agreement and the closing of the transactions contemplated
thereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
[NAME OF LENDER]
By:_____________________
Name:
Title:
Name of Debenture Holder
The Company hereby acknowledges
and accepts notice of the foregoing
Intercreditor Agreement and agrees to
recognize the rights of the Note Holders
provided therein and to make payments
as provided therein.
Rockefeller Center Properties, Inc.
By:__________________________
Name:
Title:
<PAGE>
<PAGE> 1
EXHIBIT B
SECTION 5
AFFIRMATIVE COVENANTS OF THE COMPANY
The Company hereby covenants and agrees that so long as this
Agreement is in effect and until the Debentures, together with interest,
fees and other obligations hereunder, have been paid in full:
5.01. Information Covenants. The Company will furnish, or
cause to be furnished, to each Holder:
(a) Annual Financial Statements. As soon as available and in
any event within 90 days after the close of 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
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<PAGE> 2
Cash Flow* for such fiscal quarter and (iii) estimates made in good faith
by the Company of the items specified in (ii) above relating to the next
fiscal quarter. For so long as the Company is required to file reports
pursuant to the Securities Exchange Act of 1934, the Company may satisfy
its obligations under Section 5.01(a) and 5.01(c)(i) hereof by delivery to
Whitehall, within the time periods specified in such Sections, of copies of
its reports on Form 10-K and Form 10-Q, respectively, with the Securities
and Exchange Commission.
(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) Mortgage Information. For so long as the Mortgage is
outstanding, copies of all financial information, reports and other
documents received by the Company pursuant to the 1985 Loan Agreement and
the Mortgage promptly upon receipt thereof.
(g) Real Estate Information. As soon as available and in any
event within 60 days after the end of each fiscal quarter of each fiscal
year of the Company during any part of which the Company is the owner of
the Real Estate, a rent roll for the Real Estate, dated as of the last date
of such fiscal quarter, listing (i) each tenant at the Real Estate, (ii)
the net rentable square feet leased by each such tenant, (iii) the annual
rent currently payable by each such tenant and (iv) the expiration date of
each such tenant's lease, and accompanied by a certificate of the President
of the Company as being true and correct and providing the name of any
tenant at the Real Estate which, to the best of the Company's knowledge,
was in default under its lease.
__________________
* Note: this definition will still apply because of the
"pay-in-kind" feature of the 14% Debentures.
<PAGE>
<PAGE> 3
(h) Other Information. With reasonable promptness upon
request, such other information regarding the business, properties or
financial condition of the Company and regarding the Real Estate as any
Holder may reasonably request, subject to compliance with any applicable
confidentiality restrictions agreed to in good faith.
(i) 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 or the Real Estate:
(i) the occurrence of an event or condition consisting of a Default,
specifying the nature and existence thereof and what action the Company
proposes to take with respect thereto, (ii) the pendency or commencement of
any litigation, arbitral or governmental proceeding against the Company in
which damages are sought or environmental remediation demanded which
exceeds $1,000,000 in any instance or $5,000,000 in the aggregate or which
might otherwise materially adversely affect the business, properties,
assets, condition (financial or otherwise) or prospects of the Company or
which might materially adversely affect the Real Estate, (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 or
which might materially adversely affect the Real Estate, (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 which would
materially adversely affect the Real Estate, or (vii) the occurrence of an
event or condition which may render the Company unable to qualify as a REIT
under the Code.
(j) Changes to Indebtedness. Within 30 days prior thereto,
notice of any proposed refinancing or modification of Indebtedness made
pursuant to Section 6.01(i) or Section 6.07.
<PAGE>
<PAGE> 4
5.02. Preservation of Existence and Franchises. The Company
will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights, franchises and authority and
will at all times take all reasonable steps necessary to qualify to be
taxed as a REIT as long as a REIT is accorded substantially the same
treatment under the United States income tax laws from time to time in
effect as under Sections 856-860 of the Code, in effect at the date of this
Agreement, as originally executed.
5.03. Books, Records and Inspections. The Company will keep
complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of generally accepted
accounting principles applied on a consistent basis (including the
establishment and maintenance of appropriate reserves). The Company will
permit, on reasonable notice, any Holder to visit and inspect its books of
account and records and any of its properties or assets and to discuss the
affairs, finances and accounts of the Company with, and be advised as to
the same by, its officers, directors and independent accountants.
5.04. Compliance with Law. The Company will comply in all
material respects with all applicable laws, 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, property
and casualty insurance and business interruption insurance) in such
amounts, covering such risks and liabilities, with such deductibles or
self-insurance retentions and with such carriers as is in accordance with
normal industry practice, and with respect to property and casualty
insurance covering the Real Estate, as is reasonably acceptable to the
Holders.
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
<PAGE>
<PAGE> 5
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 one or more Intercreditor Agreements substantially in the form
attached as Attachment I hereto in respect of payments to be made in
respect of the Debentures and the Notes (as defined therein)
notwithstanding that such terms may alter the provisions set forth herein,
in the Debentures, in the Loan Agreement (as defined therein) or in the
Notes (as defined therein). Each Holder agrees by accepting a Debenture to
be bound by the terms and provisions of the Intercreditor Agreement as if
such Holder were a party thereto.
5.09. Resale of Debentures. The Company, upon the request of
the Required Holders from time to time, will exchange the Debentures for
any other evidences of indebtedness or debt securities, whether notes,
debentures or otherwise (the "New Debt"), and shall enter into any such
agreements, whether in the form of an amendment hereto, an indenture, a
debenture purchase agreement or otherwise (the "New Documents"), as shall
be deemed necessary or desirable by the Required Holders in connection with
the resale of the 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 the same in all material
respects 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 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
<PAGE>
<PAGE> 6
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 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 set forth on Schedule 6.01* and
____________________
* Schedule 6.01 will set forth the 14% Debentures, the
new debt of up to $375 million and the Zero Coupon
Debentures currently outstanding (including accreted
amounts, but with an aggregate outstanding debt limit
at any time (including all accreted amounts but not
including the Debentures) not to exceed $780 million).
Alternatively, the Company may elect to subordinate the
Debentures to up to $700 million of new debt in which
case the provisions of the last sentence of Paragraph
9(a) of the Letter Agreement will apply and the total
debt limit (not including the Debentures) of the
Company will be $700 million.
<PAGE>
<PAGE> 7
any modifications or refinancings thereof in conformity with Section
6.07.
(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) Unsecured Indebtedness in an aggregate amount not to
exceed $30,000,000 at any time outstanding incurred by the Company to
cover working capital needs;
(v) Indebtedness secured by assets acquired in compliance
with Section 6.03 to the extent of (a) 66% of the allocated purchase
price of such assets in the case of non-recourse Indebtedness and (b)
50% of the allocated purchase price of such assets in the case of
recourse Indebtedness; and
(vi) Indebtedness in respect of issuances of Debentures
pursuant to Section 2.01(b),
provided, that in the case of Indebtedness set forth in clauses (iv) and
(v) above, all payments, fees and expenses in respect of such Indebtedness
shall not be deducted from the Net Cash Flow of the Company for purposes of
this Agreement.
6.02. Liens. Except with respect to Permitted Liens and liens
to secure indebtedness permitted by Sections 6.01(i) and 6.01(v), 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
<PAGE>
<PAGE> 8
assets (including sales of accounts receivable or notes with recourse to
it) or (iii) assign any right to receive income.
6.03. 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 material 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 (i) the
Company may merge or be consolidated with any other U.S. corporation so
long as (a) the Company shall be the surviving corporation, (b) after
giving effect to any such transaction, no Default or Event of Default shall
exist, and (c) 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 and (ii) the Company may
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 and may resell or otherwise dispose of such property or assets so
long as after giving effect to any such transaction, no Default or Event of
Default shall exist, including, without limitation, any Default in respect
of Section 6.01.
Notwithstanding anything to the contrary contained in this
Agreement, the Company* may effect a credit lease financing with a lease
from, or guaranteed by, General Electric Company that would involve the
release from the Collateral Trust Agreement of property subject to such
lease and the elimination of the subordination of the Debentures to any
other debt of the Company.
6.04. 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, unless, such arrangement, if treated
as a capital lease, would not result in a Default of Section 6.01.
6.05. ERISA. The Company will not (i) file with any affected
party (as defined in Section 4001 of ERISA) any notice of intent to
terminate any Plan; (ii) adopt any
____________________
* By action of its Board of Directors reconstituted in
accordance with Paragraph 9(f) of the Letter Agreement.
<PAGE>
<PAGE> 9
amendment to any Plan if, after giving effect thereto, the Plan is a plan
described in Section 4021(b) of ERISA; (iii) incur, or permit any ERISA
Affiliate to incur, any liability under Sections 4062(e), 4063 or 4064 of
ERISA in respect of a Plan; (iv) adopt any amendment to a Plan that would
require security to be given to such Plan pursuant to Section 401(a)(29) of
the Code or Section 307 of ERISA; (v) fail, or permit any ERISA Affiliate
to fail, to make a payment to a Plan which would give rise to a lien in
favor of such Plan under Section 302(f) of ERISA or (vi) take, or omit to
take, any action that is reasonably likely to result in the institution of
proceedings by the Pension Benefit Guaranty Corporation to terminate a Plan
pursuant to Section 4042 of ERISA.
6.06. 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 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"). 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 6.06 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.
6.07. Modification or Prepayment of Indebtedness. The Company
will not modify or refinance any Indebtedness set forth on Schedule 6.01 if
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.
The Company will not modify or refinance any Indebtedness which is senior
to the 14% Debentures if the amounts due on such Indebtedness would be
increased. For such time as the Holders and the holders of the zero coupon
Indenture Securities (the "Zero Coupon Debentures") shall be jointly
secured by a Lien on the Real Estate, and other than pursuant to the last
sentence of Paragraph 9(a) of the Letter Agreement of November __, 1994,
the Company will not
<PAGE>
<PAGE> 10
prepay, refinance or modify the Zero Coupon Debentures if the amounts due
on the Zero Coupon Debentures or on any such replacement debt (including
any accretion to the date of such prepayment, refinancing or modification
and any future scheduled accretions under the Zero Coupon Debentures) would
be increased or amortized or their maturity would be accelerated to an
earlier date as a result thereof.
6.08. Usury. The Company covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this
Debenture Purchase Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to any Holder, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 8
REDEMPTION
8.01. Redemption.
(a) Voluntary Redemption. 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(c) to each Holder which notice shall specify the date on which the
Company will effect such redemption (a "Redemption Date"). Debentures
redeemed from December 30, 2000 through December 31, 2001, inclusive, shall
be redeemed at 105% of the principal amount of Debentures redeemed;
debentures redeemed from January 1, 2002 through December 31, 2002,
inclusive, shall be redeemed at 103% of the principal amount of Debentures
redeemed; debentures redeemed from January 1, 2003 through December 31,
2003, inclusive, shall be redeemed at 101.5% of the principal amount of
Debentures redeemed; and Debentures redeemed thereafter shall be redeemed
at 100% of the principal amount of Debentures redeemed, in each case with
interest accrued to the date of redemption.
(b) Partial Redemption. (i) If less than all of the then
outstanding Debentures are to be redeemed on any date on which the Company
will effect a redemption of the outstanding Debentures (a "Redemption
Date"), the Company shall (x) include in the notice provided to the Holders
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pursuant to Section 8.01(c) 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(c) (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.
(c) Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date, to each Holder, at his
address appearing in the Security Register (as defined below).
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price,
(iii) that on the Redemption Date the Redemption Price
will become due and payable upon each Debenture and that interest
thereon will cease to accrue on and after said date, and
(iv) that the place or places where each Debenture is to
be surrendered for payment of Redemption Price.
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.
(d) 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
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with the notice specified in Section 8.01(c), 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.
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Exhibit 20
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the
Securities Exchange Act of 1934, as amended, 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: November 9, 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/ Daniel M. Neidich
Name: Daniel M. Neidich
Title:
WH ADVISORS L.P. V
By: WH Advisors, Inc. V, General
Partner
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title:
WH ADVISORS, INC. V
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title:
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<PAGE> 2
THE GOLDMAN SACHS GROUP, L.P.
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
General Partner
/s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
RCPI HOLDINGS INC.
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title:
RCPI MERGER INC.
By: /s/ Daniel M. Neidich
Name: Daniel M. Neidich
Title:
