<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
August 22, 1995 (August 16, 1995)
ROCKEFELLER CENTER PROPERTIES, INC.
-----------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-8971 13-3280472
- -------------- ------------------ --------------------
(State or other (Commission File (IRS Employer
jurisdiction of) Number) Identification No.)
1270 Avenue of the Americas, New York, New York 10020
-----------------------------------------------------
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (212) 698-1440
<PAGE>
2
Item 1. CHANGES IN CONTROL OF REGISTRANT.
On August 16, 1995 Rockefeller Center Properties, Inc. ("RCPI") signed
a letter of intent (the "Letter of Intent") with Equity Office Holdings, L.L.C.
("EOH"), a national office building investment and management company led by
Samuel Zell. The Letter of Intent contemplates, among other things, that,
assuming definitive agreements are concluded prior to September 6, 1995 (the
"Outside Date"), which date may be extended by mutual agreement, and that all
conditions precedent to be contained in such definitive agreements, which shall
include approval of the transactions by the stockholders of RCPI, are satisfied
the following transactions would occur at a closing to be held in December 1995
or, in any event, by March 31, 1996.
1. EOH and other investors (collectively, the "Zell Group") would
form a new partnership or other entity (the "Zell Group Entity") which
would invest $250 million in cash in a new company which would be a real
estate investment trust ("Nureit") owned in approximately equal proportions
by the Zell Group Entity and holders of equity interests in RCPI at the
time of the closing. A majority of Nureit's Directors would be independent
of the Zell Group.
2. RCPI would sell to a third party for cash a senior interest in
its $1.3 billion convertible loan to the two partnerships (collectively,
the "Borrower") which filed for protection under Chapter 11 of the Federal
Bankruptcy Code on May 11, 1995. This loan is secured by a mortgage (the
"Mortgage") on most of the land and buildings constituting Rockefeller
Center ("Rockefeller Center"). The amount of cash received by RCPI in this
sale would be sufficient, together with the cash received by RCPI from
Nureit (together with a 50% interest in Nureit) in consideration of a
separate sale of a junior interest in the Mortgage to Nureit, to retire a
portion, deemed mutually satisfactory by the Zell Group and RCPI, of RCPI's
debt. Any RCPI debt not so retired would be assumed by Nureit.
<PAGE>
3
After the closing RCPI, after making adequate provision for the
discharge of any liabilities not assumed by Nureit, would be dissolved and the
Nureit shares received by RCPI as part of the consideration for the sale of the
junior interest in the Mortgage to Nureit would be distributed to RCPI's then
shareholders. It is anticipated that Nureit would assume substantially all of
RCPI's undischarged liabilities at the Closing.
The Letter of Intent also contemplates that the definitive agreements
would provide that RCPI would, on or before September 12, 1995, file a pleading
with the bankruptcy court before which the Borrower's Chapter 11 cases are
pending (i) opposing any extension of the Borrower's exclusive period to file a
plan of reorganization or, if the Borrower has filed a plan of reorganization by
such date, requesting that Borrower's exclusive solicitation period be
immediately terminated; (ii) seeking authorization for RCPI to file its own plan
of reorganization for the Borrower immediately; and (iii) setting a hearing on
approval of a disclosure statement concerning RCPI's plan for the Borrower and
authorizing RCPI to commence solicitation of approval of its plan as soon as
possible but in any event in time to allow RCPI's plan for the Borrower to
become effective during December 1995. RCPI's plan would provide that Nureit or
a Nureit nominee would acquire Rockefeller Center and arrange for the settlement
of the Borrower's obligations other than insider debt and obligations covered by
insurance.
The Letter of Intent also contemplates that the definitive agreements
would provide that if the steps outlined in the preceding paragraph were not
approved within a period satisfactory to the Zell Group and RCPI, RCPI and the
Zell Group would seek to acquire effective control of Rockefeller Center through
other routes which might include a "preplanned" Chapter 11 filing by RCPI.
Consummation of the transactions contemplated by the Letter of Intent
would be subject to a number of conditions, including the negotiation of
definitive agreements, bankruptcy court approval, approval by RCPI's
stockholders and receipt of any other
<PAGE>
4
required consents. There can be no assurance that these conditions would be
satisfied and, therefore, that these transactions would be consummated.
As contemplated by the Letter of Intent, on August 18, 1995 RCPI and
Zell/Merrill Lynch Real Estate Opportunity Partners Limited Partnership III
("Z/ML III") entered into an Investment Agreement (the "Investment Agreement")
which provides that Z/ML III will extend a $10 million working capital loan to
RCPI on August 29, 1995. This loan will bear interest at 10%, compounded
monthly, and will mature on the earlier of (i) May 29, 1996 or (ii) the date, if
any, RCPI announces its intention to enter into an agreement with respect to an
Alternative Transaction (as defined below). The Investment Agreement also
grants RCPI the right to require Z/ML III to purchase 1,788,908 shares of common
stock from RCPI on October 2, 1995 for a total consideration of $10,000,000 and
2,325,581 shares of common stock from RCPI on December 5, 1995 for a total
consideration of $13,000,000. Z/ML III would own approximately 4.5% of RCPI's
outstanding common stock if RCPI exercises its rights to require Z/ML III to
purchase shares on the first of these dates and approximately 9.71% of RCPI's
outstanding stock if RCPI exercises these rights on both of these dates. If
RCPI exercises its right to require Z/ML III to purchase these shares RCPI will
be required to repurchase them, or cause a third party to repurchase them, from
Z/ML III at the price paid by Z/ML III if RCPI announces an intention to pursue
an Alternative Transaction.
The Investment Agreement also provides that if RCPI exercises its
right to require Z/ML III to purchase shares on October 2, 1995 and Z/ML III
purchases such shares Z/ML III would be entitled to designate a Director to
serve on RCPI's Board and that if RCPI exercises its right to request Z/ML III
to purchase shares on December 5, 1995 and Z/ML III purchases such shares Z/ML
III would be entitled to designate a second Director to serve on RCPI's Board,
provided that the exercise of such right shall not cause less than a majority of
the Company's Board to consist of Directors elected by the shareholders of the
Company. The Company's Restated Certificate of Incorporation, as amended,
provides for a Board of five Directors. One of these directorships is currently
vacant as a result of the
<PAGE>
5
resignation from the Board on August 8, 1995 of Daniel
M. Neidich, who was designated by Goldman Sachs & Co. ("Goldman Sachs") to serve
as a Director of the Company pursuant to a letter agreement between the Company
and Whitehall Street Real Estate Limited Partnership V and Goldman Sachs dated
December 18, 1994 the text of which was filed as Exhibit 4.8 to RCPI's Current
Report on Form 8-K dated December 22, 1994. In his letter of resignation
Mr. Neidich stated that his resignation did not waive any of Goldman Sach's
rights with respect to the Company including its right to designate one member
of the Company's Board. The four current Directors of the Company, all of whom
have been elected by the Company's shareholders, do not currently intend to fill
this vacancy until Goldman Sach's intentions with respect to its right to
designate a Director are clarified.
If RCPI exercises its rights to require Z/ML III to purchase these
shares it will be required to issue to holders of its Warrants and SARs
additional Warrants and SARs exercisable at the same price in amounts sufficient
to prevent any dilution of such Warrant and SAR holders' positions in RCPI.
RCPI paid a fee of $2 million to EOH upon execution of the Letter of
Intent and will pay a fee of $1,925,000 to Z/ML III upon disbursement of the
$10 million loan to be made to RCPI under the Investment Agreement. RCPI paid
Z/ML III a fee of $425,000 upon execution of the Letter of Intent.
The Letter of Intent provides that if the definitive agreements
contemplated thereby have not been entered into by the Outside Date, RCPI will
pay to EOH or its designee a fee of $1.5 million if RCPI closes a sale of stock
or assets, financing, refinancing, recapitalization, merger, consolidation or
other business combination or similar transaction (or series of transactions)
involving the Borrower, the Mortgage and/or Rockefeller Center and involving or
having a value of at least $100 million or confirms a Chapter 11 plan of
reorganization for itself or the Borrower with another party, including the
Borrower, (an "Alternative Transaction") prior to August 14, 1998. If such a
payment becomes due the
<PAGE>
6
amount payable would bear interest at 8% per annum (compounded semi-annually)
from December 31, 1995.
The Letter of Intent also provides that if definitive agreements are
entered into such agreements will permit RCPI to terminate such agreements if
RCPI receives an unsolicited proposal for an Alternative Transaction which
RCPI's Board determines could be financially superior and that it has a
fiduciary duty to respond to and pursue. If RCPI closes an Alternative
Transaction within 30 months after any exercise of this "fiduciary out" right to
terminate such definitive agreements RCPI will pay to the Zell Group Entity a
fee of $11.5 million (reduced by $1.925 million if the funding fee under the
Investment Agreement has been paid) plus up to $2 million of expense
reimbursements. If such fee is payable it will bear interest at the rate of 8%
per annum (compounded semi-annually) from the 90th day after the date of
termination by RCPI of the definitive agreements.
The text of the Investment Agreement is filed herewith as
Exhibit 10.26 and the foregoing description of the terms of the Investment
Agreement is qualified in its entirety by reference thereto.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
The following is being filed as an exhibit to this Report:
(10.26) Text of Investment Agreement dated August 18, 1995
between RCPI and Zell/Merrill Lynch Real Estate
Opportunity Partners Limited Partnership III.
<PAGE>
7
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed by the undersigned
thereunto duly authorized.
ROCKEFELLER CENTER PROPERTIES, INC.
(Registrant)
By: /s/ Richard M. Scarlata
-----------------------------------------------
Name: Richard M. Scarlata
Title: President and Chief Executive Officer
(Principal Financial Officer
and Principal Accounting Officer)
Dated: August 22, 1995
<PAGE>
EXHIBIT 10.26
INVESTMENT AGREEMENT
between
ROCKEFELLER CENTER PROPERTIES, INC.,
and
ZELL/MERRILL LYNCH REAL ESTATE OPPORTUNITY PARTNERS
LIMITED PARTNERSHIP III
dated as of
August 18, 1995
<PAGE>
TABLE OF CONTENTS
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . 1
1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . 8
1.03. Accounting Terms. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2
THE LOAN . . . . . . . . . . . . . . . . 8
2.01. The Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.02. Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.03. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.04. The Note. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.05. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.06. Payments and Computations . . . . . . . . . . . . . . . . . . 9
2.07. Taxes; Regulatory Change. . . . . . . . . . . . . . . . . . . 9
SECTION 3
CONDITIONS PRECEDENT TO LOAN CLOSING . . . . . . . . . 11
3.01. Disbursement of Loan. . . . . . . . . . . . . . . . . . . . . 11
SECTION 4
REPRESENTATIONS AND WARRANTIES OF BORROWER. . . . . . . . 12
4.01. Existence, Power and Ownership. . . . . . . . . . . . . . . . 13
4.02. Authorization . . . . . . . . . . . . . . . . . . . . . . . . 13
4.03. No Violations or Conflicts. . . . . . . . . . . . . . . . . . 13
4.04. Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.05. Enforceable Obligations . . . . . . . . . . . . . . . . . . . 13
4.06. Financial Condition; Securities and Exchange Commission
Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.07. No Default. . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.08. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.09. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 14
4.10. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.11. Material Agreements . . . . . . . . . . . . . . . . . . . . . 14
4.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.13. Compliance with Law . . . . . . . . . . . . . . . . . . . . . 15
4.14. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.15. Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 15
4.16. Use of Proceeds; Margin Stock . . . . . . . . . . . . . . . . 15
4.17. Government Regulation . . . . . . . . . . . . . . . . . . . . 15
4.18. Pari Passu Obligations. . . . . . . . . . . . . . . . . . . . 15
i
<PAGE>
4.19. Ownership of Real Estate. . . . . . . . . . . . . . . . . . . 16
4.20. No Pending Condemnation or Eminent Domain . . . . . . . . . . 16
4.21. Capitalization. . . . . . . . . . . . . . . . . . . . . . . . 16
4.22. Subordination of Certain Leases . . . . . . . . . . . . . . . 16
SECTION 5
AFFIRMATIVE COVENANTS OF THE BORROWER. . . . . . . . . 17
5.01. Information Covenants . . . . . . . . . . . . . . . . . . . . 17
5.02. Preservation of Existence and Franchises. . . . . . . . . . . 19
5.03. Books, Records and Inspections. . . . . . . . . . . . . . . . 19
5.04. Compliance with Law . . . . . . . . . . . . . . . . . . . . . 19
5.05. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.06. Maintenance of Property . . . . . . . . . . . . . . . . . . . 19
5.07. Plan Assets . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.08. Directors; Bankruptcy Proceedings . . . . . . . . . . . . . . 20
5.09. RCP/RCPA Bankruptcy Proceedings . . . . . . . . . . . . . . . 21
SECTION 6
NEGATIVE COVENANTS. . . . . . . . . . . . . . 21
6.01. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 21
6.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.03. Consolidation, Merger, Sale or Purchase of Assets . . . . . . 22
6.04. Advances, Investments and Loans . . . . . . . . . . . . . . . 22
6.05. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.06. Modifications to Mortgage . . . . . . . . . . . . . . . . . . 22
6.07. Mortgage Conversion . . . . . . . . . . . . . . . . . . . . . 22
6.08. Modification or Prepayment of Indebtedness. . . . . . . . . . 22
SECTION 7
EVENTS OF DEFAULT. . . . . . . . . . . . . . 23
7.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 23
7.02 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8
PUT OPTIONS . . . . . . . . . . . . . . . 25
8.01. Borrower Put Option . . . . . . . . . . . . . . . . . . . . . 25
8.02. Lender Put Option; Registration Rights. . . . . . . . . . . . 27
8.03 Private Placement . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 9
MISCELLANEOUS. . . . . . . . . . . . . . . 28
9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.02. Benefit of Agreement; Assignments and Participations. . . . . 29
ii
<PAGE>
9.03. No Waiver; Remedies Cumulative. . . . . . . . . . . . . . . . 30
9.04. Payment of Expenses; Indemnification. . . . . . . . . . . . . 31
9.05. Amendments, Waivers and Consents. . . . . . . . . . . . . . . 32
9.06. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 32
9.07. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.08. Survival of Indemnities . . . . . . . . . . . . . . . . . . . 32
9.09. Governing Law; Submission to Jurisdiction; Venue. . . . . . . 32
9.10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 33
9.11. Entirety. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9.12. Subsequent Transaction between Lender and Borrower. . . . . . 33
9.13. Survival of Representations and Warranties. . . . . . . . . . 33
9.14. Financial Accommodation, Etc. . . . . . . . . . . . . . . . . 33
iii
<PAGE>
SCHEDULES
Schedule 4.09 - Indebtedness
Schedule 4.10 - Litigation
Schedule 4.11 - Material Agreements
Schedule 4.16 - Use of Proceeds
EXHIBITS
Exhibit A - Form of Promissory Note
Exhibit B - Form of Officer's Certificate
iv
<PAGE>
INVESTMENT AGREEMENT
INVESTMENT AGREEMENT (this "Agreement"), dated as of August 18, 1995 by and
between Rockefeller Center Properties, Inc., a Delaware corporation (the
"Borrower") and Zell/Merrill Lynch Real Estate Opportunity Partners Limited
Partnership III, an Illinois limited partnership (the "Lender").
RECITALS
WHEREAS, the Borrower has requested that the Lender (i) provide an
unsecured working capital loan in the aggregate principal amount of $10,000,000,
(ii) commit to an initial purchase of Common Stock of the Borrower in an
aggregate amount equal to $10,000,000, and (iii) commit to a subsequent purchase
of Common Stock of the Borrower in an aggregate amount equal to $10,000,000, the
proceeds of which are to be used by the Borrower for working capital purposes as
hereinafter provided; and
WHEREAS, the Lender has agreed to make the requested loan to and
investments in the Borrower on the terms and conditions hereinafter set forth.
THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.01. DEFINITIONS. As used herein, the following terms shall have the
meanings specified herein unless the context otherwise requires. Defined terms
herein shall include in the singular number the plural and in the plural the
singular:
"AFFILIATE" means, with respect to any Person, any other Person directly or
indirectly controlling (including, but not limited to, all partners, directors
and officers of such Person), controlled by or under direct or indirect common
control with such Person. A Person shall be deemed to control a corporation or
a partnership if such Person possesses, directly or indirectly, the power (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such corporation or to vote 10% or more of the partnership
interests of such partnership or (ii) to direct or cause direction of the
management and policies of such corporation or partnership, whether through the
ownership of voting securities, as managing or general partner, by contract or
otherwise.
"BORROWER" means Rockefeller Center Properties, Inc., a Delaware
corporation.
1
<PAGE>
"BORROWER PUT CLOSING DATES" has the meaning specified in Section 8.01
hereof.
"BORROWER PUT OPTION" has the meaning specified in Section 8.01 hereof.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a legal
holiday in New York, New York or a day on which banking institutions in New
York, New York are authorized by law or other governmental action to close.
"CASH EQUIVALENTS" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits and certificates of deposit of a bank (an "Approved Bank") that is
either (x) any domestic commercial bank of recognized standing having capital
and surplus in excess of $500,000,000 or (y) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof, in each case with
maturities of not more than six months from the date of acquisition, (iii)
commercial paper and variable or fixed rate notes issued by any Approved Bank
(or by the parent company thereof) or any variable rate notes issued or
guaranteed by any Approved Bank rated at least A-1 (or the equivalent thereof)
by S&P or at least P-1 (or the equivalent thereof) by Moody's and maturing
within six months of the date of acquisition, (iv) repurchase agreements with a
bank or trust company or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States of America in which the Borrower shall have a perfected
first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations, and (v) publicly traded short-term notes, bonds and
other obligations having short-term unsecured debt ratings of at least A-1 (or
the equivalent thereof) by S&P or at least P-1 (or the equivalent thereof) by
Moody's.
"CLOSING DATE" means the date of the making of the Loan determined in
accordance with Section 2.01 hereof.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMON STOCK" means common shares, par value $.01 per share, of the
Borrower.
"CONSISTENT BASIS" or "CONSISTENT BASIS" means, with regard to the
application of accounting principles, accounting principles consistent in all
material respects with the accounting principles used and applied in preparation
of the financial statements previously delivered to the Lender and referred to
in Section 4.06.
"DEFAULT" means any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
2
<PAGE>
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated thereunder.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of ERISA)
which together with the Borrower would be deemed to be a member of the same
"controlled group" within the meaning of Section 414(b), (c), (m) or (o) of the
Code.
"EVENT OF DEFAULT" has the meaning specified in Section 7.01 hereof.
"FAIR MARKET VALUE OF THE COMMON STOCK" shall be $5.59 per share of Common
Stock, representing the average of the daily market prices of the Common Stock
for the 90 consecutive trading days immediately preceding August 16, 1995, the
date on which Borrower and Lender agreed pursuant to the LOI to enter into this
Agreement (this date being the date of determination thereof). The market price
for each such trading day shall be the closing price on the New York Stock
Exchange, regular way, on such day, or if no sale takes place on such day, the
average of the closing bid and asked prices on the New York Stock Exchange on
such day.
"14% DEBENTURES" means the Borrower's outstanding 14% Debentures.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" means generally accepted accounting principles in the
United States in effect as of the date of this Agreement.
"GOLDMAN LOAN AGREEMENT" means the Loan Agreement between Borrower, the
Lender parties thereto and Goldman Sachs Mortgage Company, as Agent, dated as of
December 18, 1994.
"GUARANTY OBLIGATIONS" means any obligations (other than endorsements in
the ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing any Indebtedness, leases, dividends or other
obligations of any other Person in any manner, whether direct or indirect, and
including, without limitation, any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or other obligation or any property constituting
security therefor, (ii) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance agreements,
comfort letters or similar agreements or arrangements), (iii) to lease or
purchase property, securities or services primarily for the purpose of assuring
the owner of such Indebtedness or obligation, or (iv) to otherwise assure or
hold harmless the owner of such Indebtedness or obligation against loss in
respect thereof.
"INDEBTEDNESS" means, with respect to any Person, without duplication, (i)
all indebtedness of such Person for borrowed money, (ii) the deferred purchase
price of assets which in accordance with Generally Accepted Accounting
Principles would be shown to be a liability (or on the liability side of a
balance sheet) of such Person, (iii) all Guaranty Obligations of such Person,
(iv) the
3
<PAGE>
maximum amount of all letters of credit issued or acceptance facilities
established for the account of such Person and, without duplication, all drafts
drawn thereunder (other than letters of credit (x) supporting other Indebtedness
of such Person, or (y) offset by a like amount of cash or government securities
held in escrow to secure such letter of credit and draws thereunder), (v) all
capitalized lease obligations of such Person, (vi) all indebtedness of another
Person secured by any lien on any property of such Person, whether or not such
indebtedness has been assumed, (vii) all obligations under take-or-pay or
similar arrangements or under interest rate swap, currency swap, or commodities
agreements of such Person, (viii) indebtedness created or arising under any
conditional sale or title retention agreement of such Person, (ix) obligations
of such Person with respect to withdrawal liability or insufficiency in excess
of $5,000,000 (calculated on an accumulated benefit obligation basis) under
ERISA or under any qualified plan or related trust and (x) all other obligations
which in accordance with Generally Accepted Accounting Principles would be shown
to be a liability (or on the liability side of a balance sheet) of such Person;
PROVIDED, HOWEVER, that Indebtedness shall not include trade payables and
accrued expenses arising or incurred in. the ordinary course of business.
"INDENTURE SECURITIES" means the securities of the Borrower issued pursuant
to the 1985 Indenture.
"INITIAL SHARES" means 1,788,908 shares of Common Stock subject to the
Borrower Put Option pursuant to Section 8.01 hereof, representing the whole
number equal to or immediately less than the amount equal to (i) $10,000,000
divided by (ii) the Fair Market Value of the Common Stock determined on August
16, 1995, the date on which Borrower and Lender agreed pursuant to the LOI to
enter into this Agreement.
"INTEREST PAYMENT DATE" means the Maturity Date.
"INVESTMENT COMMITMENT FEE" means a fee paid to Lender by Borrower on the
Closing Date in the amount of $1,925,000.
"LENDER" has the meaning given to such term in the first paragraph of this
Agreement.
"LENDER PUT CLOSING DATE" has the meaning specified in Section 8.02 hereof.
"LENDER PUT OPTION" has the meaning specified in Section 8.02 hereof.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice perfecting a security interest under
the Uniform Commercial Code as adopted and in effect in the relevant
jurisdiction, or other similar recording or notice statute, and any lease in the
nature thereof).
4
<PAGE>
"LOAN" shall have the meaning given to such term in Section 2.01 hereof.
"LOAN DOCUMENTS" means this Agreement, the Note, and the LOI (to the extent
that the LOI creates binding obligations).
"LOI" shall mean the letter agreement by and between Rockefeller Center
Properties, Inc. and Equity Office Holdings, L.L.C., dated August 16, 1995.
"MATURITY DATE" shall have the meaning given to such term in Section
2.02(a) hereof.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means, collectively, the Mortgage and Security Agreement, dated
as of September 19, 1985, by RCPA and RCP to the Borrower, the Consolidation,
Extension, Modification and Spreader Agreement, dated as of September 19, 1985,
among RCPA, RCP and the Borrower, recorded with and certified by the City
Register of the City of New York, and the Assignment of Rents, dated as of
September 19, 1985, by RCPA and RCP to the Borrower, recorded with and certified
by the City Register of the City of New York, each as amended from time to time.
"MORTGAGE NOTE" means, collectively, the Mortgage Note, dated as of
September 19, 1985, in the amount of $1,255,160,004, in favor of the Borrower
and the Consolidated Mortgage Note, dated as of September 19, 1985, in the
amount of $44,839,996, each as amended from time to time.
"1985 INDENTURE" means the Indenture, dated as of September 15, 1985 from
the Borrower to United States Trust Company (as successor to Manufacturers
Hanover Trust Company), as Trustee, as amended by the First Supplemental
Indenture dated as of December 15, 1985, as further amended from time to time.
"1985 LOAN AGREEMENT" means the Loan Agreement dated as of September 19,
1985 among the Borrower, RCPA and RCP, as amended from time to time.
"NOTE" means the promissory note of the Borrower in favor of the Lender
evidencing the Loan and provided in accordance with Section 2.04 hereof, as such
promissory note may be amended, modified, supplemented or replaced from time to
time.
"PERMITTED INVESTMENTS" means cash and Cash Equivalents.
"PERMITTED LIENS" means (i) Liens created in connection with the Goldman
Loan Agreement or the "Loan Documents" as defined therein; (ii) Liens for taxes
not yet due or Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves have been established (and as to which
the property subject to such Lien is not yet subject to foreclosure, sale or
loss on account thereof); (iii) Liens in respect of property imposed by law
arising in the ordinary
5
<PAGE>
conduct of business such as materialmen's, mechanics', warehousemen's and other
like Liens; provided that such Liens secure only amounts not yet due and payable
or amounts being contested in good faith by appropriate proceedings for which
adequate reserves have been established (and as to which the property subject to
such lien is not yet subject to foreclosure, sale or loss on account thereof);
(iv) pledges or deposits made to secure payment under worker's compensation
insurance, unemployment insurance, pensions, social security programs, public
liability laws or similar legislation; (v) Liens arising from good faith
deposits in connection with or to secure performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, contracts, performance and
return-of-money bonds and other similar obligations incurred in the ordinary
course of business (other than obligations in respect of the payment of borrowed
money); (vi) easements, rights-of-way, restrictions (including zoning
restrictions), defects or irregularities in title and other similar charges or
encumbrances not, in any material respect, interfering with the ordinary course
of business of the Borrower; (vii) leases or subleases granted to others,
whether existing now or hereafter entered into, in the ordinary conduct of
business, not in any material respect, interfering with the ordinary conduct of
business of the Borrower; (viii) any attachment or judgment lien, unless the
judgment it secures shall not, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have been
discharged within 30 days after the expiration of any such stay; and (ix) Liens
imposed upon the Real Estate in connection with the resolution of the bankruptcy
of RCP and RCPA.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise (whether or not
incorporated), or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means any multi-employer or tax-qualified single-employer plan as
defined in Section 4001 of ERISA.
"PLAN ASSETS" means such term within the meaning and as defined in the
Department of Labor Regulation 29 CFR 2510.3-101, as amended, and the advisory
opinions or other administrative interpretations thereunder.
"PURCHASE NOTICE" shall have the meaning specified in Section 8.01 hereof.
"RCP" means Rockefeller Center Properties, a New York general partnership.
"RCPA" means RCP Associates, a New York limited partnership.
"REAL ESTATE" means the real property identified in Exhibit A to the
Mortgage and Security Agreement, dated as of September 19, 1985, by RCPA and RCP
to the Borrower, but excluding any Development Rights (as defined therein)
available to the land identified in Exhibit A and Exhibit C thereto and the area
identified in Exhibit B thereto.
6
<PAGE>
"RECAPITALIZATION TRANSACTION" means (i) a sale of stock or assets,
financing, refinancing, recapitalization, restructuring, liquidation,
dissolution, reorganization, merger, consolidation or other business combination
or similar transaction (or series of transactions) involving the Borrower, the
Mortgage Note, the Mortgage, and/or the Real Estate and involving or having a
value of at least $100 million, or (ii) a plan of reorganization pursuant to
Chapter 11 of the Bankruptcy Code (as hereinafter defined) for the Borrower. It
is understood and agreed that, without limiting the generality of the foregoing,
a reinstatement or restructuring of the Mortgage Note and the Mortgage would
constitute a Recapitalization Transaction.
"REGULATION G, T, U OR X" means, respectively, Regulation G, T, U and X of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"RGI PLANS" shall have the meaning given to such term in Section 4.14
hereof.
"S&P" means Standard & Poor's Corporation.
"SHARES" shall mean, collectively, the Initial Shares and the Subsequent
Shares.
"STOCK APPRECIATION RIGHTS" means the stock appreciation rights issued
pursuant to the Stock Appreciation Rights Agreement.
"STOCK APPRECIATION RIGHTS AGREEMENT" means the Stock Appreciation Rights
Agreement dated December 18, 1994 between the Borrower and Chemical Bank,
entered into in connection with the Goldman Loan Agreement.
"SUBSEQUENT SHARES" means 2,325,581 shares of Common Stock subject to the
Borrower Put Option pursuant to Section 8.01 hereof, representing the whole
number equal to or immediately less than the amount equal to (i) $13,000,000
divided by (ii) the Fair Market Value of the Common Stock determined on August
16, 1995, the date on which Borrower and Lender agreed pursuant to the LOI to
enter into this Agreement.
"SUBSIDIARY" of any Person means, with respect to such Person, (i) any
corporation more than 25% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time, any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries, and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries has more than 25% equity interest at any time.
"TITLE INSURANCE" means (i) the title insurance policy set forth in
Schedule III to the Collateral Trust Agreement by and among Rockefeller Center
Properties, Inc. and Bankers Trust Company and Gary R. Vaughan, Trustees, dated
as of December 29, 1994 and (ii) the title insurance
7
<PAGE>
policy described in the Letter Agreement dated as of December 29, 1994 regarding
the assignment by the Borrower 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 the Borrower and Chemical Bank, entered into in connection with the
Goldman Loan Agreement.
"WARRANTS" means the warrants for the purchase of shares of Common Stock
issued pursuant to the Warrant Agreement.
1.02. COMPUTATION OF TIME PERIODS. For purposes of computation of
periods of time hereunder, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding."
1.03. ACCOUNTING TERMS. Accounting terms used but not otherwise
defined herein shall have the meanings provided, and be construed in accordance
with, Generally Accepted Accounting Principles at the time in effect.
SECTION 2
THE LOAN
2.01. THE LOAN. Subject to the terms and conditions set forth herein,
the Lender agrees to make a term loan (the "Loan") to the Borrower on the
Closing Date in the principal amount of $10,000,000. Upon the satisfaction of
the conditions set forth in Section 3.01 hereof, the Lender will make available
to the Borrower no later than 3:00 p.m., New York time, on the Closing Date, the
amount of the Loan in immediately available funds by making a wire transfer in
the aggregate principal amount of the Loan to an account designated by the
Borrower. Subject to the provisions of Section 3.01, the Closing Date shall
occur on August 29, 1995 unless Lender and Borrower otherwise agree.
2.02. MATURITY.
(a) MATURITY DATE. The Loan and any interest accrued thereunder shall be
due and payable on the date (the "Maturity Date") that is the earlier of (i) May
29, 1996, or (ii) the date on which Borrower, its Affiliates or its
representatives disclose publicly (or are obligated to disclose publicly) the
existence of an agreement (whether or not in writing) in which Borrower is
obligated or intends to pursue negotiations or discussions with any Person other
than Lender relating to a Recapitalization Transaction.
(b) PAYMENT. The Borrower agrees to pay the outstanding principal amount
of the Loan, together with all accrued but unpaid interest thereon and all other
amounts owing from the Borrower to the Lender, on the Maturity Date.
8
<PAGE>
2.03. INTEREST. The outstanding principal balance of the Loan from
time to time shall bear interest at a rate per annum equal to 10% per annum from
the Closing Date through and including the Maturity Date. Notwithstanding the
foregoing, upon the occurrence and during the continuance of an Event of
Default, the principal of and, to the extent permitted by law, interest on the
Loan shall bear interest, payable on demand, at a rate equal to 4% per annum in
excess of the rate otherwise applicable hereunder. Except as otherwise provided
herein, accrued interest shall be payable in arrears on the Maturity Date.
2.04. THE NOTE. The Loan shall be evidenced by a duly executed
promissory note of the Borrower in the principal amount of $10,000,000,
substantially in the form of Exhibit A attached hereto.
2.05. PREPAYMENTS. The Borrower shall have the right to prepay the
Loan at any time in whole but not in part upon not less than 15 days advance
written notice to the Lender; PROVIDED, HOWEVER, such prepayments may be made
only if the Borrower waives any currently existing or future rights to the
Borrower Put Option pursuant to Section 8.01 hereof. Prepayments shall be made
at 100% of the principal amount prepaid plus interest accrued to the date of
prepayment. Prepayments of the Loan shall be applied first to accrued but
unpaid interest and then to the principal balance of the Loan. Amounts prepaid
hereunder may not be reborrowed.
2.06. PAYMENTS AND COMPUTATIONS. All payments hereunder shall be made
to the Lender in U.S. dollars in immediately available funds to an account of
the Lender, as notified to the Borrower, not later than 2:00 p.m. New York City
time on the date when due. Payments received after such time shall be deemed to
have been received on the next succeeding Business Day. Whenever any payment
hereunder shall be stated to be due on a day which is not a Business Day the due
date thereof shall be extended to the next succeeding Business Day (subject to
accrual of interest for the period of such extension). All computations of
interest and fees shall be made on the basis of twelve 30-day months over a year
of 360 days. Interest shall compound as of the first day of each calendar
month. Interest shall accrue from and include the date of the Loan, but exclude
the date on which the Loan is repaid. All payments received from the Borrower
hereunder shall be applied in the following order: FIRST, to the payment of any
costs and expenses and other amounts due pursuant to Section 9.04; SECOND, to
the payment of any amount due under this Agreement other than any amount
referred to in this sentence; THIRD, to the ratable payment of interest due on
the Note; FOURTH, to the ratable payment of principal due on the Note.
2.07. TAXES; REGULATORY CHANGE. (a) TAXES. (i) To the extent
permitted by law, all payments under this Agreement and under the Note
(including payments of principal and interest) shall be payable to the Lender
free and clear of any and all present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar charges (collectively,
the "Taxes"); PROVIDED, that "Taxes" shall not include taxes imposed on or
measured by the overall net income of the Lender by the United States of America
or any political subdivision or taxing authority thereof or therein, or taxes on
or measured by the net income of any foreign office, branch or subsidiary of the
Lender by any foreign country or subdivision thereof in which such office,
branch or
9
<PAGE>
subsidiary is doing business or is organized or considered to be resident. If
any Taxes are required to be withheld or deducted from any amount payable under
this Agreement or the Note, then the amount payable under this Agreement or the
Note shall be increased to the amount which, after deduction from such increased
amount of all Taxes required to be withheld or deducted therefrom, will yield to
the Lender the amount stated to be payable under this Agreement or the Note.
The Borrower shall execute and deliver to the Lender upon its request such
further instruments as may be necessary or desirable to give full force and
effect to any such increase. The Borrower shall also hold the Lender harmless
and indemnify it for any stamp or other similar taxes with respect to the
preparation, execution, delivery, recording or enforcement of the Loan Documents
(all of which shall be included within "Taxes"). If any of the Taxes specified
in this Section 2.07(a) are paid by the Lender, the Borrower shall, upon demand
of the Lender, promptly reimburse the Lender for such payments, together with
any interest, penalties and expenses incurred in connection therewith. The
Borrower shall deliver to the Lender certificates or other valid vouchers for
all Taxes or other changes deducted from or paid with respect to payments made
by the Borrower hereunder.
(ii) If the Lender receives an official notice of refund in respect of
any Taxes as to which it has been indemnified by the Borrower pursuant to this
Section 2.07, it shall promptly notify the Borrower of the availability of such
refund and apply for such refund at the Borrower's expense. If the Lender
receives a refund in respect of any Taxes as to which it has been indemnified by
the Borrower, it shall promptly pay such refund (including interest and
penalties, if any) to the Borrower, net of reasonable out-of-pocket expenses of
the Lender.
(b) REGULATORY CHANGE. If, as a result of any change in law or regulation
or in the interpretation thereof by any court or governmental or administrative
authority or the enactment of any law or regulation, any reserve, special
deposit, capital adequacy or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of the
Lender is imposed, modified or deemed applicable; or (ii) any other condition
affecting a Loan subject to Indebtedness bearing a fixed rate (other than in
respect of taxes covered by Section 2.07(a) or expressly excluded from the
definition of Taxes as specified in Section 2.07(a)) is imposed on the Lender
and the Lender reasonably determines that, by reason thereof, the cost to the
Lender of making or maintaining the Loan is increased, or any amount receivable
by the Lender hereunder in respect of any portion of the Loan is reduced, in
each case by an amount deemed by the Lender to be material (such increases in
cost and reductions in amounts receivable being herein called "Increased
Costs"), then the Borrower agrees that it will pay to the Lender upon its
request such additional amount or amounts as will compensate the Lender for such
Increased Costs to the extent the Lender reasonably determines that such
Increased Costs are allocable to the Loan. The Lender will notify the Borrower
of any event occurring after the date hereof which will entitle the Lender to
compensation pursuant to this Section 2.07 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
Notwithstanding the foregoing, in no event shall the Borrower be required to
compensate the Lender for any portion of its income or franchise taxes, whether
or not attributable to payments made by the Lender. If the Lender requests
compensation under this Section 2.07, the Borrower may, by notice to the Lender,
require that the
10
<PAGE>
Lender furnish to the Borrower a statement setting forth the basis for
requesting such compensation and the method for determining the amount thereof.
2.08. MITIGATION. The Lender shall use reasonable efforts to avoid or
mitigate any indemnifiable Taxes, increased cost or reduced receivable under
Section 2.07 to the greatest extent practicable (including transferring the Loan
to an affiliate) unless, in the opinion of the Lender, such efforts would be
likely to have any adverse effect upon it.
SECTION 3
CONDITIONS PRECEDENT TO LOAN CLOSING
3.01. DISBURSEMENT OF LOAN. The obligation of the Lender to disburse
the principal amount of the Loan is subject to the satisfaction, or waiver by,
the Lender, on or prior to the Closing Date of the following conditions (in form
and substance acceptable to the Lender):
(a) EXECUTED LOAN DOCUMENTS. Each of the Loan Documents shall have been
duly executed and delivered by the parties thereto and the Lender shall have
received executed copies of each of the Loan Documents.
(b) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. Receipt by the Lender of
a certificate signed by the President of the Borrower to the effect that both at
the time of the making of the Loan and after giving effect thereto (i) there
shall exist no Default or Event of Default, and (ii) all representations and
warranties of the Borrower contained herein and in the other Loan Documents then
in effect shall be true and correct in all material respects.
(c) OPINION OF COUNSEL. Receipt by the Lender of a legal opinion, or
opinions, in form and substance reasonably satisfactory to the Lender and dated
as of the Closing Date, from Shearman & Sterling or such other legal counsel to
the Borrower as shall be reasonably satisfactory to the Lender as to legal
matters referred to in Section 4 and that the performance by the Borrower of the
covenant contained in Section 5.08 hereof shall (i) result in the due and proper
appointment of directors to the Borrower's Board of Directors without the
necessity of prior or subsequent approval or ratification of such appointment or
subsequent special election prior to the next annual election by the
shareholders of Common Stock, (ii) permit the directors so appointed to the
Borrower's Board of Directors to have the power and authority to vote on any
matter that thereafter comes before the Borrower's Board of Directors concerning
any (A) Recapitalization Transaction (whether or not involving Lender or any
Affiliate thereof), or (B) whether or not Borrower should file a petition in
bankruptcy.
(d) CORPORATE DOCUMENTS. Receipt by the Lender of all documents
reasonably requested by the Lender relating to the existence of the Borrower,
the validity of the Loan Documents and other matters relating thereto, in form
and substance satisfactory to the Lender, including, but not limited to:
11
<PAGE>
(i) CERTIFICATES OF AUTHORIZATION AND INCUMBENCY. Certificate of the
Secretary of the Borrower, dated as of the Closing Date, as to resolutions
approving and adopting the Loan Documents and authorizing the execution and
delivery thereof and as to the authority of the persons executing such
documents.
(ii) CERTIFICATES OF INCORPORATION AND BY-LAWS. Copies of the
Certificate of Incorporation and By-laws of the Borrower, together with all
amendments thereto certified as of the Closing Date.
(iii) CERTIFICATES OF GOOD STANDING OR EXISTENCE. Certificates of
good standing or existence for the Borrower issued as of a recent date by
its state of organization and each other state where the Borrower, by the
nature of its business, is required to qualify or register.
(e) AGREEMENT DEFAULTS. No Default or Event of Default under this
Agreement or any of the other Loan Documents, shall have occurred and be
continuing.
(f) MARKET CONDITIONS. There shall be no (i) suspension or material
limitation in trading in securities generally on the New York Stock Exchange
(the "NYSE"); (ii) suspension or material limitation in trading in the
Borrower's securities on the NYSE; (iii) general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iv) since August 14, 1995, outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war, if the effect of any such event specified in
this clause (iv) in the judgment of the Lender makes it impracticable or
inadvisable to proceed with the transactions contemplated hereunder on the terms
and in the manner contemplated herein.
(g) BUSINESS COMBINATION. The Borrower shall not have entered into any
arrangement or agreement in respect of a "business combination" as defined in
the Certificate of Incorporation of the Borrower with any Person other than
Lender, its Affiliates, designees or assigns (but disregarding any reference to
an "Acquiring Person" in such definition).
(h) INVESTMENT COMMITMENT FEE. Payment by Borrower of the Investment
Commitment Fee.
SECTION 4
REPRESENTATIONS AND WARRANTIES OF BORROWER
The Borrower hereby represents and warrants to the Lender that on the date
hereof and on each of the Closing Date and the Borrower Put Closing Dates
(before and after giving effect to the making of the Loan):
12
<PAGE>
4.01. EXISTENCE, POWER AND OWNERSHIP.
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is in good standing as a
foreign corporation in each other jurisdiction where ownership of its properties
or the conduct of its business requires it to be so, and it has all power and
authority under such laws and its certificate of incorporation and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
(b) It is subject to taxation as a real estate investment trust (a "REIT")
under Subchapter M of the Code and has satisfied all requirements to continue to
qualify as a REIT. It is not aware of any fact or circumstance that could
reasonably be expected to prevent it from continuing to so qualify in the
future.
4.02. AUTHORIZATION. It has the corporate power and authority to enter
into this Agreement and the other Loan Documents and to perform its obligations
under and consummate the transactions contemplated by such Loan Documents and
has by proper action duly authorized the execution and delivery of the Loan
Documents.
4.03. NO VIOLATIONS OR CONFLICTS. Neither the execution and delivery
of the Loan Documents, nor the consummation of the transactions contemplated
herein or therein, nor performance of and compliance with the terms and
provisions thereof will (i) violate or conflict with any provision of its
Certificate of Incorporation or By-laws, (ii) violate any law, regulation
(including without limitation Regulation G, T, U or X), order, writ, judgment,
injunction, decree or permit applicable to it, (iii) violate or materially
conflict with any contractual provisions of, or cause an event of default under,
any indenture, loan agreement, mortgage, deed of trust, contract or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, or (iv) result in or require the creation of any lien,
security interest or other charge or encumbrance (other than those contemplated
in or in connection with the Loan Documents) upon or with respect to its
properties.
4.04. CONSENTS. No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental authority
or other Person is required in connection with the execution, delivery or
performance of this Agreement or any of the other Loan Documents, other than the
condition to the Borrower Put Closing Date relating to the Subsequent Shares, as
set forth in Section 8.01(b)(ix).
4.05. ENFORCEABLE OBLIGATIONS. This Agreement and the other Loan
Documents have been duly executed and delivered by the Borrower and constitute
legal, valid and binding obligations of the Borrower, enforceable in accordance
with their respective terms.
4.06. FINANCIAL CONDITION; SECURITIES AND EXCHANGE COMMISSION FILINGS.
Since January 1, 1993, the Borrower has made all required filings with the
Securities and Exchange Commission, and
13
<PAGE>
such filings are complete and correct in all material respects and do not
contain any untrue statement of a material fact or omit any material fact
required to be stated therein necessary to make the statements therein not
misleading. The financial statements of the Borrower contained in such filings
are true and correct and fairly present the financial condition and results of
operations of the Borrower as of their dates and for the respective periods
covered thereby; such financial statements were prepared in accordance with
Generally Accepted Accounting Principles applied on a consistent basis (except
as noted therein); and since the date of such financial statements, except as
disclosed in such filings with the Securities and Exchange Commission made on or
prior to the date hereof, there have occurred no changes or circumstances which
have had or are likely to have a material adverse effect on the Borrower and the
financial statements referenced above.
4.07. NO DEFAULT. No Default or Event of Default presently exists.
4.08. LIENS. Except for Permitted Liens, it has good and marketable
title to all of its properties and assets free and clear of all Liens.
4.09. INDEBTEDNESS. It has no Indebtedness (including, without
limitation, any Guaranty Obligations) except for the Loan, the Goldman Loan
Agreement, the 14% Debentures and the other Indebtedness specified on Schedule
4.09 hereto.
4.10. LITIGATION. Except as specified in Schedule 4.10 hereto, there
are no actions, suits or legal, equitable, arbitration or administrative
proceedings (including those relating to environmental matters), pending or, to
the knowledge of the Borrower threatened, against the Borrower which, if
adversely determined, would have a material adverse effect on the financial
condition of the Borrower. The Borrower is not aware of any fact or condition
in respect of the Real Estate that could reasonably be expected to result in any
such action, suit, or proceeding or in the occurrence of any material liability
in respect of environmental matters.
4.11. MATERIAL AGREEMENTS. Except as specified on Schedule 4.11 hereto
and except agreements filed as exhibits to its filings with the Securities and
Exchange Commission prior to the date hereof, it is not a party to any material
contract, lease, loan agreement, indenture, mortgage, security agreement or
other material agreement or obligation other than (i) the Loan Documents, (ii)
the Goldman Loan Agreement and the "Loan Documents" as defined therein, (iii)
the documents evidencing the Indebtedness described in Section 4.09, and (iv)
the Mortgage, Mortgage Note, 1985 Loan Agreements and any agreement or
obligation relating to the mortgage loan evidenced by the foregoing. The
Goldman Loan Agreements and the "Loan Documents" as defined therein are in full
force and effect and have not been amended, modified, supplemented or revised
since their respective dates of initial execution. Since January 1, 1995,
Borrower has not entered into any agreement or arrangement with RCP or RCPA that
is still in effect that would prohibit or materially adversely affect the
ability of the Borrower to consummate the transaction contemplated by the non-
binding provisions of the LOI.
14
<PAGE>
4.12. TAXES. It has filed, or caused to be filed, all material reports
and returns with respect to taxes (federal, state, local and foreign) required
to be filed and such reports and returns were true, complete and accurate in all
material respects and it has paid all amounts of taxes shown thereon to be due
(including interest and penalties) and has paid all other material taxes, fees,
assessments and other governmental charges (including documentary stamp taxes
and intangible taxes) owing by it, except for such taxes (i) which are not yet
delinquent or (ii) as are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with Generally Accepted Accounting Principles. It is not aware of
any proposed material tax assessments against it. No extension of time for
assessment or payment by the Borrower of any federal, state or local tax is in
effect. All mortgage recording taxes in respect of the Mortgage have been paid.
4.13. COMPLIANCE WITH LAW. It is in compliance with all laws, rules,
regulations, orders and decrees applicable to it or to its properties.
4.14. ERISA. Except for the Retirement Income Plan for Salaried
Employees of Rockefeller Group, Inc. and The Rockefeller Group Incentive Savings
Plan, in each case as amended or supplemented in the ordinary course of business
from time to time (collectively, the "RGI Plans"), neither it nor its ERISA
Affiliates have established, maintained or been obligated to contribute to any
Plan at any time during the five calendar years preceding the Closing Date.
4.15. SUBSIDIARIES. It has no Subsidiaries other than Deucalion
Capital Corporation, a Delaware corporation.
4.16. USE OF PROCEEDS; MARGIN STOCK. It will use the proceeds of the
Loan and the Shares solely for working capital purposes consistent with
Schedule 4.16 hereto. None of such proceeds will be used for the purpose of
purchasing or carrying any "margin stock" as defined in Regulation G, T, U, or X
or for the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry "margin stock" or for any other purpose which
might constitute this transaction a "purpose credit" within the meaning of
Regulation G, T, U or X. As of the Closing Date or either of the Borrower Put
Closing Dates, as the case may be, the Borrower does not own any "margin stock".
4.17. GOVERNMENT REGULATION. It is not subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, or the
Interstate Commerce Act, each as amended. In addition, it is not (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by such a
company, or (ii) a "holding company," or a "Subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "Subsidiary" or a
"holding company," within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
4.18. PARI PASSU OBLIGATIONS. The obligations of the Borrower
hereunder and under the Note rank and will at all times rank PARI PASSU with all
other unsecured and unsubordinated
15
<PAGE>
obligations of the Borrower in respect of its unsubordinated indebtedness for
borrowed money, and there is no indebtedness for borrowed money of the Borrower
senior to the Note.
4.19. OWNERSHIP OF REAL ESTATE. The Borrower has good and marketable
title to the Mortgage Note, the Mortgage and the Title Insurance free and clear
of all liens, except (i) the Permitted Liens and (ii) the restrictions on
transfer contained in the 1985 Loan Agreement, and the Title Insurance. The
Borrower has not granted to any person other than Goldman Sachs Mortgage Company
or its Affiliates pursuant to the Goldman Loan Agreement or the "Loan Documents"
as defined therein, any rights, recorded or unrecorded, in the Mortgage or the
Mortgage Note. To the best of the Borrower's knowledge, no person, other than
the Borrower, has any right or option, recorded or unrecorded, to acquire the
Real Estate or any portion thereof or interest therein. The Mortgage remains a
valid lien on all the Real Estate and on the Lessor's interest in all Leases
(each as defined in the Mortgage), with a priority in all material respects no
less than its priority as of September 19, 1985 except as such priority may be
affected by the subordination referred to in Clause (ii) of Recital G to the
Amendment and Restatement of the Mortgage dated as of December 1, 1988. The
outstanding aggregate principal amount of the Mortgage Note is $1,300,000,000.
4.20. NO PENDING CONDEMNATION OR EMINENT DOMAIN. The Borrower has no
knowledge of any pending or threatened condemnation or eminent domain
proceedings which would affect the Real Estate.
4.21. CAPITALIZATION. As of the date hereof, the Borrower's authorized
capital stock consists of 150,000,000 shares of Common Stock of which 38,260,704
shares of Common Stock were issued and outstanding, no shares of Common Stock
were held in treasury, and there were no outstanding employee stock options.
The Common Stock constitutes all of the issued and outstanding capital stock of
the Borrower. There are no other classes of capital stock of the Borrower
authorized or outstanding. The outstanding Common Stock is duly authorized,
validly issued, fully paid and nonassessable. Except for the transactions
contemplated by the Loan Documents, the transactions contemplated by the "Loan
Documents" as such term is defined in the Goldman Loan Agreement and except in
respect of the Indenture Securities, there are no preemptive or other
outstanding rights, options, warrants, conversion rights or agreements or
commitments of any character relating to the Borrower's authorized and issued,
unissued or treasury shares of capital stock and the Borrower has not issued any
debt securities, other securities, rights or obligations that are currently
outstanding and are convertible into or exchangeable for, or given any Person a
right to subscribe for or acquire, capital stock of the Borrower.
4.22. SUBORDINATION OF CERTAIN LEASES. To the best knowledge of
Borrower, each of the lease between RCP and Radio City Music Hall Productions,
Inc., dated July 1, 1982, the lease between RCP and Rockefeller Management
Corporation, dated July 15, 1985, relating to the parking garage located at the
Real Estate, and the Franchise Agreement for the Provision of Telecommunication
Series between Rockefeller Center Management Corporation and Rockefeller Center
Telecommunications Corporation dated September 7, 1985, if and as each such
lease and
16
<PAGE>
agreement has been amended and supplemented, is subject and subordinate to the
Mortgage and the Mortgage Notes and none of the tenants under such leases have
any rights of nondisturbance under such leases.
SECTION 5
AFFIRMATIVE COVENANTS OF THE BORROWER
The Borrower hereby covenants and agrees that so long as this Agreement is
in effect and until the Loan, together with interest, fees and other obligations
hereunder, has been paid in full:
5.01. INFORMATION COVENANTS. The Borrower will furnish, or cause to be
furnished, to the Lender:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within 90 days after the close of each fiscal year of the Borrower, a balance
sheet of the Borrower as at the end of such fiscal year together with related
statements of income and retained earnings and of cash flows for such fiscal
year, all in reasonable detail and examined by independent certified public
accountants of recognized national standing whose opinion shall be to the effect
that such financial statements have been prepared in accordance with Generally
Accepted Accounting Principles applied on a consistent basis (except for changes
with which 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 Lender.
(b) AUDITOR'S CERTIFICATE. At the time of delivery of the financial
statements provided for in Section 5.01(a) hereof, a certificate from the
accountants examining such financial statements, that, to the best of their
knowledge, no Event of Default exists, or, if any Event of Default does exist,
providing a reasonably detailed summary of all relevant information known to
such accountants.
(c) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any event
within 45 days after the end of each fiscal quarter of each fiscal year of the
Borrower, except for the fourth fiscal quarter of each fiscal year, a balance
sheet of the Borrower as at the end of such quarterly period together with
related statements of income and retained earnings for such quarterly period and
for the portion of the fiscal year ending with such period, all in, reasonable
detail and in form and substance satisfactory to the Lender, and accompanied by
a certificate of the President of the Borrower as being true and correct and as
having been prepared in accordance with Generally Accepted Accounting Principles
applied on a consistent basis, subject to changes resulting from audit and
normal year-end audit adjustments. For so long as the Borrower is required to
file reports pursuant to the Securities Exchange Act of 1934, as amended, the
Borrower may satisfy its obligations under Section 5.01(a) and 5.01(c) hereof by
delivering to the Lender, within the time periods specified in such Sections,
copies of its reports on Form 10-K and Form 10-Q, respectively, with the
Securities and Exchange Commission.
17
<PAGE>
(d) OFFICER'S CERTIFICATE. At the time of delivery of the financial
statements provided for in Section 5.01(c) hereof, a certificate of the
President of the Borrower substantially in the form of Exhibit B to the effect
that no Default or Event of Default exists, or, if any Default or Event of
Default does exist, specifying the nature and extent thereof and what action the
Borrower proposes to take with respect thereto.
(e) AUDITOR'S REPORTS. Promptly upon receipt thereof, a copy of any other
report or management letter submitted by independent accountants to the Borrower
in connection with any annual, interim or special audit of the books of
Borrower.
(f) REAL ESTATE AND OTHER INFORMATION. Promptly upon receipt thereof,
copies of all financial information, reports and other documents received by the
Borrower pursuant to the 1985 Loan Agreement and the Mortgage, including without
limitation, all documents delivered to Borrower pursuant to Sections 6.05 and
6.08 of the 1985 Loan Agreement and Sections 704 and 1010 of the Mortgage,
subject to compliance with any applicable confidentiality agreements or similar
restrictions that are either binding upon Borrower as of the date hereof or
hereafter entered into by Borrower in good faith.
(g) OTHER INFORMATION. With reasonable promptness upon any such request,
such other information regarding the business, properties or financial condition
of the Borrower as the Lender may reasonably request, including without
limitation copies or summaries of, as the case may be, all non-routine
correspondence to or from and summaries of contacts and conversations with RCP,
RCPA or any of their affiliates, subject to compliance with any applicable
confidentiality restrictions agreed to by the Borrower in good faith.
(h) NOTICE OF DEFAULT OR LITIGATION. Upon the Borrower obtaining
knowledge thereof, it will give written notice to the Lender promptly, but in
any event within five Business Days, of the occurrence of any of the following
with respect to the Borrower: (i) the occurrence of an event or condition
consisting of a Default or an Event of Default, specifying the nature and
existence thereof and what action the Borrower proposes to take with respect
thereto, (ii) the pendency or commencement of any litigation, arbitral or
governmental proceeding against the Borrower in which damages are sought or
environmental remediation demanded which exceeds $1,000,000 in any instance or
$5,000,000 in the aggregate or which might otherwise materially adversely affect
the business, properties, assets, condition (financial or otherwise) or
prospects of the Borrower, (iii) any levy of an attachment, execution or other
process against its assets in excess of $1,000,000, (iv) the occurrence of an
event or condition which shall constitute a default or event of default under
any other agreement for borrowed money in excess of $1,000,000, (v) any
development in its business or affairs which has resulted in, or which the
Borrower reasonably believes may result in, a material adverse effect on the
business, properties, assets, condition (financial or otherwise) or prospects of
the Borrower, (vi) the institution of any proceedings against, or the receipt of
notice of potential liability or responsibility for any violation, or alleged
violation of, any federal, state or local law, rule 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
18
<PAGE>
Borrower, or (vii) the occurrence of an event or condition which may render the
Borrower unable to qualify as a REIT under the Code.
(i) CHANGES TO INDEBTEDNESS. Within 30 days prior thereto, notice of any
proposed extension, renewal, refinancing or modification of Indebtedness made
pursuant to Section 6.01(iv) or Section 6.09.
5.02. PRESERVATION OF EXISTENCE AND FRANCHISES. The Borrower will do
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights, franchises and authority and will at all times
take all reasonable steps necessary to qualify to be taxed as a REIT as long as
a REIT is accorded substantially the same treatment under the United States
income tax laws from time to time in effect as under Sections 856-860 of the
Code, in effect at the date of this Agreement, as originally executed.
5.03. BOOKS, RECORDS AND INSPECTIONS. The Borrower will keep complete
and accurate books and records of its transactions in accordance with good
accounting practices on the basis of Generally Accepted Accounting Principles
applied on a consistent basis (including the establishment and maintenance of
appropriate reserves). The Borrower will permit, on reasonable notice, officers
or designated representatives of the Lender to visit and inspect its books of
account and records and any of its properties or assets and to discuss the
affairs, finances and accounts of the Borrower with, and be advised as to the
same by, its officers, directors and independent accountants.
5.04. COMPLIANCE WITH LAW. The Borrower will comply in all material
respects with all applicable laws, rules, regulations and orders of, and all
applicable restrictions imposed by, all applicable governmental bodies, foreign
or domestic, or authorities and agencies thereof (including quasi-governmental
authorities and agencies), in respect of the conduct of its business and the
ownership of its property.
5.05. INSURANCE. The Borrower will at all times maintain in full force
and effect insurance (including worker's compensation insurance, liability
insurance, casualty insurance) in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice.
5.06. MAINTENANCE OF PROPERTY. The Borrower will maintain and preserve
its properties and assets in good repair, working order and condition, normal
wear and tear excepted, and will make, or cause to be made, in such properties
and assets from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses.
5.07. PLAN ASSETS. The Borrower will use its best efforts to not take
any action that would cause it to be deemed to hold Plan Assets at any time.
19
<PAGE>
5.08. DIRECTORS; BANKRUPTCY PROCEEDINGS. (a) The Borrower hereby
agrees that (x) as of the Closing Date, it shall invite a representative
designated by Lender to attend as an observer all meetings (in person,
telephonic or otherwise) of the Board of Directors of the Borrower, wherever or
however conducted or held, (y) as of the Borrower Put Closing Date relating to
the Initial Shares, it shall either cause the due and proper appointment of a
designee of Lender to the Board of Directors of the Borrower or effect and
accept the resignation of one of the members of its Board of Directors as
designated by the Board of Directors of Borrower and shall replace such member
of the Board of Directors with, and duly and properly appoint, a designee of
Lender to the Board of Directors of Borrower as of such Borrower Put Closing
Date, and (z) as of the Borrower Put Closing date relating to the Subsequent
Shares, it shall effect and accept the resignation of one of the members of its
Board of Directors (other than the member designated by the Lender pursuant to
the preceding clause (y) above) as designated by the Board of Directors of
Borrower and shall replace such member of the Board of Directors with, and duly
and properly appoint, a designee of Lender to the Board of Directors of Borrower
as of such Borrower Put Closing Date; PROVIDED, HOWEVER, that if the appointment
of the designee of Lender to the Board of Directors of Borrower pursuant to
clause (z) above shall cause the directors then in office who were elected by
the holders of Common Stock to constitute less than a majority of the whole
Board of Directors of the Borrower, then Borrower, in lieu of such appointment
of Lender's designee to the Board of Directors of Borrower pursuant to clause
(z) above, shall effect the nomination of a designee of Lender (and, in any
case, the directors appointed to the Board of Directors pursuant to clauses (y)
and (z) above upon the expiration of each such director's term) to the Board of
Directors at the next succeeding annual or special meeting of holders of Common
Stock at which directors shall be elected to the Board of Directors of Borrower
and shall affirmatively endorse and recommend to the holders of Common Stock
that such designee of Lender (and, in any case, the directors appointed to the
Board of Directors pursuant to clauses (y) and (z) above upon the expiration of
each such director's term) be elected to the Board of Directors of Borrower at
such annual or special meeting. In the event that a representative of Lender is
present as an observer at a meeting of the Board of Directors of Borrower
pursuant to clause (x) above and the Board of Directors of Borrower deems, in
good faith, that the continued presence of the representative of Lender as an
observer at the meeting creates a conflict of interest, then the representative
of Lender present as an observer at such meeting shall be excused from such
meeting for and only so long as the Board of Directors shall take under
consideration the matter creating the conflict of interest. Any designee of
Lender for the Board of Directors of Borrower shall not be reasonably
disapproved by the Borrower, but Borrower agrees that Samuel Zell and Randall K.
Rowe will not in any event be disapproved.
(b) All of the Lender's rights pursuant to this Section 5.08 shall expire
upon the full repayment of the Loan and any interest and other charges accrued
thereunder pursuant to this Agreement and the repurchase of all of the Shares
pursuant to Section 8.02 hereof.
20
<PAGE>
5.09. RCP/RCPA BANKRUPTCY PROCEEDINGS.
(a) The Borrower shall send to Lender, via overnight courier (or, if
requested by Lender, via facsimile) any and all pleadings and other documents
filed by the Borrower in the Chapter 11 cases (the "Cases") of RCP and/or RCPA
or received by the Borrower in any way relating to the Cases (collectively "RCP
Pleadings") and shall immediately advise Lender orally of any "emergency"
matters relating to the RCP Pleadings. RCP Pleadings shall be sent by the
Borrower on the same day received by the Borrower (or in the case of RCP
Pleadings filed by the Borrower, on the day filed by the Borrower).
(b) Any and all RCP Pleadings filed by the Borrower in the Cases that are
material (as determined solely by Lender) shall be in form and substance
reasonably satisfactory to Lender. The Borrower shall not file any material RCP
Pleadings, nor take any other action that is material (as determined solely and
reasonably by Lender) in any way relating to the cases without the prior express
oral or written consent of Lender. The Borrower shall provide Lender with
copies of all RCP Pleadings proposed to be filed by the Borrower in the cases,
and shall fully advise Lender of any material action proposed to be taken by the
Borrower in any way relating to the Cases, no less than 48 hours prior to any
such proposed filing or action (and shall fully advise Lender orally if any such
action is to be taken on a shorter term or "emergency" basis).
SECTION 6
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Agreement is
in effect and until the Loan, together with all interest, fees and other
obligations hereunder, has been paid in full:
6.01. INDEBTEDNESS. The Borrower will not contract, create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness arising under this Agreement and the other Loan
Documents and Indebtedness issued as required by the Goldman Loan Agreement
and the "Loan Documents" as defined therein as existing on the date hereof;
(ii) Current liabilities for taxes and assessments incurred or arising
in the ordinary course of business;
(iii) Indebtedness in respect of current accounts payable or
accrued (other than for borrowed money or purchase money obligations) and
incurred in the ordinary course of business; PROVIDED, that all such
liabilities, accounts and claims shall be paid when due (or in conformity
with customary trade terms);
(iv) Indebtedness in effect on the date hereof (as specified in
Schedule 4.09); and
21
<PAGE>
(v) Unsecured working capital Indebtedness up to an aggregate of
$15,000,000.
6.02. LIENS. Except with respect to Permitted Liens, the Borrower will
not (i) contract, create, incur, assume or permit to exist any Lien with respect
to any of its property or assets of any kind (whether real or personal, tangible
or intangible), whether now owned or hereafter acquired, (ii) sell any of its
property or assets subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets (including sales of accounts
receivable or notes with recourse to it) or (iii) assign any right to receive
income.
6.03. CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS. Without the
consent of the Lender, the Borrower will not dissolve, liquidate, or wind up its
affairs, and will not enter into any transaction of merger or consolidation, or
sell or otherwise dispose of all or any part of its property or assets or, other
than in the ordinary course of its business, purchase, lease or otherwise
acquire (in a single transaction or a series of related transactions) all or any
part of the property or assets of any Person.
6.04. ADVANCES, INVESTMENTS AND LOANS. The Borrower will not lend
money or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any Person except for Permitted Investments.
6.05. DIVIDENDS. The Borrower will not declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, Common Stock 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). The
Borrower will not make any payment on account of a Warrant or Stock Appreciation
Right except to the extent required by the Stock Appreciation Rights Agreement
and the Warrant Agreement.
6.06. MODIFICATIONS TO MORTGAGE DOCUMENTS. Without the consent of
Lender, the Borrower will not amend or in any way waive or modify any payment
provision of the Mortgage or the Mortgage Note and will not amend Article X of
the 1985 Loan Agreement or the Purchase Option.
6.07. MORTGAGE CONVERSION. Without the consent of Lender, the Borrower
will not exercise the rights granted to it in the Purchase Option and Article X
of the 1985 Loan Agreement.
6.08. MODIFICATION OR PREPAYMENT OF INDEBTEDNESS. The Borrower will
not modify any Indebtedness if (i) quarterly debt service of the Borrower would
be materially increased or the cash flow of the Borrower would be materially
decreased as a result thereof or (ii) the business, properties, assets,
condition (financial or otherwise) or prospects of the Borrower might otherwise
be materially adversely affected. Except on a PARI PASSU basis with the Loan,
and unless the Borrower also repurchases Shares on a PARI PASSU basis, the
Borrower will not prepay or acquire any of its Indebtedness (other than as
required by the terms thereof as in effect on the date hereof or
22
<PAGE>
permitted hereunder in respect of the Goldman Loan Agreement or under the
Debenture Purchase Agreement in respect of the 14% Debentures and except for the
Indebtedness permitted under Section 6.01(iv)) and will cause to remain
outstanding in full force and effect until their respective termination dates
the interest rate swap agreements specified in Schedule 4.09.
SECTION 7
EVENTS OF DEFAULT
7.01. EVENTS OF DEFAULT. An Event of Default shall exist upon the
occurrence of any of the following specified events (each an "Event of
Default"):
(a) PAYMENT. The Borrower shall (i) default in the payment when due
of any interest or principal owing hereunder or under the Note (including
any prepayment after giving notice thereof in accordance with Section
2.05), or (ii) default in the payment when due of any fees or other amounts
owing hereunder, under the Note, or in connection herewith and such default
referred to in this subparagraph (ii) shall continue unremedied for at
least ten days; or
(b) REPRESENTATIONS. Any representation, warranty or statement made
on the date hereof or deemed to be made as of any subsequent date by the
Borrower herein or in any of the Loan Documents or in any statement or
certificate delivered or required to be delivered pursuant hereto or
thereto shall prove untrue on the date as of which it was made or deemed to
have been made; or
(c) COVENANTS. The Borrower shall (i) default in the due performance
or observance of any term, covenant or agreement contained in Section
5.01(h)(i), 5.08, 5.09, Section 6 or Section 8.02 hereof or (ii) default in
the due performance or observance by it of any term, covenant or agreement
(other than those referred to in subsection (a), (b) or (c) (i) of this
Section 7.01) contained in this Agreement and such default referred to in
this subparagraph (ii) shall continue unremedied for a period of at least
30 days after notice from the Lender of such default; or
(d) LOAN DOCUMENTS. The Borrower shall default in the due
performance or observance of any term, covenant or agreement in any of the
Loan Documents (subject to applicable grace or cure periods, if any)
applicable to it, or the Loan Documents shall fail to be in full force and
effect or to give the Lender the Liens, rights, powers and privileges
purported to be created thereby (except insofar as such failure is due to
the act of the Lender); or
(e) BANKRUPTCY, ETC. Other than as requested by the Lender, (i) the
Borrower shall commence a voluntary case concerning itself under the
Bankruptcy Code in Title 11 of the United States Code (as amended,
modified, succeeded or replaced, from time to time, the "Bankruptcy Code");
or (ii) an involuntary case is commenced against the Borrower
23
<PAGE>
under the Bankruptcy Code and the petition is not dismissed within 90 days
after commencement of the case; or (iii) a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of all or substantially
all of the property of the Borrower; or (iv) the Borrower commences any
other proceeding under any reorganization, arrangement, adjustment of the
debt, relief of creditors, dissolution, insolvency or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower;
or (v) there is commenced against the Borrower any such proceeding which
remains undismissed for a period of 90 days after commencement of such
proceeding; or (vi) the Borrower is adjudicated insolvent or bankrupt; or
(vii) any order of relief or other order approving-any such case or
proceeding is entered; or (viii) the Borrower suffers appointment of any
custodian or the like for it or for any substantial part of its property
and such appointment continues unchanged or unstayed for a period of 90
days after commencement of such appointment; or (ix) the Borrower makes a
general assignment for the benefit of creditors; or (x) any corporate
action is taken by the Borrower for the purpose of effecting any of the
foregoing; or
(f) DEFAULTS UNDER OTHER AGREEMENTS. (i) The Borrower shall (x)
default in any payment in an amount of $1,000,000 or more (beyond the
applicable grace period with respect thereto, if any) with respect to any
other Indebtedness, or (y) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist, the effect of
which default, in the case of (y), or other event or condition is to cause,
or permit, the holder or holders of such Indebtedness (or trustee or agent
on behalf of such holders) to cause (determined without regard to whether
any notice or lapse of time is required), any such Indebtedness, in an
amount of $1,000,000 or more, to, become due prior to stated maturity, or
(ii) any such Indebtedness of the Borrower, in an amount of $1,000,000 or
more, shall be declared due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment, prior to the stated
maturity thereof.
(g) JUDGMENTS. One or more final judgments or decrees shall be
entered against the Borrower involving a liability of $1,000,000 or more in
any instance, or $5,000,000 or more in the aggregate for all such judgments
and decrees collectively (not paid or fully covered by insurance provided
by a carrier who has acknowledged coverage) and any such judgments or
decrees shall not have been vacated, discharged, paid or stayed or bonded
pending appeal within the time permitted to appeal therefrom.
7.02 REMEDIES. Upon the occurrence of an Event of Default, the Lender
shall, by written notice to the Borrower, take any of the following actions
without prejudice to its rights to enforce its claims against the Borrower,
except as otherwise specifically provided for herein:
(i) ACCELERATION OF LOAN. Declare the unpaid principal of and any
accrued interest in respect of the Loan and the Note to be due whereupon
the same shall be
24
<PAGE>
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower;
(ii) ENFORCEMENT OF RIGHTS. Enforce any and all amounts due,
including, without limitation, all rights and interests created and
existing under any of the Loan Documents and all rights of set-off;
PROVIDED, HOWEVER, that, notwithstanding the foregoing, if an Event of Default
specified in Section 7.01(e) shall occur, then the Note and the Loan and the
Lender Put Option shall immediately become due and payable and be deemed
exercised without the giving of any notice or other action by the Lender or any
Lender.
SECTION 8
PUT OPTIONS
8.01. BORROWER PUT OPTION. (a) Subject to the terms and conditions
set forth herein, the Lender shall become obligated to purchase, in whole but
not in part, at the option of the Borrower (the "Borrower Put Option"), the
Initial Shares and the Subsequent Shares on October 2, 1995 and December 5,
1995, respectively (each, a "Borrower Put Closing Date" and, collectively, the
"Borrower Put Closing Dates"), at the per share purchase price equal to the Fair
Market Value of the Common Stock, upon delivery of a written notice of purchase
(a "Purchase Notice") stating that (i) Borrower has elected to require the
purchase of the Initial Shares or the Subsequent Shares, as the case may be, by
Lender on the applicable Borrower Put Closing Date and (ii) Borrower agrees to
satisfy all conditions precedent to such a purchase pursuant to Section 8.01(b)
hereof, at any time from the opening of business on the date that is five
Business Days prior to such Borrower Put Closing Date until the close of
business on the date that is three Business Days prior to such Borrower Put
Closing Date.
Upon receipt by the Lender of a Purchase Notice and upon satisfaction of
the conditions set forth in Section 8.01(b) hereof, on the relevant Borrower Put
Closing Date the Lender shall pay to the Borrower an aggregate amount equal to
the Fair Market Value of the Common Stock multiplied by the number of Initial
Shares or Subsequent Shares, as the case may be, by making a wire transfer of
such amount to an account designated by the Borrower.
(b) PAYMENT OF FUNDS. The obligation of the Lenders to disburse the
amount of the funds in respect of the Initial Shares or the Subsequent Shares,
as the case may be, is subject to the satisfaction (or waiver by the Lender on
or prior to the respective Borrower Put Closing Date) of the following
conditions (in form and substance acceptable to the Lender):
(i) SHARE CERTIFICATES. Certificates representing the Initial Shares
and the Subsequent Shares, as the case may be, shall have been duly
executed and delivered by the Borrower to the Lender in such denominations
and registered in such names as the Lender may request in writing two
Business Days prior to the Borrower Put Closing Date.
25
<PAGE>
(ii) NO DEFAULT; REPRESENTATIONS AND WARRANTIES. Receipt by the
Lender of a certificate signed by the President of the Borrower as of the
relevant Borrower Put Closing Date to the effect that both at the time of
the exercise of the Borrower Put Option and after giving effect thereto (1)
there shall exist no Default or Event of Default, and (2) all
representations and warranties contained herein and in the other Loan
Documents then in effect shall be true and correct in all material
respects.
(iii) OPINION OF COUNSEL. Receipt by the Lender of a legal
opinion, or opinions, in form and substance reasonably satisfactory to the
Lender and dated as of the relevant Borrower Put Closing Date, from
Shearman & Sterling or such other legal counsel to the Borrower reasonably
satisfactory to the Lender as to legal matters referred to in this Section
8.1 or in Section 4.
(iv) CORPORATE DOCUMENTS. Receipt by the Lender of all documents
reasonably requested by the Lender relating to the existence of the
Borrower, the validity of the Initial Shares and the Subsequent Shares, as
the case may be, and other matters relating thereto, in form and substance
satisfactory to the Lenders, including, but not limited to:
(aa) CERTIFICATES OF AUTHORIZATION AND INCUMBENCY. Certificate
of the Secretary of the Borrower, dated as of the Closing Date, as to
resolutions approving and adopting the this Agreement and authorizing
the execution and delivery hereof and the authorization and issuance
of the Initial Shares and the Subsequent Shares, as the case may be,
and as to the authority of the persons executing such documents.
(bb) CERTIFICATES OF INCORPORATION AND BY-LAWS. Copies of the
Certificate of Incorporation and By-laws of the Borrower, together
with all amendments thereto certified as of the relevant Borrower Put
Closing Date.
(cc) CERTIFICATES OF GOOD STANDING OR EXISTENCE. Certificates of
good standing or existence for the Borrower issued as of a recent date
by its state of organization and each other state where the Borrower,
by the nature of its business, is required to qualify or register.
(v) RELATED TRANSACTIONS. The closing of the transactions relating
to the Loan and the Note pursuant to this Agreement shall have been
completed and the full amount of the Loan shall be outstanding.
(vi) AGREEMENT DEFAULT. No Default or Event of Default under this
Agreement or any other Loan Document shall have occurred and be continuing.
(vii) MARKET CONDITIONS. There shall be no (i) suspension or
material limitation in trading in securities generally on the New York
Stock Exchange (the "NYSE"); (ii) suspension or material limitation in
trading in the Borrower's securities on the NYSE; (iii)
26
<PAGE>
general moratorium on commercial banking activities in New York declared by
either Federal or New York State authorities; or (iv) since August 14,
1995, outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (v) in the judgment of
the Lender makes it impracticable or inadvisable to proceed with the
transactions contemplated hereunder on the terms and in the manner
contemplated herein.
(viii) BUSINESS COMBINATION. Except with respect to a transaction
involving Lender, its Affiliates, designees and assignees, the Borrower
shall not have entered into any arrangement or agreement, or have disclosed
publicly or be obligated to disclose publicly a transaction or potential
transaction, in respect of a "business combination" as defined in the
Certificate of Incorporation of the Borrower with any Person other than
Lender, its Affiliates, designees or assigns (but disregarding any
reference to an "Acquiring Person" in such definition).
(ix) H.S.R. WAITING PERIOD. Prior to the Borrower Put Closing Date
relating to the Subsequent Shares, Borrower and Lender shall make all
filings, applications, statements and reports to the Federal government
agencies or entities which are required to be made prior to such Borrower
Put Closing Date by or on behalf of Borrower and Seller pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act") and the
applicable waiting period under the HSR Act shall have expired without
action by the Justice Department of the Federal Trade Commission to prevent
consummation of such Borrower Put Option relating to the Subsequent Shares,
or such waiting period shall have been terminated earlier.
8.02. LENDER PUT OPTION; REGISTRATION RIGHTS. (a) Subject to the
terms and conditions set forth in this Section 8.02, the Borrower shall become
obligated to purchase, or arrange for the purchase by a third party of, the
Shares, in whole but not in part, at the option of the Lender (the "Lender Put
Option") exercised pursuant to written notice to Borrower, if Borrower, its
Affiliates or its representatives disclose publicly (or are obligated to
disclose publicly) the existence of an agreement in which Borrower is obligated
or intends to pursue negotiations or discussions with any Person other than
Lender, its Affiliates, designees or assigns, relating to any Recapitalization
Transaction. The closing of the Lender Put Option must occur within five (5)
Business Days after Borrower receives Lender's notice that it is exercising the
Lender Put Option (the "Lender Put Closing Date"), and the purchase price for
the Shares shall be the per share price equal to the per share purchase price
paid by the Lender for the Shares pursuant to Section 8.01 hereof. On the
Lender Put Closing Date, the Borrower or such third party shall pay to the
Lender an aggregate amount equal to the per share purchase price of the Common
Stock as determined pursuant to the preceding sentence multiplied by the number
of Shares by making a wire transfer of such amount to an account designated by
the Lender.
27
<PAGE>
(b) Upon the purchase of any Shares by Lender pursuant to Section 8.01
above, Borrower shall grant demand registration rights to the Lender in respect
of any Shares so purchased, which rights shall be exercisable within three
months of the applicable Borrower Put Closing Date and shall contain such other
terms and conditions substantially similar to those granted to Goldman Sachs
Mortgage Company and Whitehall Street Real Estate Limited Partnership V
(collectively, the "Goldman Affiliates") pursuant to that Registration Rights
Agreement, dated as of December 29, 1994, by and among Borrower and the Goldman
Affiliates.
8.03 PRIVATE PLACEMENT. THE SHARES ISSUED PURSUANT TO THIS SECTION 8 HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON
EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND SUCH LAWS.
THE SHARES OFFERED HEREBY ARE BEING OFFERED ONLY TO INSTITUTIONAL INVESTORS
WHO ARE ACCREDITED INVESTORS.
THE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM AND IN COMPLIANCE WITH CERTAIN RESTRICTIONS
SET FORTH HEREIN. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
SECTION 9
MISCELLANEOUS
9.01. NOTICES. Except as otherwise expressly provided herein, all
notices and other communications shall have been duly given and shall be
effective (i) when delivered, (ii) when transmitted via telecopy (or other
facsimile device) to the number set out below, (iii) the day following the day
on which the same has been delivered prepaid to a reputable national overnight
air courier service or (iv) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, in each case
to the respective parties at the address set forth below, or at such other
address as such party may specify by written notice to the other party hereto:
28
<PAGE>
if to the Borrower: Rockefeller Center Properties, Inc.
1270 Avenue of the Americas
New York, New York 10020
Attention: Secretary
Telephone: (212) 698-1440
Telecopy: (212) 698-1453
with a copy to: Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
Attention: Cornelius J. Dwyer, Jr.
Telephone: (212) 848-4000
Telecopy: (212) 848-7179
if to the Lender: Zell/Merrill Real Estate Opportunity
Partners Limited Partnership III
Two North Riverside Plaza
Chicago, Illinois 60606
Attention: Randall K. Rowe
Telephone: (312) 466-4050
Telecopy: (312) 454-9946
With a copy to: Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza-Suite 1515
Chicago, Illinois 60606
Attention: Donald J. Liebentritt
William C. Hermann
Telephone: (312) 466-3456
Telecopy: (312) 454-0335
9.02. BENEFIT OF AGREEMENT; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective successors and assigns of the parties hereto;
PROVIDED that the Borrower may not assign and transfer any of its interests
without prior written consent of the Lender.
29
<PAGE>
(b) The Lender may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in the Loan. In the
event of any such grant by the Lender of a participating interest to a
Participant, whether or not upon notice to the Borrower, the Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrower
shall continue to deal solely and directly with the Lender in connection with
the Lender's rights and obligations under this Agreement. Any agreement
pursuant to which the Lender may grant such a participating interest shall
provide that the Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder including the right to approve
any amendment, modification or waiver of any provision of this Agreement;
PROVIDED, that such participation agreement may provide that the Lender will not
agree to any modification, amendment or waiver of this Agreement described in
clauses (i) through (iii), inclusive, of Section 9.04 without the consent of the
Participant. The Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.07 and 9.04 with respect to its participating interest;
PROVIDED, that all amounts payable to the Lender for the account of a
Participant under Sections 2.07 and 9.04 shall be determined as if the Lender
had not granted such participation to the Participant.
(c) The Lender may at any time assign to one or more banks or other
institutions (each as "Assignee") all or a proportionate part, of its rights and
obligations under this Agreement and the Note, and such Assignee shall assume
such rights and obligations, pursuant to an instrument executed by such Assignee
and the transferor Lender. Upon execution and delivery of such an instrument,
notification to the Borrower of such Assignment and payment by such Assignee to
the transferor Lender of an amount equal to the purchase price agreed between
the transferor Lender and such Assignee, such Assignee shall be a Lender party
to this Agreement and shall have all the rights and obligations of the Lender
and the transferor Lender shall be released from its obligations hereunder to a
corresponding extent. Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Lender and the Borrower shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee.
(d) The Lender shall maintain at its address referred to in Section 9.01 a
register for the recordation of the names and addresses of the Participants
and/or Assignees and the principal amount of the Loan owing to each Participant
and/or Assignee from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower and the Lender shall treat only the Person whose name is recorded in
the Register as a Participant and/or Assignee hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Participant and/or Assignee at any reasonable time and from time to time
upon reasonable prior notice.
9.03. NO WAIVER; REMEDIES CUMULATIVE. (a) No failure or delay on the
part of the Lender in exercising any right, power or privilege hereunder or
under any of the Loan Documents and no course of dealing between the Borrower
and any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any of the
Loan Documents preclude any other or further exercise thereof or the exercise of
any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and
30
<PAGE>
not exclusive of any rights or remedies which the Lender would otherwise have.
No notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Lender to any other or further action
in any circumstances without notice or demand.
(b) The parties hereto hereby agree that money damages would not be a
sufficient remedy for any breach or threatened breach of Section 5.08, 5.09 or
8.02 of this Agreement by any party to this Agreement and that each party to
this Agreement shall be entitled, without the requirement of posting a bond or
other security, to specific performance and injunctive or other equitable relief
in the event of any such breach or threatened breach, in addition to all other
remedies available to such party at law or in equity. In the event of
litigation relating to this Agreement, if a court of competent jurisdiction
finally determines that either party has breached this Agreement, then the
defaulting party shall be liable and pay to the other the legal fees and
expenses incurred by the other party in connection with such litigation,
including any appeals therefrom.
9.04. PAYMENT OF EXPENSES; INDEMNIFICATION. The Borrower agrees to:
(i) pay and hold the Lender harmless from and against any and all
present and future stamp and other similar taxes with respect to the
foregoing matters and save the Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to the Lender) to pay such taxes;
(ii) indemnify the Lender, their respective officers, directors,
partners, employees, representatives, affiliates and agents from and hold
each of them harmless against any and all losses, liabilities, claims,
damages or expenses incurred by any of them as a result of, or arising out
of, or in any way related to, or by reason of, any investigation,
litigation or other proceeding (whether or not the Lender is a party
thereto) related to the entering into and/or performance of this Agreement,
the Loan Documents or the use of proceeds of the Loan or the Shares
hereunder or the consummation of any other transactions contemplated in
this Agreement or the Loan Documents, including, without limitation, the
reasonable fees and disbursements of counsel incurred in connection with
any such investigation, litigation or other proceeding, as the same are
incurred (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified); and
(iii) if the indemnification provided for in Section 9.04(ii) is
unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses (or actions
in respect thereof) referred to therein, then the Borrower shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Borrower on the one hand and the Lender on the
other from the consummation of the transactions contemplated in this
Agreement. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each
indemnifying party shall
31
<PAGE>
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Borrower on the one hand and the Lender on
the other in connection with the actions which resulted in such losses,
liabilities, claims, damages or expenses (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Borrower on the one hand and the Lender on the
other hand shall be deemed to be in the same proportion as the total net
proceeds from the Loan (before deducting expenses) actually received by the
Borrower bear to the dollar amount of proceeds received by the Lender
hereunder. The relative fault shall be determined by reference to, among
other things, whether the action of the Borrower on the one hand or the
Lender on the other and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Borrower and the Lender agree that it would not be just and
equitable if contributions pursuant to this subsection (iii) were
determined by any method of allocation which does not take account of the
equitable considerations referred to above in this subsection (iii). The
amounts paid or payable by an indemnified party as a result of the losses,
liabilities, claims, damages or expenses (or actions in respect thereof)
referred to above in this subsection (iii) shall be deemed to include any
legal or other expenses reasonably.incurred by such indemnified party in
connection with investigating or defending any such action or claim, as the
same are incurred.
Neither the Lender nor any of its Affiliates, designees, assignees, partners,
directors, officers, agents or employees, shall be liable to the Borrower for
any action taken or omitted to be taken by it or any of them under or in
connection with any Loan Document, except for gross negligence or willful
misconduct attributable to such Person.
9.05. AMENDMENTS, WAIVERS AND CONSENTS. Any provision of this
Agreement, the Note or any of the Loan Documents may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Lender.
9.06. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
9.07. HEADINGS. The headings of the sections and. subsections hereof
are provided for convenience only and shall not in any way affect the meaning or
construction of any provision-of this Agreement.
9.08. SURVIVAL OF INDEMNITIES. All indemnities set forth herein,
including, without limitation, in Section 9.04, shall survive the execution and
delivery of this Agreement, the making of the Loan, and the repayment of the
Loan and other obligations hereunder.
9.09. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. Nothing herein shall affect
32
<PAGE>
the right of the Lender to commence legal proceedings or to otherwise proceed
against the Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement, any of the Loan
Documents brought in the courts referred to in subsection (a) hereof and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
(c) THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
9.10. SEVERABILITY. If any provision of this Agreement is determined
to be illegal, invalid or unenforceable, such provision shall be fully severable
and the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
9.11. ENTIRETY. This Agreement together with the other Loan Documents
represents the entire agreement of the parties hereto and thereto, and
supersedes all prior agreements and understandings, oral or written, if any,
relating to the Loan Documents or the transactions contemplated herein;
PROVIDED, HOWEVER, that nothing contained herein shall affect any of the
obligations of the Borrower to Lender (and its respective Affiliates, designees
or assignees) under the LOI.
9.12. SUBSEQUENT TRANSACTION BETWEEN LENDER AND BORROWER. If Borrower
consummates a Recapitalization Transaction with Lender, its Affiliates,
designees or assigns, concurrently with the completion thereof, the Borrower
shall (a) repay or be deemed to have repaid, or incorporated into and made part
of any Recapitalization Transaction between Borrower and Lender, its Affiliates,
designees or assigns, at the option of Lender, the Loan to the extent that the
Loan remains outstanding at such time, (b) repurchase or be deemed to have
repurchased, or incorporated into and made part of any Recapitalization
Transaction between Borrower and Lender, its Affiliates, designees or assigns,
at the option of Lender, the Shares then issued and outstanding at a price per
share equal to the per share purchase price paid by the Lender for the Shares
pursuant to Section 8.01 hereof, and (c) pay any and all other amounts then due
and payable to Borrower hereunder.
9.13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by the Borrower herein shall survive delivery of the Note
and the making of the Loan hereunder.
9.14. FINANCIAL ACCOMMODATION, ETC. It is hereby agreed by the parties
hereto that this Agreement is a contract of the kind described in 11 U.S.C.
365(c)(2).
* * *
33
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
ROCKEFELLER CENTER PROPERTIES, INC., a
Delaware corporation
By: /s/ Richard M. Scarlata
----------------------------------------------------
Richard M. Scarlata
President
ZELL/MERRILL LYNCH REAL ESTATE OPPORTUNITY PARTNERS
LIMITED PARTNERSHIP III, an Illinois limited
partnership
By: ZML Partners Limited Partnership III, an Illinois
limited partnership, general partner
By: ZM Investors Limited Partnership III, an
Illinois limited partnership, general partner
By: Zell/Merrill III, Inc., an Illinois
corporation, general partner
By: /s/ Donald J. Liebentritt
------------------------------------
Name: Donald J. Liebentritt
Title: Vice President
34
<PAGE>
SCHEDULE 4.09
Indebtedness
<TABLE>
<CAPTION>
<S> <C>
A. Outstanding Indebtedness Amounts
------------------------ -------
Current Coupon Convertible Debentures due 2000 $213,170,000
Zero Coupon Convertible Debentures due 2000 346,019,540 (1)
Floating Rate Notes due 2000 150,000,000
14% Debentures 75,000,000
Accrued interest payable in connection with Current
Coupon Convertible Debentures 49,008,267 (2)
Accrued interest payable in connection with Floating
Rate Notes 2,514,323 (2)
Accrued interest payable in connection with 14% Debentures 1,776,736 (2)
Stock Appreciation Rights liability 1,182,249 (3)
Interest Rate Swap Agreement 10,427,138 (4)
<FN>
(1) Accreted value at 7/31/95
(2) Accrued balance at 7/31/95
(3) As of 6/30/95
(4) Mark-to-market settlement price at 6/30/95 based on market quotes
</TABLE>
Also see attached page 35A.
35
<PAGE>
INTEREST RATE SWAP AGREEMENTS:
<TABLE>
<CAPTION>
ASSET LIABILITY
----- ---------
START MATURITY INTEREST INTEREST MARKET VALUE
COUNTERPARTY AMOUNT DATE DATE INCOME EXPENSE 6/30/95
- ------------ ------ ---- ---- ------ ------- -------
<S> <C> <C> <C> <C> <C> <C>
1. AIG $30,000,000 14-Jan-88 14-Jan-98 6.75% (A/360) 9.84% (30/360) (3,057,538)
6 MONTH LIBOR/SEMI-ANN FIX/SEMI-ANNUAL
JUL 14 & JAN 14 JUL 14 & JAN 14
2. BARCLAYS $25,000,000 28-Jan-88 12-Mar-98 6.50% (A/360) 9.33% (30/360) (2,306,835)
6 MONTH LIBOR/SEMI-ANN FIX/SEMI-ANNUAL
MAR 12 & SEP 12 MAR 12 & SEP 12
3. BARCLAYS $50,000,000 20-Apr-88 20-Apr-98 6.375% (A/360) 9.885% (30/360) (5,062,765)
6 MONTH LIBOR/SEMI-ANN FIX/SEMI-ANNUAL
APR 20 & OCT 20 APR 20 & OCT 20
------------ ------------
TOTAL $105,000,000 ($10,427,138)
------------ ------------
------------ ------------
</TABLE>
35-A
<PAGE>
SCHEDULE 4.10
Litigation
See attached page 36A
36
<PAGE>
ROCKEFELLER CENTER PROPERTIES, INC.
NOTES TO FINANCIAL STATEMENTS (cont'd)
(UNAUDITED)
5. LEGAL MATTERS
On January 23, 1995, Bear, Stearns & Co., Inc. and Donaldson, Lufkin & Jenrette
Securities Corporation commenced an action against the Company in the Supreme
Court of New York, County of New York. The plaintiffs allege that the Company
breached a contract relating to the plaintiffs' provision of investment banking
services to the Company. The plaintiffs seek $5,062,500 in damages, plus costs,
attorneys' fees and interest. The case is in the initial pleading stage. The
Company is vigorously contesting the plaintiffs' allegations and on February 15,
1995, counsel to the Company filed a notice of a motion for an order dismissing
the complaint for failure to state a cause of action and granting such other and
further relief as the Court deems just and proper. The Company does not expect
the outcome of this litigation to have a material effect on the financial
condition of the Company.
On May 11, 1995 the two partnerships comprising the Borrower under the Mortgage
filed for protection under Chapter 11 of the Federal Bankruptcy Code in the
United States Bankruptcy Court for the Southern District of New York as
described in Note 1.
On May 24, 1995 Jerry Krim commenced an action encaptioned KRIM V. ROCKEFELLER
CENTER PROPERTIES, INC. AND PETER D. LINNEMAN. On June 7, 1995, Kathy Knight and
Moishe Malamud commenced an action encaptioned KNIGHT ET AL.V. ROCKEFELLER
CENTER PROPERTIES, INC. AND PETER D. LINNEMAN. Both actions were filed in the
United States District Court for the Southern District of New York and purport
to be brought on behalf of a class of plaintiffs comprised of all persons who
purchased the Company's common stock between March 20, 1995 and May 10, 1995.
The complaints allege that the Company and Dr. Linneman violated the federal
securities laws by their purported failure to disclose prior to May 11, 1995
that the Borrower would file for bankruptcy protection. The cases have been
consolidated. On July 28, 1995, the Company and Dr. Linneman filed answers to
the complaints denying plaintiffs' substantive allegations and asserting
numerous affirmative defenses. The Company and Dr. Linneman believe that
plaintiffs' allegations are without merit and intend to vigorously contest these
actions.
On July 6, 1995 Charal Investment Company, Inc. commenced a derivative action
against certain of the Company's present and former directors in the Court of
Chancery of the State of Delaware in and for New Castle County. The Company was
named as a nominal defendant. The plaintiff alleges that the directors breached
their fiduciary duties by: 1) using commercial paper proceeds to repurchase
Convertible Debentures; (2) entering into interest rate swaps; and 3) making
capital distributions to stockholders. Prior to the commencement of the action,
the Company's Board of Directors appointed a special committee of the Board to
review the plaintiff's pre-suit demand that it institute litigation on the
Company's behalf with respect to such claims and recommend a course of action to
the full board. Plaintiff nevertheless commenced the action, asserting that
circumstances did not permit further delay. In light of the fact that the
plaintiff seeks damages on behalf of the Company, the Company does not expect
the outcome of this litigation to have a material adverse effect on the
financial condition of the Company.
On July 31, 1995 L.L. Capital Partners, L.P. commenced an action against the
Company in the United States District Court in the Southern District of New
York. The plaintiff alleges that, prior to December 1993, the Company failed to
disclose its purported belief that the Rockefeller family and the Borrower's
corporate parent would cease to fund the Borrower's cash flow shortfalls. The
Company believes that plaintiff's allegations are without merit and intends to
vigorously contest this action.
36-A
<PAGE>
SCHEDULE 4.11
Material Agreements
with RCP or RCPA
Material Agreements -- None.
37
<PAGE>
SCHEDULE 4.16
Use of Proceeds
Borrower will use the proceeds of the Loan and the Shares solely for
working capital purposes consistent with the items set forth below:
<TABLE>
<CAPTION>
PROJECTED REIT CASH FLOW
(in millions)
1995
<S> <C> <C> <C> <C> <C> <C> <C>
CASH SOURCES JUNE JULY AUG. SEPT. OCT. NOV. DEC.
Beginning Free Cash Balance $ 50.6 $ 49.5 $ 48.6 $ (6.3) $ (7.9) $ (8.9)
RGI Interest Payment - - - - - -
Estimated Interest Income 0.2 0.2 0.2 0.0 0.0 0.0
Unsecured Working Capital Loans - - - - - -
------ ------ ----- ------ ------ ------
Total Cash Sources $ 50.8 $ 49.7 48.8 $ (6.2) $ (7.8) $ (8.9)
CASH REQUIREMENTS
Dividends $ - $ - $ - $ - $ - $ -
Interest Expense
Current Coupon Convertible Debentures $ - $ - $ - $ - $ - $ 27.7
Zero Coupon Convertible Debentures - - - - - -
Floating Rate Notes - - 4.1 - - 3.2
14% Debentures (1) - - - - - -
Unsecured Working Capital Loan - - - - - -
------ ------ ----- ------ ------ ------
Total Interest Expense $ - $ - $ 4.1 $ - $ - $ 30.9
Other Operating Expenses
Accounts Payable, Prepaid and Accrued $ 0.4 $ 0.5 $ 0.4 $ 0.3 $ 0.6 $ 1.3
Additional General and Administrative 0.5 0.5 0.5 0.5 0.5 0.5
Swaps, Net 0.5 - 0.3 0.8 - -
Principal Amortization - - - - - -
------ ------ ----- ------ ------ ------
Total Operating Expertises $ 1.3 $ 1.0 $ 1.2 $ 1.6 $ 1.1 $ 1.8
Total Cash Requirements $ 1.3 $ 1.0 $ 5.4 $ 1.6 $ 1.1 $ 32.7
Subtotal: Cash Balance $ 49.5 $ 48.6 $ 43.5 $ (7.9) $ (8.9) $(25.6)
Goldman Mandatory Net Cash Flow Prepayment $ - $ - $ 33.7 $ - $ - $ -
Ending Cash Balance (Deficit) (2) $ 50.6 $ 49.5 $ 48.6 $ (6.3) $ (7.9) $ (8.9) $(25.6)
Accrued Interest Reserve Balance (3) - - - 16.0 16.0 16.0 -
------ ------ ----- ------ ------ ------
Total Cash and Accrual $ 50.6 $ 49.5 $ 48.6 $ 9.8 $ 8.2 $ 7.1 $(25.6)
</TABLE>
In no event shall any of the proceeds of the Loan or the Shares be used to
fund any litigation or other dispute resolution on behalf of Borrower against
Lender.
38
<PAGE>
EXHIBIT A
Promissory Note
$10,000,000.00 August 29, 1995
ROCKEFELLER CENTER PROPERTIES, INC., a Delaware corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
Zell/Merrill Lynch Real Estate Opportunity Partners Limited Partnership III
(the "Lender"), to the account of the Lender at
_______________________________, in lawful money of the United States, the
principal sum of $10,000,000.00 (Ten Million Dollars) on the Maturity Date,
as such term is defined in the Agreement (as hereinafter defined). This
Note shall bear interest on the unpaid principal amount hereof, payable at
the rate and on the date set forth in the Agreement (as hereinafter
defined).
Except as provided in the Agreement, if this Note becomes due and
payable on a day which is not a Business Day (as defined in the Agreement),
the maturity hereof shall be extended to the next succeeding Business Day,
and interest shall be payable hereon at the rate specified in the Agreement
during such extension.
Except as provided in the Agreement, the Borrower waives presentment,
demand, protest or other notice of any kind.
This Note is the Note referred to in the Investment Agreement, dated
as of August 18, 1995, among the Borrower and the Lender (the "Agreement"),
and is entitled to the benefits provided therein. This Note is subject to
prepayment in whole or in part and its maturity is subject to acceleration
upon the terms provided in the Investment Agreement.
ROCKEFELLER CENTER PROPERTIES, INC.
By:
-----------------------------------------------
A-1
<PAGE>
EXHIBIT B
Officer's Certificate
I, Richard M. Scarlata, President & CEO of Rockefeller Center Properties,
Inc. (the "Borrower"), hereby certify that, to the best of my knowledge, with
respect to that certain Investment Agreement among the Borrower and the Lender,
dated as of August 18, 1995, as of the date of the Investment Agreement and as
of the date hereof, (i) no Default or Event of Default has occurred and is
continuing, and (ii) all representations and warranties contained in the
Agreement and in the other Loan Documents (as defined therein) now in effect are
true and correct in all material respects.
This 18th day of August, 1995.
ROCKEFELLER CENTER PROPERTIES, INC.
/s/ Richard M. Scarlata
Name: Richard M. Scarlata
-----------------------------------
Title: President & CEO
----------------------------------
B-1
