<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to _____________
Commission file number 1-8971
RCPI Trust
(Exact name of registrant as specified in its charter)
Delaware 13-7087445
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
c/o Tishman Speyer Properties, L.P.
45 Rockefeller Plaza, New York, N.Y. 10011
(Address of principal executive offices) (Zip Code)
(212) 332-6500
(Registrant's telephone number, including area code)
(Former name, former address, and former fiscal year, if changed since
last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
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RCPI TRUST
INDEX
<TABLE>
<CAPTION>
PART I--FINANCIAL INFORMATION PAGE
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<S> <C>
ITEM 1. FINANCIAL STATEMENTS
The accompanying unaudited, interim financial statements have been prepared in
accordance with the instructions to Form 10-Q. In the opinion of management, all
adjustments necessary for a fair presentation have been included.
RCPI Trust, Balance Sheets as of June 30, 1999 (unaudited) and
December 31, 1998 1
RCPI Trust, Statements of Operations for the quarters ended June 30, 1999 and
1998 (unaudited) and for the six months ended June 30, 1999 and 1998 (unaudited) 2
RCPI Trust, Statements of Cash Flows for the six months ended June 30, 1999 and
1998 (unaudited) 3
Notes to Financial Statements (unaudited) 4
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS 6
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 9
PART II--OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS 10
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K 11
</TABLE>
SAFE HARBOR FOR FORWARD-LOOKING STATEMENTS UNDER THE SECURITIES LITIGATION
REFORM ACT OF 1995.
Except for historical information contained herein, the Report on Form 10-Q
contains forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995 which involve certain risks and uncertainties. The
Company's actual results or outcomes may differ materially from those
anticipated. In assessing forward-looking statements contained herein, readers
are urged to carefully read those statements. When used in the Report on Form
10-Q, the words "estimate", "anticipate", "expect", "believe" and similar
expressions are intended to identify forward-looking statements.
<PAGE> 3
PART I -- FINANCIAL INFORMATION
ITEM 1. Financial Statements
RCPI TRUST
(a Delaware business trust)
BALANCE SHEETS
($ in thousands)
<TABLE>
<CAPTION>
As of As of
June 30, 1999 December 31,
(Unaudited) 1998
------------- ------------
<S> <C> <C>
ASSETS:
Real Estate:
Land $ 158,149 $ 158,149
Buildings and improvements 652,950 637,288
Tenant improvements 66,274 58,086
Furniture, fixtures and equipment 5,209 4,920
---------- ----------
882,582 858,443
Less: Accumulated depreciation and amortization 55,201 44,311
---------- ----------
827,381 814,132
Cash and cash equivalents 46,144 31,270
Restricted cash 10,488 10,120
Accounts receivable 4,509 6,680
Prepaid expenses 628 973
Deferred costs, net of accumulated
amortization of $7,307 and $5,918, respectively 48,014 40,724
Accrued rent 86,288 65,851
---------- ----------
Total Assets $1,023,452 $ 969,750
========== ==========
LIABILITIES AND OWNERS' EQUITY
Liabilities:
Zero coupon convertible debentures, net of unamortized
discount of $96,846 and $125,433, respectively $ 489,339 $ 460,752
14% debentures (includes premium of $22,287 and $23,127, respectively) 97,287 98,127
NationsBank loans 97,500 80,000
Accrued interest payable 4,599 4,738
Accounts payable and accrued expenses 14,600 21,392
Tenant security deposits payable 9,715 9,985
---------- ----------
Total Liabilities 713,040 674,994
Commitments and Contingencies
Owners' Equity 310,412 294,756
---------- ----------
Total Liabilities and Owners' Equity $1,023,452 $ 969,750
========== ==========
</TABLE>
SEE NOTES TO THE FINANCIAL STATEMENTS
1
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RCPI TRUST
(a Delaware business trust)
STATEMENTS OF OPERATIONS
($ in thousands)
(UNAUDITED)
<TABLE>
<CAPTION>
For the Quarters Ended For the Six Months Ended
June 30, June 30,
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues:
Base rental $ 57,593 $ 47,348 $113,696 $ 94,809
Escalations and percentage rents 1,116 1,428 2,997 3,344
Interest and other income 1,371 1,813 2,383 3,277
-------- -------- -------- --------
Total revenues 60,080 50,589 119,076 101,430
-------- -------- -------- --------
Expenses:
Interest 18,091 16,669 35,717 32,092
Real estate taxes 8,733 8,414 17,491 16,829
Payroll and benefits 5,071 5,689 10,123 10,080
Repairs, maintenance and supplies 3,546 4,067 6,757 6,905
Utilities 2,445 2,165 6,183 6,037
Cleaning 3,434 3,492 6,857 6,867
Professional fees 500 262 997 807
Insurance 227 263 449 577
Management and accounting fees 959 856 1,907 1,758
General and administration 1,061 1,331 1,830 2,157
Depreciation and amortization 7,220 5,859 15,109 11,324
-------- -------- -------- --------
Total expenses 51,287 49,067 103,420 95,433
-------- -------- -------- --------
Net income $ 8,793 $ 1,522 $ 15,656 $ 5,997
======== ======== ======== ========
</TABLE>
SEE NOTES TO THE FINANCIAL STATEMENTS
2
<PAGE> 5
RCPI TRUST
(a Delaware business trust)
STATEMENTS OF CASH FLOWS
($ in thousands)
(UNAUDITED)
<TABLE>
<CAPTION>
For the Six Months Ended
June 30,
1999 1998
-------- --------
<S> <C> <C>
Cash Flows from Operating Activities:
Net income $ 15,656 $ 5,997
Adjustment to reconcile net income to net cash
provided by operating activities:
Amortization of original issue discount and premium 27,747 24,578
Depreciation and amortization 15,109 11,324
Increase in restricted cash (368) (4,297)
Decrease in accounts receivable 2,171 7,453
Decrease in prepaid expenses 345 90
Increase in accrued rent (20,437) (19,388)
(Decrease) increase in accounts payable, accrued expenses
and tenant security deposits payable (3,090) 6,812
Decrease in accrued interest payable (139) (2,604)
-------- --------
Net cash provided by operating activities 36,994 29,965
-------- --------
Cash Flows from Investing Activities:
Additions to building and improvements (17,105) (8,713)
Additions to tenant improvements (11,428) (10,056)
Additions to furniture, fixtures and equipment (289) (317)
Additions to deferred costs (9,015) (8,371)
-------- --------
Net cash used in investing activities (37,837) (27,457)
-------- --------
Cash Flows from Financing Activities:
Proceeds from NationsBank loans 30,000 30,000
Payment of deferred financing fees (1,783) --
Repayment of NationsBank loans (12,500) --
-------- --------
Net cash provided by financing activities 15,717 30,000
-------- --------
Increase in cash and cash equivalents 14,874 32,508
Cash and cash equivalents at beginning of period 31,270 27,517
-------- --------
Cash and cash equivalents at end of period $ 46,144 $ 60,025
======== ========
</TABLE>
SEE NOTES TO THE FINANCIAL STATEMENTS
3
<PAGE> 6
RCPI TRUST
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
1. FINANCIAL STATEMENTS
The balance sheet as of June 30, 1999, the statements of operations for
the quarters ended and the six months ended June 30, 1999 and 1998 and
the statements of cash flows for the six months ended June 30, 1999 and
1998 are unaudited, but in the opinion of the Company's management
reflect all adjustments, consisting only of normal recurring
adjustments, which are necessary to present fairly the financial
condition and results of operations at those dates and for those
periods. The results of operations for the interim periods are not
necessarily indicative of results for a full year. It is suggested that
these financial statements be read in conjunction with the audited
financial statements and notes thereto included in the Company's Form
10-K for the year ended December 31, 1998.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Deferred Costs
The Company adopted the provisions of Statement of Position 98-5
"Reporting on the Costs of Start-up Activities" effective January 1,
1999. The effect of adopting this statement was an additional charge of
$1.34 million related to the write off of the unamortized balance of
organizational costs and is included as a component of depreciation and
amortization in the accompanying statement of operations for the six
months ended June 30, 1999.
3. DEBT
NationsBank Credit Facility
On May 16, 1997, the Company entered into a Credit Agreement (the
"Original NationsBank Credit Agreement") with NationsBank of Texas, N.A.
("NationsBank"), pursuant to which NationsBank agreed to make term loans
(the "Original NationsBank Loans") to the Company in an aggregate
principal amount of up to $100 million. The maximum amount of the
Original NationsBank Loans which may be outstanding at any time reduces
quarterly commencing March 31, 1998 through the May 16, 2000 maturity
date. Subject to the satisfaction of certain conditions precedent, the
Company may extend the maturity date of the Original NationsBank Loans
to December 31, 2000 and such loans will bear interest based on LIBOR
plus 2.125%. As of December 31, 1998, the outstanding balance on the
Original NationsBank Loans was $80 million. On March 31, 1999 and on
June 30, 1999, the Company repaid $6.25 million bringing the outstanding
balance of the Original NationsBank Loans down to $67.5 million.
New NationsBank Credit Facility
The Company entered into a second Credit Agreement (the "New NationsBank
Credit Agreement") as of April 12, 1999, with NationsBank, pursuant to
which NationsBank agreed to make additional term loans (the "New
NationsBank Loans") to the Company in an aggregate principal amount of
up to $47 million. NationsBank made the first term loan to the Company,
under the New NationsBank Credit Agreement,
4
<PAGE> 7
RCPI TRUST
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
in the principal amount of $5 million on April 28, 1999. A second term
loan was made to the Company on June 28, 1999 in the principal amount of
$25 million. Similar to the Original NationsBank Credit Agreement, the
Company may elect interest periods based on one, two, three, or six month
LIBOR. Interest accrues at LIBOR plus 2.50% and is payable at the end of
each interest period. The maximum amount of the New NationsBank Loans
which may be outstanding at any time reduces quarterly commencing
December 31, 1999 through the May 16, 2000 maturity date. Subject to the
satisfaction of certain conditions precedent, the Company may extend the
maturity date of the New NationsBank Loans to December 31, 2000 and such
loans will bear interest based on LIBOR plus 2.50%.
In connection with the New NationsBank Credit Agreement, the Company
purchased an interest rate protection agreement from Goldman Sachs
Capital Markets L.P. capping LIBOR at 7.85%.
As a condition to making the New NationsBank Loans, the holder of the 14%
Debentures and the Company amended the intercreditor and subordination
agreement, executed as part of the Original NationsBank Loans (as defined
in the December 31, 1998 Form 10-K) to include the New NationsBank Loans
(the Original NationsBank Loans and the New NationsBank Loans are
hereafter referred to as the ("NationsBank Loans"). The intercreditor and
subordination agreement provides that the holder of the 14% Debentures
agrees (i) to subordinate payment on the 14% Debentures to the
NationsBank Loans, (ii) that in certain circumstances interest would
accrue but not be paid on the 14% Debentures, and (iii) that NationsBank
may take certain actions on behalf of the holder of the 14% Debentures
upon the occurrence of certain bankruptcy related events in respect of
the Company.
In addition, certain members of the Investor Group (as defined in the
December 31, 1998 Form 10-K) and/or certain of their affiliates entered
into a Limited Recourse Agreement dated as of April 12, 1999, in favor of
NationsBank.
4. RELATED PARTY TRANSACTIONS
During 1999, the Company paid a $470,000 investment banking fee to
Goldman, Sachs & Co., an affiliate of one member of the investor group,
related to the closing of the New NationsBank Loans (see Note 3). This
fee was capitalized as a component of deferred costs in the accompanying
1999 balance sheet.
5
<PAGE> 8
RCPI TRUST
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Liquidity and Capital Resources - RCPI Trust
Land and Building
At June 30, 1999, the Property, exclusive of 1.5 million square feet owned
directly by the National Broadcasting Company, Inc. and NBC Trust No. 1996A, was
approximately 92.5% occupied. Occupancy rates for the Property at various dates
are presented in the following table:
<TABLE>
<S> <C> <C> <C>
March 31, 1999 92.4% June 30, 1998 88.1%
December 31, 1998 93.0% March 31, 1998 88.1%
September 30, 1998 89.6% December 31, 1997 86.7%
</TABLE>
The following table shows selected lease expirations and vacancy of the Property
as of June 30, 1999. Area, as presented below and discussed above, is measured
based on standards promulgated by the New York Real Estate Board in 1987. Lease
turnover could offer an opportunity to increase the revenue of the Property or
might have a negative impact on the Property's revenue. Actual renewal and
rental income will be affected significantly by market conditions at the time
and by the terms at which the Company can then lease space.
<TABLE>
<CAPTION>
Square Feet Percent
Year Expiring Expiring
- ---- ----------- --------
<S> <C> <C>
Vacant 444,664 7.5%
1999 120,961 2.0%
2000 425,077 7.2%
2001 134,292 2.3%
2002 228,132 3.9%
2003 181,773 3.1%
Thereafter 4,364,798 74.0%
--------- -----
Total 5,899,697 100.0%
========= =====
</TABLE>
Debt
The Zero Coupon Convertible Debentures (the "Zero Coupons") due December 31,
2000 accrete to a face value of approximately $586.2 million at an effective
annual interest rate of 12.10%. At June 30, 1999 and December 31, 1998, the
carrying value of the Zero Coupons, net of unamortized discount, was
approximately $489.3 million and $460.8 million, respectively.
The 14% Debentures have a principal balance of $75 million and mature on
December 31, 2007. At the time the Property was acquired by the Company, the
carrying value of the 14% Debentures was adjusted to reflect their estimated
fair value at that date, resulting in a premium. The effective interest rate,
which is net of the amortization of this premium, is approximately 9.03%.
Interest payments are made semi-annually on July 31
6
<PAGE> 9
RCPI TRUST
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
and January 31. As of June 30, 1999 and December 31, 1998, the carrying value of
the 14% Debentures was approximately $97.3 million and $98.1 million,
respectively.
As of June 30, 1999, the Original NationsBank Loans have an aggregate principal
balance of $67.5 million and mature on May 16, 2000. The Company may elect
interest periods based on one, two, three or six month LIBOR rates. Interest
accrues at LIBOR plus 1.75% and is payable monthly in arrears.
As of June 30, 1999, the New NationsBank Loans have an aggregate principal
balance of $30 million and mature on May 16, 2000. The Company may elect
interest periods based on one, two, three or six month LIBOR rates. Interest
accrues at LIBOR plus 2.50% and is payable monthly in arrears.
Cash Flow
During the six months ended June 30, 1999, the Company received cash flows of
approximately $37.0 million from operations of the Property. The Company used
part of this cash flow from operations and draws on the New NationsBank Credit
Agreement totaling $30 million to fund tenant improvements, building
improvements and other leasing costs totaling approximately $37.8 million. The
Company also made two $6.25 million amortization payments on the Original
NationsBank Loans on March 31, 1999 and on June 30, 1999 from its cash flow from
operations.
The Company believes that its current cash balance and future cash flows from
operations, together with its expected borrowings in an amount currently
believed not to exceed $17 million, will be sufficient to fund its capital and
debt service requirements for the foreseeable future.
Beginning in January 1999, the Company commenced a retail redevelopment project
which includes, among other things, the restoration of the Channel Gardens,
repaving of Rockefeller Plaza, refurbishment of the common area in the concourse
under 30 Rockefeller Plaza and the completion of numerous new retail stores.
Such work is scheduled to be finished by the end of 1999.
Inflation
Inflation and changing prices during the current period did not significantly
affect the markets in which the Company conducts its business. In view of the
moderate rate of inflation, its impact on the Company's business has not been
significant.
RESULTS OF OPERATIONS - RCPI TRUST
Base rent for the quarter and the six months ended June 30, 1999 increased
approximately $10.2 million and $18.9 million, respectively, from the quarter
and the six months ended June 30, 1998 and is due mainly to higher rental rates
on new leases, which did not exist in the prior year. Additionally, the Company
signed several new retail leases which had lease and rent commencement dates
after the first six months of 1998 and the occupancy level increased to 92.5% as
of June 30, 1999, as compared to 88.1% as of June 30, 1998.
7
<PAGE> 10
RCPI TRUST
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Interest and other income decreased for the quarter and the six months ending
June 30, 1999, as compared to the quarter and the six months ending June 30,
1998, primarily due to lower interest income. The decrease in interest income
was due to a lower average cash balance during both the quarter ended March 31,
1999 and for the majority of the quarter ended June 30, 1999.
Interest expense has increased by approximately $1.4 million and $3.6 million
for the quarter and the six months ended June 30, 1999, respectively, as
compared to the quarter and the six months ended June 30, 1998, primarily due to
the increase in the outstanding debt balance. Total outstanding debt as of June
30, 1999 was approximately $684.1 million, as compared to $617.8 million as of
June 30, 1998. The increase is due primarily to accretion of the Zero Coupon
Debentures and additional draws under the NationsBank credit facilities which
have increased by $17.5 million since December 31, 1998.
The increase in depreciation and amortization expense of approximately $1.4
million and $3.8 million for the quarter and the six months ended June 30, 1999,
respectively, as compared to the quarter and the six months ended June 30, 1998,
was primarily due to additional capital projects at the Property being placed
into service since June 30, 1998 and due to additional tenant improvements and
leasing commissions expended as a result of increased leasing activity.
Additionally, the increase in amortization expense was due to the adoption of
the provisions of SOP 98-5 "Reporting on the Costs of Start-Up Activities"
effective January 1, 1999. This required the write-off of the Company's
remaining organizational costs of approximately $1.34 million.
8
<PAGE> 11
RCPI TRUST
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company has no material exposure to market risk sensitive instruments other
than the NationsBank Loans. The market risk associated with this floating rate
loan is minimized by an interest rate protection agreement which caps out the
floating rate on the Original NationsBank Loans at 7.69% during the first two
years of the initial term and 8.69% thereafter, including the extension period.
The New NationsBank Loans are capped at 7.85% by an interest rate protection
agreement during the entire term. The Company enters into derivative instruments
only to hedge its exposure to changes in interest rates on some of its
outstanding indebtedness, not for speculative or trading purposes, and does not
enter into leveraged derivatives. See Note 6 to the Financial Statements
included in the Company's Form 10-K for the year ended December 31, 1998 for
information about the Company's interest rate protection agreement with respect
to the Original NationsBank Loans.
9
<PAGE> 12
RCPI TRUST
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
There has been no material change to the status of existing litigation as
reported in the Company's Form 10-K for the year ended December 31, 1998.
10
<PAGE> 13
ITEM 6. (a) EXHIBITS
(3.1) Certificate of Trust of RCPI Trust, dated March 22,
1996 is incorporated by reference to Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1996.
(4.1) Amended and Restated Debenture Purchase Agreement
dated as of July 17, 1996 between the Company and WHRC
Real Estate Limited Partnership is incorporated by
reference to exhibit 4.1 to the Company's Annual
Report on Form 10-K for the year ended December 31,
1996 (the "1996 10-K").
(4.2) Indenture dated as of September 15, 1985 between the
Predecessor and Manufacturers Hanover Trust Company,
as Trustee, including the forms of Current Coupon
Convertible Debenture, Zero Coupon Convertible
Debenture and Floating Rate Note, is incorporated by
reference to Exhibit 4 to the Predecessor's Quarterly
Report on Form 10-Q for the period ended September 30,
1985.
(4.3) First Supplemental Indenture dated as of December 15,
1985 between the Predecessor and the Trustee, is
incorporated by reference to the Predecessor's Annual
Report on Form 10-K for the year ended December 31,
1985.
(4.4) Second Supplemental Indenture dated as of July 10,
1996 between the Company and the United States Trust
Company of New York, as Trustee is incorporated by
reference to exhibit 4.4 to the 1996 10-K.
(4.5) Instrument of Resignation, Appointment and Acceptance
dated as of December 1, 1993 among the Predecessor,
Chemical Bank, successor by merger to Manufacturers
Hanover Trust Company, and United States Trust Company
of New York is incorporated by reference to Exhibit
4.21 to the Predecessor's Annual Report on Form 10-K
for the year ended December 31, 1993.
(10.1) Amended and Restated Loan Agreement dated as of July
17, 1996 among the Company, the lenders parties
thereto and GSMC, as agent, is incorporated by
reference to Exhibit 10.1 to the 1996 10-K.
(10.2) Guarantee dated July 17, 1996 by Whitehall Street Real
Estate Limited Partnership V, Exor Group S.A., Tishman
Speyer Crown Equities, David Rockefeller, Troutlet
Investments Corporation, Gribble Investments (Tortola)
BVI, Inc. and Weevil Investments (Tortola) BVI, Inc.,
as guarantors in favor of GSMC, as agent and lender,
is incorporated by reference to Exhibit 10.2 to the
1996 10-K.
(10.3) Agreement and Plan of Merger dated as of November 7,
1995 among the Predecessor, RCPI Holdings Inc., RCPI
Merger Inc., Whitehall Street Real Estate Limited
Partnership V, Rockprop, L.L.C., David Rockefeller,
Exor Group S.A. and Troutlet Investments Corporation
is incorporated by reference to Exhibit 10.28 to the
Predecessor's Current Report on Form 8-K dated
November 13, 1995.
11
<PAGE> 14
ITEM 6. (a) EXHIBITS (Cont'd)
(10.4) Amendment No. 1 dated as of February 12, 1996 to the
Agreement and Plan of Merger dated as of November 7,
1995 among the Predecessor, RCPI Holdings Inc., RCPI
Merger Inc., Whitehall Street Real Estate Limited
Partnership V, Rockprop, L.L.C., David Rockefeller,
Exor Group S.A. and Troutlet Investments Corporation
is incorporated by reference to Exhibit 10.31 to the
Predecessor's Current Report on Form 8-K dated
February 22, 1996.
(10.5) Amendment No. 2 to the Agreement and Plan of Merger,
dated as of April 25, 1996 is incorporated herein by
reference to the Predecessor's Current Report on Form
8-K, filed on April 25, 1996.
(10.6) Amendment No. 3 to the Agreement and Plan of Merger,
dated as of May 29, 1996 is incorporated herein by
reference to the Predecessor's Current Report on Form
8-K, filed on May 29, 1996.
(10.7) Amendment No. 4 to the Agreement and Plan of Merger,
dated as of June 30, 1996 is incorporated herein by
reference to the Predecessor's Current Report on Form
8-K, filed on July 1, 1996.
(10.8) Credit Agreement, dated as of May 16, 1997, between
the Company and NationsBank of Texas, N.A. is
incorporated by reference to Exhibit 4.6 to the
Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1997.
(10.9) Intercreditor and Subordination Agreement, dated as of
May 16, 1997, between the Company and WHRC Real Estate
Limited Partnership is incorporated by reference to
Exhibit 4.7 to the Company's Quarterly Report on Form
10-Q for the period ended June 30, 1997.
(10.10) Limited Recourse Agreement, dated as of May 16, 1997,
is incorporated by reference to Exhibit 4.8 to the
Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1997.
(10.11) Amendment to the May 16, 1997 Credit Agreement, dated
as of April 12, 1999, between the Company and
NationsBank of Texas, N.A.
(10.12) Credit Agreement, dated as of April 12, 1999, between
the Company and NationsBank of Texas, N.A.
(10.13) Amended and Restated Intercreditor and Subordination
Agreement, dated as of April 12, 1999, between the
Company and WHRC Real Estate Limited Partnership.
(27.1) Company's Financial Data Schedule.
(b) REPORTS ON FORM 8-K
No Current Reports on Form 8-K have been filed during the last
fiscal quarter.
12
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RCPI TRUST
Date: August 13, 1999 By: /s/ David Augarten
-----------------------------
David Augarten
Vice President
(Principal Financial Officer)
13
<PAGE> 1
EXECUTION COPY
AMENDMENT
AMENDMENT, dated as of April 12, 1999 (this "Amendment"), among RCPI
TRUST, a Delaware business trust (the "Borrower"), the lenders parties hereto
and NATIONSBANK, N.A., a national banking association (successor by merger to
NationsBank of Texas, N.A.), as agent (in such capacity, the "Agent") for the
Lenders, to the Existing Credit Agreement (as defined below). Capitalized terms
used but not otherwise defined herein shall have the meanings given to them in
the Existing Credit Agreement.
RECITALS
The Borrower, the lenders from time to time parties hereto (the
"Lenders") and the Agent are parties to that certain Credit Agreement, dated as
of May 16, 1997 (as previously amended and as otherwise amended, supplemented or
otherwise modified, the "Existing Credit Agreement").
The Borrower has requested that the Lenders amend the Existing Credit
Agreement to, among other things, allow the Borrower to enter into an additional
credit agreement, dated as of the date hereof, among the Borrower, the lenders
from time to time parties thereto and NationsBank, N.A., as agent (as amended,
supplemented or otherwise modified, the "Additional Credit Agreement"). Subject
to the terms and conditions of this Amendment, the Lenders and the Agent have
agreed to so amend the Existing Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Lenders and the Agent hereby agree as follows:
1. Amendment. The Existing Credit Agreement is hereby amended as
follows:
(a) Section 1.1 is hereby amended by adding the following
definitions:
"'Additional Credit Agreement': that certain Credit Agreement, dated
April 12, 1999, among the Borrower, the lenders from time to time
parties thereto, and NationsBank, N.A., as agent for the lenders, as
amended, supplemented or otherwise modified from time to time."
"'Additional Loan Documents': the "Loan Documents", as defined under
the Additional Credit Agreement.
"'Additional Loans': the loans made under the Additional Credit
Agreement."
(b) Section 1.1 is hereby amended by deleting from the definition of
"Investors" the phrase "Derrycroft Enterprises, Inc., a Delaware
corporation; FIMA
<PAGE> 2
Finance Management Inc., a British Virgin Islands corporation;" and
substituting in lieu thereof the phrase "EXOR Group, a Luxembourg investment
holding company; EXOR America Inc., a Delaware corporation;".
(c) Section 3.8(d) is hereby amended by inserting the words "Loan
Documents, the Additional" after the word "Leases,".
(d) Section 5.2(g) is hereby amended by deleting the reference to
"this Section 5.3(g)" and substituting in lieu thereof the words "this
Section 5.2(g)".
(e) Section 5.6(b) is hereby amended by deleting such clause (b) and
substituting in lieu thereof a new clause (b) to read in its entirety as
follows:
"(b) In the event that any portion of any Property is so damaged,
destroyed or lost, and such damage, destruction or loss is covered,
in whole or in part, by insurance described in Section 5.5, then,
(i) if no Event of Default has occurred and is continuing and the
amount of Net Proceeds received (or reasonably anticipated by the
Borrower to be received) in connection with such damage, destruction
or loss is less than $50,000,000, then the Borrower may retain such
Net Proceeds and, at the Borrower's option, apply such Net Proceeds
to the restoration, replacement or rebuilding, in whole or in part,
of the portion of such Property so damaged, destroyed or lost or to
the prepayment of the Loans and, to the extent that the Loans have
been paid in full, the Additional Loans, provided, however, that the
Borrower shall be required to apply such Net Proceeds to the
prepayment of the Loans (x) if the Borrower shall have failed to
commence the restoration, replacement or rebuilding, in whole or in
part, of the portion of such Property so damaged, destroyed or lost
within six months following the receipt of such Net Proceeds or (y)
if the Borrower shall cease to be diligently continuing such
restoration, replacement or rebuilding, in the case of each of (x)
and (y), subject to force majeure; or (ii) if no Event of Default
has occurred and is continuing and the amount of Net Proceeds
received (or reasonably anticipated by the Borrower to be received)
in connection with such damage, destruction or loss is $50,000,000
or greater, then the Borrower shall cause such Net Proceeds to be
deposited in a segregated account at a bank (which need not be a
Lender) selected by the Borrower, and the Borrower hereby covenants
and agrees that such Net Proceeds shall be withdrawn from such
segregated account and applied solely for the purpose of, and in the
amounts necessary to, make required payments in connection with the
restoration, replacement or rebuilding, in whole or in part, of the
portion of such Property so damaged, destroyed or lost or to the
prepayment of the Loans and, to the extent the Loans have been paid
in full, the Additional Loans, provided, however, that the Borrower
shall be required to apply such Net Proceeds to the prepayment of
the Loans (x) if the Borrower shall have failed to commence the
restoration, replacement or rebuilding, in whole or in part, of the
portion of such Property so damaged, destroyed or lost within six
months following the receipt of such Net Proceeds or (y) if the
Borrower shall cease to
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<PAGE> 3
be diligently continuing such restoration, replacement or
rebuilding, in the case of each of (x) and (y), subject to force
majeure."
(f) Section 5.6(d) is hereby amended by deleting such clause (d) and
substituting in lieu thereof a new clause (d) to read in its entirety as
follows:
"(d) In the event of any condemnation of any Property or any
part or interest therein or any similar event with respect thereto,
then, (i) if no Event of Default has occurred and is continuing and
the amount of Net Proceeds received (or reasonably anticipated by
the Borrower to be received) in connection with such condemnation or
similar event is less than $50,000,000, then the Borrower may retain
such Net Proceeds and, at the Borrower's option, apply such Net
Proceeds to the replacement, in whole or in part, of such Property
or such part thereof so condemned or to the prepayment of the Loans
and, to the extent the Loans have been paid in full, the Additional
Loans, provided, however, that the Borrower shall be required to
apply such Net Proceeds to the prepayment of the Loans (x) if the
Borrower shall have failed to commence the replacement of such
Property or such part thereof so condemned within six months
following the receipt of such Net Proceeds or (y) if the Borrower
shall cease to be diligently continuing such replacement, in the
case of each of (x) and (y), subject to force majeure; or (ii) if no
Event of Default has occurred and is continuing and the amount of
Net Proceeds received (or reasonably anticipated by the Borrower to
be received) in connection with such condemnation or similar event
is $50,000,000 or greater, then the Borrower shall cause such Net
Proceeds to be deposited in a segregated account at a bank (which
need not be a Lender) selected by the Borrower, and the Borrower
hereby covenants and agrees that such Net Proceeds shall be
withdrawn from such segregated account and applied solely for the
purpose of, and in the amounts necessary to, make required payments
in connection with the replacement of such Property or such part
thereof so condemned or to the prepayment of the Loans and, to the
extent the Loans have been paid in full, the Additional Loans,
provided, however, that the Borrower shall be required to apply such
Net Proceeds to the prepayment of the Loans (x) if the Borrower
shall have failed to commence the replacement of such Property or
such part thereof so condemned within six months following the
receipt of such Net Proceeds or (y) if the Borrower shall cease to
be diligently continuing such replacement, in the case of each of
(x) and (y), subject to force majeure."
(g) Section 6 is hereby amended by deleting the words "directly or
indirectly" and substituting in lieu thereof the words "nor shall it permit
any of its subsidiaries to".
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<PAGE> 4
(h) Section 6.1(f) is hereby amended by deleting such clause (f) and
substituting in lieu thereof a new clause (f) to read in its entirety as
follows:
"(f) the Hedging Obligations under this Agreement required
pursuant to Section 4.1(r) hereof and under the Additional Credit
Agreement".
(i) Section 6.1(g) is hereby amended by deleting the word "and"
following the semicolon at the end of the clause.
(j) Section 6.1(h) is hereby amended by deleting the period at the
end of the clause and substituting in lieu thereof "; and".
(k) Section 6.1 is hereby amended by adding a new clause (i) to read
in its entirety as follows:
"(i) Indebtedness of the Borrower under the Additional Credit
Agreement."
(l) Section 6.2(f) is hereby amended by deleting the word "and"
following the semicolon at the end of the clause.
(m) Section 6.2 (g) is hereby amended by deleting the period at the
end of the clause and substituting in lieu thereof "; and".
(n) Section 6.2 is hereby amended by adding a new clause (h) to read
in its entirety as follows:
"(h) Liens arising from tenant improvements; provided that such
Liens are either bonded or released within thirty (30) days and the
aggregate amount secured by such Liens does not exceed $500,000 at
any one time."
(o) Section 6.5 is hereby amended by deleting subclause (ii) of
clause (a) of such Section and substituting in lieu thereof a new subclause
(ii) of clause (a) to read in its entirety as follows:
"(ii) (A) such Property (or portion thereof) is sold for a net
sale price not less than the minimum net sale price (or ratable
portion thereof, in the case of a Release of a portion of a
Property) for such Property specified on Schedule 1.1(a), (B) not
less than 30% of the Net Proceeds from the sale of such Property or
portion thereof is paid to the Agent in cash for the benefit of the
Lenders concurrently with such Release, such amount of Net Proceeds
to be applied as a prepayment of the Loans and a reduction of the
Commitments pursuant to Section 2.11(a), (C) no Default under
Section 7(a) or Event of Default has occurred and is continuing or
would result therefrom, and (D) concurrently with such Release the
Borrower prepays Loans and/or Additional Loans and/or prepays,
redeems or repurchases Zeros, in an aggregate amount so that,
immediately after giving effect to such Release, the prepayment of
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<PAGE> 5
the Loans required in connection therewith pursuant to Section
2.11(a) and such prepayment, redemption or repurchase of Loans, the
Additional Loans and/or Zeros, the Debt to Value Ratio shall be
equal to or less than 72.5%, provided, that in the event that the
Loans outstanding immediately prior to the prepayment required
pursuant to subclause (B) of this Section 6.5(a)(ii) hereof would be
paid in full and the Commitments would be terminated as a result of
such prepayment, then, so long as the Loans are so repaid in full
and the Commitments are so terminated, the Borrower shall not be
required to make prepayments, redemptions or repurchases pursuant to
this Section 6.5(a)(ii) in an aggregate amount in excess of the
amount required to repay the Loans in full;"
(p) Section 6.6(c) is hereby amended by deleting clause (i) of such
Section and substituting in lieu thereof a new clause (i) to read in its
entirety as follows:
"(i) the Borrower shall have made all prepayments required to be
made pursuant to Section 2.11 hereof and Section 2.11 of the
Additional Credit Agreement in respect of such Release, and"
(q) Section 6.9 is hereby amended by adding the phrase ", may repay
Indebtedness under the Additional Credit Agreement" after the word "Zeros"
in the 'except' clause to subsection (a) thereof.
(r) Section 6.9(b) is hereby amended by inserting the words "(except
for the Amendment to the 14% Debenture Purchase Agreement to be dated April
12, 1999)" after the words "14% Debentures".
(s) Section 6.12 is hereby amended by deleting the word "and"
following the comma in clause (c) and adding a new clause (e) following the
parenthetical phrase to read in its entirety as follows:
"and (e) the Additional Credit Agreement,"
(t) Section 7(f) is hereby amended by deleting clause (i) of such
Section and substituting in lieu thereof a new clause (i) to read in its
entirety as follows:
"(i) Any "Event of Default" as defined in the 14% Debentures
Purchase Agreement, any "Event of Default" as defined in the Zeros
Indenture, or any "Event of Default" as defined in the Additional
Credit Agreement shall occur, or"
(u) Section 7.1(k) is hereby amended by inserting the words "or the
Key Principals" after the words "any Key Principals" in clause (iii) thereof
and by inserting the words "(or such transferee as contemplated by (iii)
above)" after the word "Investors" in clause (v) thereof.
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<PAGE> 6
(v) Section 9.2 is hereby amended by deleting the address of
Cadwalader, Wickersham & Taft from such Section and substituting in lieu
thereof the following address:
"227 West Trade Street, Suite 2400
Charlotte, North Carolina 28202
Attention: Christopher M. McDermott, Esq.
Telephone: 704-348-5100
Facsimile: 704-348-5200"
2. Waiver. The Lenders parties hereto hereby waive any Default or Event
of Default occurring as a result of the transfer by FIMA Finance Management Inc.
of its interest in Holdings to EXOR Group whether pursuant to Section 7(k)(iii)
of the Existing Credit Agreement or otherwise.
3. Approval. The Agent hereby approves of the Major Space Lease entered
into between Borrower and Lazard Freres & Co., LLC, dated December 14, 1998 (the
"Lazard Lease"), a copy of which has been previously furnished to the Agent. The
Lenders parties hereto hereby waive any Default or Event of Default now or
hereinafter occurring as a result of the entering into the Lazard Lease.
4. Effectiveness. This Amendment shall become effective upon (a)
execution and delivery by the Borrower and the Required Lenders and (b) the
execution and delivery of the Additional Credit Agreement by the parties
thereto.
5. No Other Amendments. Except as expressly amended and waived hereby,
the Credit Agreement, the Notes and the other Loan Documents shall remain in
full force and effect in accordance with their respective terms, without any
waiver, amendment or modification of any provision thereof.
6. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Expenses. The Borrower agrees to pay and reimburse the Agent for all
of the out-of-pocket costs and expenses incurred by the Agent in connection with
the preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of Cadwalader, Wickersham &
Taft, counsel to the Agent.
8. Applicable Law. this amendment shall be governed by, and construed
and interpreted in accordance with, the law of the state of New York.
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<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
RCPI TRUST, as Borrower
By: _______________________________
Name:
Title:
NATIONSBANK, N.A., as Agent
By: _______________________________
Name:
Title:
<PAGE> 8
The undersigned Lenders hereby consent and agree to the foregoing
Amendment:
ORIX USA CORPORATION
By: _______________________________
Name:
Title:
BANKBOSTON, N.A.
By: _______________________________
Name:
Title:
MASS MUTUAL
By: _______________________________
Name:
Title:
<PAGE> 1
EXECUTION COPY
================================================================================
CREDIT AGREEMENT
AMONG
RCPI TRUST,
BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
NATIONSBANK, N.A.,
AS AGENT,
AND
BANKBOSTON, N.A.,
AS CO-AGENT
DATED AS OF APRIL 12, 1999
WITH
NATIONSBANC MONTGOMERY SECURITIES, LLC
AS SOLE LEAD ARRANGER AND BOOK MANAGER
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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SECTION 1. DEFINITIONS
1.1 Defined Terms .............................................................................. 1
1.2 Other Definitional Provisions .............................................................. 20
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments ................................................................................ 20
2.2 Notes ...................................................................................... 21
2.3 Procedure for Borrowing .................................................................... 21
2.4 [Intentionally Omitted] .................................................................... 22
2.5 Termination or Reduction of Commitments .................................................... 22
2.6 Extension of Maturity Date ................................................................. 22
2.7 Interest Rates and Payment Dates ........................................................... 23
2.8 Conversion and Continuation Options ........................................................ 23
2.9 Minimum Amounts and Maximum Number of Tranches ............................................. 24
2.10 Optional Prepayments ....................................................................... 24
2.11 Mandatory Prepayments ...................................................................... 24
2.12 Computation of Interest and Fees ........................................................... 26
2.13 Inability to Determine Interest Rate ....................................................... 26
2.14 Pro Rata Treatment and Payments ............................................................ 27
2.15 Illegality ................................................................................. 27
2.16 Requirements of Law ........................................................................ 28
2.17 Taxes ...................................................................................... 29
2.18 Indemnity .................................................................................. 30
2.19 Lending Offices; Change of Lending Office .................................................. 31
2.20 Certificates, Etc .......................................................................... 31
2.21 Replacement of Lenders ..................................................................... 31
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 Financial Condition ........................................................................ 32
3.2 No Change .................................................................................. 33
3.3 Existence; Compliance with Law ............................................................. 33
3.4 Power; Authorization; Enforceable Obligations .............................................. 33
3.5 No Legal Bar ............................................................................... 34
3.6 No Material Litigation ..................................................................... 34
3.7 No Default ................................................................................. 35
3.8 Ownership of Property; Condition of Title; Leases Major
Space Leases and Major Retail Leases; Liens; Other Agreements ......................................... 35
3.9 Intellectual Property ...................................................................... 37
3.10 Taxes ...................................................................................... 37
3.11 Federal Regulations ........................................................................ 37
3.12 ERISA ...................................................................................... 37
3.13 Investment Company Act; Other Regulations .................................................. 38
3.14 Subsidiaries ............................................................................... 38
3.15 Accuracy and Completeness of Information ................................................... 38
</TABLE>
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3.16 Labor Relations ............................................................................ 38
3.17 Insurance .................................................................................. 39
3.18 Solvency ................................................................................... 39
3.19 Purpose of Loans ........................................................................... 39
3.20 Environmental Matters ...................................................................... 39
3.21 Obligation to Convey ....................................................................... 41
3.22 Certain Existing Indebtedness .............................................................. 41
3.23 Year 2000 .................................................................................. 41
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans ................................................................ 41
4.2 Conditions to Each Loan .................................................................... 44
SECTION 5. AFFIRMATIVE COVENANTS
5.1 Financial Statements ....................................................................... 45
5.2 Certificates; Other Information ............................................................ 46
5.3 Payment of Obligations ..................................................................... 48
5.4 Conduct of Business and Maintenance of Existence ........................................... 48
5.5 Maintenance of Property; Insurance ......................................................... 48
5.6 Damage, Destruction, Condemnation .......................................................... 51
5.7 Inspection of Property; Books and Records; Discussions ..................................... 53
5.8 Notices .................................................................................... 53
5.9 Environmental Laws ......................................................................... 55
5.10 Property Manager ........................................................................... 55
5.11 Condominium Documents; Expense Sharing Agreement ........................................... 55
5.12 Asbestos ................................................................................... 55
5.13 Estoppel Certificates ...................................................................... 56
5.14 Year 2000 Procedures ....................................................................... 56
SECTION 6. NEGATIVE COVENANTS
6.1 Limitation on Indebtedness and Hedging Obligations ......................................... 56
6.2 Limitation on Liens ........................................................................ 57
6.3 Limitation on Guarantee Obligations ........................................................ 58
6.4 Limitation on Fundamental Changes .......................................................... 58
6.5 Limitation on Sale of Assets ............................................................... 58
6.6 Limitation on Restricted Payments .......................................................... 59
6.7 Limitation on Capital Expenditures ......................................................... 60
6.8 Limitation on Investments, Loans and Advances .............................................. 60
6.9 Limitation on Optional Payments and Modifications of Agreements ............................ 60
6.10 Limitation on Transactions with Affiliates ................................................. 61
6.11 Limitation on Changes in Fiscal Year ....................................................... 61
6.12 Limitation on Negative Pledge Clauses ...................................................... 61
6.13 Limitation on Lines of Business ............................................................ 61
6.14 Governing Documents ........................................................................ 61
6.15 Limitation on Subsidiary Formation ......................................................... 62
6.16 Limitation on Securities Issuances ......................................................... 62
6.17 Asbestos ................................................................................... 62
6.18 Alterations, Maintenance, Repairs, Waste ................................................... 62
6.19 Limitations on Leasing ..................................................................... 62
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SECTION 7. EVENTS OF DEFAULT
SECTION 8. THE AGENT
8.1 Appointment ................................................................................ 66
8.2 Delegation of Duties ....................................................................... 67
8.3 Exculpatory Provisions ..................................................................... 67
8.4 Reliance by Agent .......................................................................... 67
8.5 Notice of Default .......................................................................... 67
8.6 Non-Reliance on Agent and Other Lenders .................................................... 68
8.7 Indemnification ............................................................................ 68
8.8 Agent in Its Individual Capacity ........................................................... 69
8.9 Successor Agent ............................................................................ 69
8.10 Dealings with Agent ........................................................................ 69
8.11 Co-Agent ................................................................................... 69
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers ..................................................................... 69
9.2 Notices .................................................................................... 70
9.3 No Waiver; Cumulative Remedies ............................................................. 72
9.4 Survival of Representations and Warranties ................................................. 72
9.5 Payment of Expenses and Taxes .............................................................. 72
9.6 Successors and Assigns; Participations and Assignments ..................................... 73
9.7 Adjustments; Set-off ....................................................................... 75
9.8 Counterparts ............................................................................... 76
9.9 Severability ............................................................................... 76
9.10 Integration ................................................................................ 76
9.11 GOVERNING LAW .............................................................................. 76
9.12 Submission To Jurisdiction; Waivers ........................................................ 76
9.13 Acknowledgments ............................................................................ 77
9.14 WAIVERS OF JURY TRIAL ...................................................................... 77
9.15 Confidentiality ............................................................................ 78
9.16 Recourse ................................................................................... 78
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SCHEDULES
Schedule I Lenders, Commitments, and Lending Offices
Schedule 1.1(a) Properties and Allocated Loan Amounts
Schedule 1.1(b) Capital Expenditures Adjustments
Schedule 2.2 Scheduled Loan Repayments
Schedule 3.4(b) Permitting and Regulatory Matters
Schedule 3.6 Certain Litigation
Schedule 3.8(a) Permitted Encumbrances
Schedule 3.8(c) Lease Defaults
Schedule 3.8(d) Service Contracts
Schedule 3.8(e) Tax Assessments
Schedule 3.8(g) Amendments to Condominium
Schedule 3.8(h) Ground Lease Defaults
Schedule 3.8(i) Tenant Improvement Obligations
Schedule 3.8(m) Leasing Brokerage Contracts
Schedule 3.14 Subsidiaries
Schedule 3.20 Environmental Matters
Schedule 4.1(b) Scheduled Leases
Schedule 6.1 Existing Indebtedness and Hedging Obligations
Schedule 6.3 Existing Guarantee Obligations
Schedule 6.10 Certain Affiliate Transactions
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Tax Status Certificate
Exhibit C Form of Initial Borrowing Certificate
Exhibit D Form of Opinion of Sullivan & Cromwell
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Amendment to Existing Credit Agreement
Exhibit G Form of Eligible Assignee Certificate
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CREDIT AGREEMENT, dated as of April 12, 1999, among RCPI TRUST, a
Delaware business trust (the "Borrower"), the lenders from time to time parties
to this Agreement (the "Lenders"), NATIONSBANK, N.A., a national banking
association, as agent for the Lenders hereunder and BANKBOSTON, N.A., a national
banking association, as co-agent for the Lenders hereunder.
RECITALS
The Borrower was formed to take title to certain real and personal
property constituting a portion of the twelve buildings in New York City known
as Rockefeller Center, pursuant to the Second Amended Joint Plan of
Reorganization, confirmed on May 29, 1996, in the bankruptcy cases of RCP
Associates, a New York limited partnership, and Rockefeller Center Properties, a
New York general partnership. Pursuant to the Agreement and Plan of Merger,
dated as of November 7, 1995, as amended (the "Merger Agreement"), among
Rockefeller Center Properties, Inc. ("Old RCPI"), predecessor by merger to
Rockefeller Center Properties, Inc., a Delaware corporation, the surviving
entity of the merger of Old RCPI with and into RCPI Holdings, Inc., a Delaware
corporation (such surviving entity, "Holdings" or "RCPI"), RCPI Merger, Inc., a
Delaware corporation ("RCPI Merger"), and certain investors party thereto, RCPI
Merger was merged with and into RCPI effective July 10, 1996, after giving
effect to which RCPI was a wholly-owned subsidiary of Holdings. Each of RCPI and
RCPI Investors LLC, a Delaware limited liability company (the "LLC"), are the
owners of approximately 50% in beneficial interest in the Borrower. The Borrower
has assumed substantially all of the liabilities of RCPI. Pursuant to the
Existing Senior Credit Agreement (as hereinafter defined), certain lenders have
made available a loan facility to the Borrower in an original aggregate
principal amount of $100,000,000, under which $80,000,000 aggregate principal
amount of loans is outstanding as of the date hereof, which will be reduced to
$73,750,000 on March 31, 1999. The Borrower has requested that each of the
Lenders make one or more term loans to the Borrower in one or more advances, in
an aggregate principal amount not to exceed $47,000,000, the proceeds of which
would be used to fund budgeted tenant work allowances and leasing commissions,
to fund capital improvements to the Properties, to fund scheduled amortization
payments under the Existing Senior Credit Agreement, and for other general
working capital purposes of the Borrower.
The Lenders are willing to make such term loans available to the
Borrower, but only on the terms, and subject to the conditions, set forth in
this Agreement.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
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<PAGE> 7
"Accelerated Amortization Payment": as defined in Section
2.11(e).
"Adjusted Debt Service Coverage Ratio": for any period, the Debt
Service Coverage Ratio for such period excluding, however, from the
calculation of such Debt Service Coverage Ratio any principal and
interest to be paid with respect to the Loans.
"Adjusted Net Operating Income": for any Test Period, Net
Operating Income for such period minus the Stabilized Capital
Expenditures Amount for such period.
"Affected Lender": as defined in Section 2.21.
"Affiliate": as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control"
of a Person (including, with its correlative meanings, "controlled by"
and "under common control with") means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or
(b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Agent": NationsBank, N.A., together with its affiliates, as the
arranger of the Commitments and as the agent for the Lenders under
this Agreement and the other Loan Documents. For purposes of
clarification, the Co-Agent shall not be deemed the "Agent" for any
purpose hereunder.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Air Rights": the excess, if any, of the maximum permissible
floor area of buildings now or hereafter available for "as of right"
development of buildings on the portion of the Properties described as
"Remaining Property" on Schedule 1.1(a) annexed hereto, together with
all buildings and improvements thereon and all rights appurtenant
thereto, without regard to the landmark status of the improvements
thereon, over the current as-built floor area of the improvements
erected on such parcel, all determined in accordance with the
applicable provisions of the Zoning Resolution, and including, without
limitation, the development rights specified in the Special Permit. As
used in this definition, "Special Permit" means that certain special
permit granted by the City Planning Commission of The City of New York
(Permit No. C 890639 ZSM), as amended, renewed or replaced from time
to time; and "Zoning Resolution" means the Zoning Resolution of The
City of New York, as amended from time to time, promulgated by the
City Planning Commission pursuant to Section 200 of the New York City
Charter.
"Allocated Loan Amount": with respect to any Property, the amount
set forth opposite the name of such Property on Schedule 1.1(a);
provided, however, that the Allocated Loan Amount of each Property
shall be reduced on and as of the date of any scheduled payment of
principal of the Loans or any optional or mandatory prepayment
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<PAGE> 8
of the Loans (other than any mandatory prepayment made pursuant to
Section 2.11(a) in connection with any Release, but only to the extent
of the Allocated Loan Amount(s) of the Property or Properties (or
portions thereof) being released) by an amount equal to the amount of
such payment or prepayment multiplied by a fraction, the numerator of
which shall be such Allocated Loan Amount immediately prior to such
reduction and the denominator of which shall be the aggregate of all
Allocated Loan Amounts of all Properties owned by the Borrower
immediately prior to such reduction; provided, further, however, that
for purposes of determining any reduction of any Allocated Loan
Amount, if a Release shall occur on the same date as any payment or
prepayment of the Loans which would require a reduction in Allocated
Loan Amounts pursuant to the immediately preceding proviso, such
Release shall be deemed to occur prior to such payment or prepayment
and prior to such reduction in Allocated Loan Amounts; and provided,
further, however, that, with respect to the Release of any portion of
any Property, (i) the Allocated Loan Amount of such Property shall be
allocated ratably between the portion of such Property subject to such
Release and the portion of such Property not subject to such Release
by the Agent in good faith based upon such factors as, without
limitation, the respective square footages and loan to value ratios of
such portions of such Property and the contractual rents attributable
to such portions of such Property, and such allocated amount shall be
deemed the "Allocated Loan Amount" for each such portion of such
Property, and (ii) from and after such Release, the portion of such
Property which was not subject to such Release shall be deemed to be a
"Property" for all purposes hereof.
"Applicable Lending Office": for each Lender and for each Type of
Loan, the lending office of such Lender designated for such Type of
Loan on Schedule I hereto (or any other lending office from time to
time notified to the Agent by such Lender ) as the office at which its
Loans of such Type are to be made and maintained.
"Applicable Margin": for any Loan of any Type at any time, the
rate per annum set forth under the relevant column heading set forth
below:
Eurodollar Base Rate
Loans Loans
--------------- ----------------
2.50% 0.00%
"Arranger": NationsBanc Montgomery Securities, LLC, as the sole
lead arranger, book manager and syndication agent of the Commitments.
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": as defined in Section 9.6(c).
"Available Commitment": as to any Lender at any time, an amount
equal to the excess, if any, of (a) the amount of such Lender's
Commitment at such time over (b) the aggregate principal amount of all
Loans theretofore made by such Lender.
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"Base Rate": for any day, the rate per annum (rounded upward, if
necessary, to the next 1/100 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof,
"Prime Rate" shall mean the rate of interest publicly announced by
NationsBank in Charlotte, North Carolina, from time to time as its
base rate (the base rate not being intended to be the lowest rate of
interest charged by NationsBank in connection with extensions of
credit to debtors.)
"Base Rate Loans": Loans the rate of interest applicable to which
is based upon the Base Rate.
"Borrower": as defined in the heading to this Agreement.
"Borrowing Date": any Business Day specified in a notice pursuant
to Section 2.3 as a date on which the Borrower requests the Lenders to
make Loans hereunder.
"Business": as defined in Section 3.21(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in Dallas, Texas or New York City are
authorized or required by law to close, and, if such day relates to a
borrowing of, a payment or prepayment of principal of or interest on,
or a Conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice by the Borrower with respect to any such borrowing,
payment, prepayment, Conversion or Interest Period, which is also a day
on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Budget": as defined in Section 5.2(c).
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all similar ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities
of one year or less from the date of acquisition and overnight bank
deposits of any Lender or of any commercial bank having capital and
surplus in excess of $500,000,000, (c) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the
United States Government, (d) commercial paper of a domestic issuer
rated at least A-1 or the equivalent thereof by Standard and Poor's
Ratings Group ("S&P") or P-1 or the equivalent thereof by Moody's
Investors Service, Inc. ("Moody's") and in either case maturing within
270 days after the day of acquisition, (e) securities with maturities
of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing
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<PAGE> 10
authority of any such state, commonwealth or territory or by any
foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's, (f) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause
(b) of this definition or (g) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements
of clauses (a) through (f) of this definition.
"Closing Date": the date on which the conditions precedent set
forth in Section 4.1 are satisfied and the initial Loans are made.
"Co-Agent": BankBoston, N.A., in its capacity as co-agent
hereunder.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment": as to any Lender, its obligation to make Loans to
the Borrower pursuant to Section 2.1 in an aggregate amount not to
exceed the amount set forth opposite such Lender's name on Schedule I
or in an Assignment and Acceptance, as such amount may be reduced from
time to time in accordance with the provisions of this Agreement.
"Commitment Period": the period from and including the date
hereof to but not including the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein.
"Commitment Percentage": as to any Lender, the quotient,
expressed as a percentage, equal to such Lender's Commitment divided
by the aggregate Commitments.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Condominium": The Rockefeller Center Tower Condominium formed
pursuant to the document specified in clause (b) of the definition of
"Condominium Documents".
"Condominium Documents": the collective reference to:
(a) the Expense Sharing Agreement;
(b) the Amended and Restated Declaration, dated as of July 17,
1996, establishing a Plan for Condominium Ownership of Premises in a
Portion of the Block Bounded by Rockefeller Plaza, Avenue of the
Americas, West 49th Street and West 50th Street, New York, N.Y.,
pursuant to Article 9-B of the Real Property Law of the
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<PAGE> 11
State of New York, Name: The Rockefeller Center Tower Condominium,
including the By-Laws of the Condominium annexed thereto;
(c) the Operation, Maintenance and Reciprocal Easement Agreement,
dated as of July 17, 1996, among the Borrower, NBC Trust, NBC, the
Condominium, RCP Associates and the New York City Industrial
Development Agency;
(d) the Declaration of Covenants and Restrictions, dated as of
July 17, 1996, between the Borrower and NBC; and
(e) the Agreement of First Offer, dated as of July 17, 1996,
between the Borrower and NBC;
as any of the foregoing may be amended, supplemented or otherwise
modified from time to time in accordance with Section 6.10.
"Condominium Regime": the condominium regime created by the
Amended and Restated Declaration dated as of July 17, 1996 for
Rockefeller Center Tower Condominium recorded in the Office of the New
York City Register in Reel 2348 at page 0853.
"Continue", "Continuation" and "Continued" shall refer to the
continuation of a Eurodollar Loan from one Interest Period to the next
Interest Period.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Convert", "Conversion" and "Converted" shall refer to a
conversion of Eurodollar Loans into Base Rate Loans or of Base Rate
Loans into Eurodollar Loans, which may be accompanied by the transfer
by a Lender (at its sole discretion) of a Loan from one Applicable
Lending Office to another.
"Credit Exposure": as to any Lender at any time, the sum of (a)
its unutilized Commitment, if any, and (b) the unpaid principal amount
of its Loans.
"Credit Exposure Percentage": as to any Lender at any time, a
fraction (expressed as a percentage), the numerator of which is the
Credit Exposure of such Lender at such time and the denominator of
which is the aggregate Credit Exposures of all of the Lenders at such
time.
"Debt Service Coverage Ratio": for any period, the ratio of (a)
Adjusted Net Operating Income for such period to (b) the sum of (i)
all installments of principal on the Loans and the Existing Loans
scheduled to be paid during such period (determined without giving
effect to any optional prepayments of the Loans pursuant to Section
2.10 hereof or the Existing Loans pursuant to Section 2.10 of the
Existing Senior Credit Agreement or optional reductions of the
Commitments pursuant to Section 2.5 hereof
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<PAGE> 12
or the Existing Commitments pursuant to Section 2.5 of the Existing
Senior Credit Agreement made at any time), (ii) all interest accrued
or payable on the Loans and the Existing Loans during such period
(after giving effect to any principal payments made on account of the
Loans and the Existing Loans) and (iii) the interest accrued or
payable on the 14% Debentures during such period (excluding scheduled
interest accrued on the 14% Debentures during any time prior to such
period, but including interest accrued on such unpaid interest for the
period since the immediately preceding 14% Debenture Interest Payment
Date), whether or not such interest has been paid, in accordance with
the Intercreditor Agreement.
"Debt to Value Ratio": at any time, (a) the aggregate amount of
all Indebtedness of the Borrower then outstanding, divided by (b) the
sum of the Fair Market Values at such time of all of the Properties
then owned by the Borrower.
"Default": any of the events specified in Section 7, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Eligible Assignee": (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States,
or any State thereof, and having a combined capital and surplus of at
least $500,000,000; (iv) a savings and loan association or savings
bank organized under the laws of the United States, or any State
thereof, and having a combined capital and surplus of at least
$500,000,000; (v) a commercial bank organized under the laws of any
other country that is a member of the Organization For Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or a political subdivision of any such
country, and having a combined capital and surplus of at least
$500,000,000, so long as such bank is acting through a branch or
agency located in the United States; and (vi) a finance company,
insurance company or other financial institution, mutual fund or other
fund (whether a corporation, partnership, trust or other entity) that
is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having a combined
capital and surplus of at least $250,000,000; provided, however, that
neither any Loan Party nor any Affiliate of a Loan Party shall qualify
as an Eligible Assignee under this definition; provided, further, that
any of the entities specified in (i) through (iv) above shall not be
deemed an Eligible Assignee unless such entity executes and delivers a
completed certificate attached as Exhibit G hereto.
"Engineers Reports": collectively, (a) the report of Merritt &
Harris, Inc., dated September 2, 1995, (b) the report of Hoffmann
Architects, dated September, 1995, (c) the report of Edwards & Zuck,
P.C., not dated, (d) the report of Tornton-Tomasetti/Engineers, dated
August 28, 1995, (e) the report of Syska & Hennessy, Inc., Engineers,
dated August 28, 1995, (f) the report of Facilities Technology
Consultants, Inc., dated August 25, 1995, (g) the report of Landmark
Elevator Consultants as edited
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<PAGE> 13
by Merritt & Harris, Inc., dated September 2, 1995, in each case
addressed to Tishman with respect to the Properties, (h) the letter
report of Comprehensive Building Analysis, Inc., dated March 31, 1999,
and (i) the update letter report of Ambient Lab, Inc., dated March 25,
1999.
"Environmental Laws": any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of
human health or the environment, as now or may at any time hereafter
be in effect and applicable to the Borrower or its properties.
"Estimated Calculation": as defined in Section 5.2(h).
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board of Governors
of the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained
by a member bank of such System. As of the date hereof, the
Eurocurrency Reserve Requirements are zero.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, (i) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period, or (ii)
if for any reason the rate described in clause (i) of this definition
is not available, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period, provided, however, that if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined
for such day in accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
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<PAGE> 14
Eurodollar Base Rate
--------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 7;
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Expense Sharing Agreement": the Unit Owners Agreement dated as
of July 17, 1996 between the Borrower, NBC Trust, NBC, General
Electric Company and the Condominium.
"Existing Loan Documents": the "Loan Documents", as defined under
the Existing Senior Credit Agreement.
"Existing Loans": the loans made under the Existing Senior Credit
Agreement.
"Existing Senior Credit Agreement": that certain Credit
Agreement, dated as of May 16, 1997, among the Borrower, the lenders
from time to time parties thereto and NationsBank (as successor by
merger to NationsBank of Texas, N.A.), as agent for the lenders, as
amended, supplemented or otherwise modified from time to time.
"Extension Fee": as defined in Section 2.6(g).
"Extension Term": if the Maturity Date is extended pursuant to
Section 2.6, the period commencing on the Original Maturity Date and
ending on the New Maturity Date.
"Fair Market Value": with respect to any Property at any time,
the value of such Property most recently determined by an appraisal
completed by an MAI appraiser, reasonably acceptable to the Agent and,
if required under FIRREA or other applicable Requirements of Law,
engaged by the Agent, such appraisal to be completed utilizing only a
Sales Comparison Approach and Income Capitalization Approach in
accordance with the appraisal criteria specified in The Appraisal of
Real Estate, Eleventh Edition, published by the Appraisal Institute.
"Federal Funds Effective Rate": for any day, the weighted average
of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for the day of
such transactions received by the Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letter": the letter agreement, dated as of April 12, 1999,
between the Borrower and NationsBank, as the same may be amended,
supplemented or otherwise modified from time to time.
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"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee
"FIRREA": the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended.
"14% Debenture Interest Payment Date": any date on which interest
is payable pursuant to the 14% Debentures and the 14% Debentures
Purchase Agreement (disregarding the effect of the Intercreditor
Agreement).
"14% Debenture Quarterly Amount": with respect to any 14%
Debenture Interest Payment Date, one-half of the amount of interest
scheduled to be paid on the 14% Debentures on such 14% Debenture
Interest Payment Date (excluding scheduled interest on the 14%
Debentures unpaid from prior 14% Debenture Interest Payment Dates, but
including interest accrued on such unpaid interest for the period
since the immediately preceding 14% Debenture Interest Payment Date).
"14% Debentures": the Borrower's 14% Debentures due 2007.
"14% Debentures Purchase Agreement": the Amended and Restated
Debenture Purchase Agreement, dated as of July 17, 1996, between the
Borrower and Whitehall, as amended pursuant to the First Amendment to
Amended and Restated Debenture Purchase Agreement, dated as of May 16,
1997, as further amended pursuant to the Second Amendment to Amended
and Restated Debenture Purchase Agreement, dated as of the date
hereof, and as further amended, supplemented or otherwise modified
from time to time as permitted hereunder.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governing Documents": as to any Person, its articles or
certificate of incorporation and by-laws, its partnership agreement,
its certificate of formation and operating agreement, and/or the other
organizational or governing documents of such Person.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Ground Leases": collectively, (a) that certain unrecorded
Amended and Restated Lease dated July 17, 1996 by and between RCP
Associates as landlord and Rockefeller Center Properties as tenant,
and (b) that certain Lease, dated August 23, 1949, between the
Ministers, Elders and Deacons of the Reformed Protestant Dutch Church
of The City of New York, a religious corporation organized under the
Royal Charter of 1696 and existing under the laws of the State of New
York (the "Church"), as lessor, and Massachusetts Mutual Life
Insurance Company, a Massachusetts
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<PAGE> 16
corporation ("Mass Mutual"), as lessee, recorded in the Office of the
City Register for New York County (the "Register's Office") on
September 2, 1949 in Liber 4637, page 103, as modified by the
Modification of Lease Agreement dated April 26, 1950, between the
Church and Mass Mutual, recorded on May 10, 1950 in the Register's
Office in Liber 4673, page 106, as assigned by the Assignment of
Lease, dated May 13, 1963, between the Church and Rock-Sinclair, Inc.,
a New York corporation ("Rock-Sinclair"), recorded on May 16, 1963 in
the Register's Office in Liber 5232, page 130, as modified by the
Modification of Lease dated May 15, 1963, made by and between the
Church and Rock-Sinclair, Inc., recorded May 16, 1963 in Liber 5232 cp
130, as assigned by the Assignment of Lease, dated May 22, 1963, made
by Rock-Sinclair, as Assignor, to Rockefeller Center, Inc., as
Assignee, recorded May 23, 1963 in Liber 5233 cp 171, as modified by
the Modification of Lease, dated as of October 15, 1979, between the
Church and Rockefeller Center, Inc., recorded on March 4, 1980 in the
Register's Office in Reel 516, page 92, as assigned by the Assignment
and Assumption Agreement, dated September 11, 1985, between
Rockefeller Group, Inc., formerly known as Rockefeller Center, Inc.,
as Assignor, and Rockefeller Center Properties, as Assignee, recorded
September 12, 1985 in Reel 960 page 766, as assigned by the Assignment
and Assumption of Ground Lease, dated as of July 17, 1996, made by
Rockefeller Center Properties to RCPI Trust, recorded on July 22, 1996
in the Register's Office in Reel 2347, page 605.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for
the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a
verb shall have a correlative meaning. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is
made and (b) the maximum amount for which such guaranteeing person may
be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum
amount for which such
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<PAGE> 17
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Hedging Obligations": of any Person, all obligations of such
Person in respect of any rate swap transaction, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option, credit
derivative transaction or any other similar transaction (including any
option with respect to any of the foregoing transactions) or any
combination of the foregoing transactions.
"Holdings": as defined in the Recitals hereto.
"Indebtedness": of any Person at any date, without duplication,
(a) all indebtedness of such Person for borrowed money (whether by
loan or the issuance and sale of debt securities) or for the deferred
purchase price of property or services, (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases,
(d) all obligations of such Person in respect of letters of credit,
acceptances or similar instruments issued or created for the account
of such Person and (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof, provided, however,
that Indebtedness shall not include (i) the obligations of the
Borrower under any lease to provide tenant improvements or tenant
allowances, or (ii) except for purposes of Section 6.1, current trade
liabilities permitted under Section 6.1(g) hereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Amended and Restated Intercreditor
and Subordination Agreement, to be executed and delivered by, the
Agent, on behalf of the Lenders hereunder and as agent for the lenders
under the Existing Senior Credit Agreement, the holder(s) of the 14%
Debentures, Whitehall and the Borrower, as the same may be amended,
supplemented or otherwise modified from time to time.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
day of each calendar month, and (b) as to any Eurodollar Loan, the
last day of each Interest Period therefor.
"Interest Period": with respect to any Eurodollar Loan:
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<PAGE> 18
(i) initially, the period commencing on the Borrowing Date or
Conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Borrower in its notice of borrowing or notice of Conversion, as
the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Agent not less than three
Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided that,
(1) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(2) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; and
(3) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month.
"Investors": collectively, WHRC II Real Estate Limited
Partnership, a Delaware limited partnership; Prometheus Investors,
L.L.C., a Delaware limited liability company; EXOR Group, a Luxembourg
investment holding company; EXOR America Inc., a Delaware corporation;
Rockprop, L.L.C., a Delaware limited liability company; Troutlet
Investments Corporation, a British Virgin Islands corporation; Gribble
Investment (Tortola) BVI, Inc., a British Virgin Islands corporation;
Weevil Investment (Tortola) BVI, Inc., a British Virgin Islands
corporation; and Coreopsis Corporation, a Delaware corporation.
"Key Principals": collectively, Whitehall Street Real Estate
Limited Partnership V, a Delaware limited partnership, David
Rockefeller, EXOR Group, a Luxembourg investment holding company,
Tishman Speyer Crown Equities, a Delaware general partnership, and
Bonito Investments, LDC, a Bahamas limited duration company.
"Leases": collectively, the Space Leases and the Retail Leases.
"Lenders": as defined in the caption to this Agreement.
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<PAGE> 19
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, violation, encumbrance, lien (statutory, choate, inchoate
or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing
Lease having substantially the same economic effect as any of the
foregoing), and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction in
respect of any of the foregoing.
"Limited Recourse Agreement": the Limited Recourse Agreement to
be executed and delivered by each Key Principal, in form as agreed
between the Borrower, the Agent and each Key Principal, as the same
may be amended, supplemented or otherwise modified from time to time.
"LLC": as defined in the Recitals hereto.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Notes, the Intercreditor
Agreement and the Limited Recourse Agreement.
"Loan Parties": collectively, the Borrower, Whitehall and each
Key Principal.
"Majority Lenders": at any time, Lenders the Credit Exposure
Percentages of which aggregate more than 50%.
"Major Retail Lease": any Retail Lease, or Retail Leases to an
affiliated group of tenants, providing for the lease of space in an
aggregate amount of 10,000 square feet or more.
"Major Space Lease": any Space Lease, or Space Leases to an
affiliated group of tenants, providing for the lease of space in an
aggregate amount of 100,000 square feet or more.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b)
the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Agent or the Lenders
hereunder or thereunder.
"Material Environmental Amount": an amount payable by the
Borrower and/or its Subsidiaries in excess of $5,000,000 for remedial
costs, compliance costs, compensatory damages, punitive damages,
fines, penalties or any combination thereof.
"Material Service Contracts": as defined in Section 3.8(d).
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"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including,
without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation other than in de minimus quantities which
are maintained in compliance with applicable law.
"Maturity Date": May 16, 2000, as such date may be extended
pursuant to Section 2.6.
"Merger Agreement": as defined in the Recitals hereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NationsBank": NationsBank, N.A., a national banking association.
"NBC": National Broadcasting Company, Inc.
"NBC Trust": NBC Trust No. 1996A, a Delaware business trust.
"Net Cash Flow after Debt Service": for any period, Net Operating
Income for such period, minus (a) all expenditures during such period
made by the Borrower in respect of tenant improvements, leasing
commissions, capital expenditures and replacement reserves, and (b)
all interest and principal payments (including Accelerated
Amortization Payments) made on the Loans and the Existing Loans, and
all interest actually paid on the 14% Debentures (other than payments
of interest on the 14% Debentures made with the proceeds of cash
contributions to the common equity of the Borrower by the Investors
made contemporaneously with such interest payments), during such
period.
"Net Operating Income": for any period, all cash revenues earned
by the Borrower from the Properties for such period, including all
base, storage and percentage rents, all escalation charges, all
miscellaneous tenant charges, proceeds from rental interruption
insurance, and tax, insurance and any other tenant reimbursements (but
specifically excluding proceeds from dispositions of assets and any
net payments received by the Borrower with respect to Hedging
Obligations permitted under Section 6.1(c) and (f)) less any and all
costs and expenses of a non-capital nature, including but not limited
to operating, maintenance, taxes, rents, management fees paid to the
Property Manager, administrative, promotional, marketing, legal and
accounting costs and expenses, incurred on a cash basis in connection
with the Properties, but specifically excluding debt service and any
net payments made by the Borrower with respect to Hedging Obligations
permitted under Section 6.1 (e) and (f).
"Net Proceeds": (i) the aggregate cash consideration received by
the Borrower or a Subsidiary in connection with any transaction
referred to in Section 2.11(a)(ii) or 2.11(b) less (ii) the actual
expenses (including out-of-pocket expenses) incurred by the
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Borrower or such Subsidiary in connection with such transaction
(including, in the case of any issuance of debt or equity securities,
underwriters' commissions and fees) and the amount of any federal and
state taxes incurred in connection with such transaction, in each case
as certified by a Responsible Officer to the Agent at the time of such
transaction.
"New Maturity Date": as defined in Section 2.6.
"Non-Excluded Taxes": as defined in Section 2.17.
"Note": as defined in Section 2.2.
"Obligations": the unpaid principal amount of, and interest
(including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
on the Loans, and all other obligations and liabilities of the
Borrower to the Agent and the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, or out of or in connection
with this Agreement, the Notes and any other Loan Documents and any
other document made, delivered or given in connection therewith or
herewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without
limitation, all fees and disbursements of counsel to the Agent or to
the Lenders that are required to be paid by the Borrower pursuant to
the terms of the Loan Documents) or otherwise.
"Operating Committee": as defined in that certain Amendment
Agreement, dated as of May 1, 1997, among Holdings, Rockefeller Center
Properties, Inc., the Key Principals, the Investors, LLC, the Borrower
and the Trustees of the Borrower.
"Original Maturity Date": as defined in Section 2.6.
"Participant": as defined in Section 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Encumbrances": as defined in Section 3.8(a).
"Permitted Major Retail Lease": any Major Retail Lease which has
been (or a substantially final draft of which has been) submitted to
the Agent, together with a written summary of the economic terms
thereof, and which the Agent has not disapproved of in writing within
ten days of such submission to the Agent.
"Permitted Major Space Lease": any Major Space Lease which has
been (or a substantially final draft of which has been) submitted to
the Agent, together with a
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written summary of the economic terms thereof, and which the Agent has
not disapproved of in writing within ten days of such submission to
the Agent.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any Multiemployer Plan or Single
Employer Plan, and any other employee benefit plan within the meaning
of Section 3(3) of ERISA, which is maintained for employees of the
Borrower or a Commonly Controlled Entity.
"Property": any parcel of real property listed on Schedule 1.1(a)
(and any portion thereof to the extent set forth in the third proviso
of the definition of "Allocated Loan Amount"), excluding any such
parcel (or portion thereof) that is sold after the Closing Date in
accordance with Section 6.5.
"Property Management Agreement": as defined in Section 5.10.
"Property Manager": Tishman, in its capacity as property manager
under the Property Management Agreement, or any successor property
manager permitted under the terms of this Agreement.
"RCPI": as defined in the Recitals hereto.
"RCPI Merger": as defined in the Recitals hereto.
"Recourse Party": as defined in the Limited Recourse Agreement.
"Register": as defined in Section 9.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Release": any sale, lease (excluding any tenant lease which is
not in economic substance a financing or disposition transaction),
assignment, exchange, transfer or other disposition of any Property or
any interest in any Property. Each of the terms "Release", "Releasing"
and "Released", used as a verb or adjective, as applicable, shall have
a correlative meaning.
"Release Price": with respect to any Property (or portion
thereof), 125% of the Allocated Loan Amount of such Property (or
portion thereof), but in no event greater than the aggregate
outstanding principal balance of the Loans.
"Rent Roll": the rent roll prepared by the Property Manager dated
March 31, 1999 showing in tabular form the base and additional rent
under all Leases for the month prior to the Closing Date.
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"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under Sections .21, .22, .23, .26, .27 or .28
of PBGC Reg. Section 4043.
"Required Lenders": at any time, Lenders the Credit Exposure
Percentages of which aggregate greater than 50%.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational documents or
Governing Documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer": the president or any vice president of the
Borrower.
"Restricted Payments": as defined in Section 6.6.
"Retail Lease": any lease, sublease (under which the Borrower or
any Affiliate or Subsidiary of the Borrower is sublandlord), master
lease, concession or license of retail space at any Property now
existing or entered into by the Borrower after the date hereof in
accordance with the terms of this Agreement.
"RGT Telecommunications Agreement": the letter agreement, dated
July 17, 1996, between Rockefeller Group Telecommunications Services,
Inc. and the Borrower, and the letter agreement, dated July 17, 1996,
between Rockefeller Group, Inc. and the Borrower, in each case as
amended, supplemented or otherwise modified.
"Scheduled Leases": as defined in Section 4.1(b).
"Scheduled Payment Amount": as defined in Schedule 2.2.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Space Lease": any lease, sublease (under which the Borrower or
any Affiliate or Subsidiary of the Borrower is sublandlord), master
lease, concession or license of space (other than retail space) at any
Property now existing or entered into by the Borrower after the date
hereof in accordance with the terms of this Agreement.
"Stabilized Capital Expenditures Amount": for any Test Period, an
amount equal to (a) $20,500,000 minus (b) the product of (i)
$20,500,000 and (ii) the sum of the percentages set forth on Schedule
1.1(b) for all Properties and portions of Properties which have been
Released prior to the beginning of such Test Period, plus with respect
to any Property or portion of a Property which have been released
during
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such Test Period, the sum of the percentages set forth on Schedule
1.1(b) for each such Property or portion of a Property after such
percentage has been multiplied by a fraction, the numerator of which
is the number of days in such Test Period following the Release of
such Property or portion of a Property and the denominator of which is
the number of days in such Test Period.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Tax Status Certificate": as defined in Section 2.17(b)(i)(B).
"Tenant Improvement Obligations": all obligations of Borrower
under Leases existing as of the Closing Date, in an aggregate amount
in excess of $1,000,000 over four years following May 16, 1997 for any
one tenant.
"Termination Date": February 16, 2000.
"Test Period": any period of four consecutive fiscal quarters of
the Borrower ended during 1999 or any subsequent year.
"Tishman": Tishman-Speyer Properties, L.P., a New York limited
partnership.
"Tranche": the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"Transferee": as defined in Section 9.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Whitehall": WHRC Real Estate Limited Partnership, a Delaware
limited partnership.
"Year 2000 Compliant": as defined in Section 3.23.
"Year 2000 Problem": the risk that computer applications used by
the Borrower or any of its Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates
after December 31, 1999).
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"Zeros": the Borrower's Zero Coupon Convertible Debentures due
2000.
"Zeros Indenture": the Indenture, dated as of September 15, 1985,
made by the Borrower (as successor to RCPI) to The Chase Manhattan
Bank (as successor to Manufacturers Hanover Trust Company), as
modified by the First Supplemental Indenture thereto, dated as of
December 15, 1985, and the Second Supplemental Indenture thereto,
dated as of July 10, 1996, and as otherwise modified prior to the date
hereof, and as the same may be further amended, supplemented or
otherwise modified as provided in Section 6.9 hereof.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating
to the Borrower and its Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof, each
Lender severally agrees to make one or more term loans (each, a
"Loan") to the Borrower from time to time during the Commitment Period
in an aggregate principal amount not to exceed the amount of the
Commitment of such Lender then in effect; provided, that the
Commitments shall terminate at 3:00 p.m., Dallas, Texas time, on May
9, 1999, if the initial Loans have not been made prior to that time;
and provided, further, that the Borrower shall not request Loans more
frequently than once per calendar month; and provided, further, that
after giving effect to the making of any Loans on any Borrowing Date
occurring on or after any date set forth in the table on Schedule 2.2,
the aggregate outstanding principal amount of Loans may in no event
exceed the amount set forth on such table opposite such date as the
"Maximum Allowable Loan Balance". The Loans may from time to time be
(a) Eurodollar Loans, (b) Base Rate Loans or (c) a combination
thereof, as determined by the Borrower and notified to the Agent in
accordance with Sections 2.3 and 4.2. Amounts repaid on account of the
Loans may not be reborrowed.
2.2 Notes. The Loans of each Lender shall be evidenced by a
promissory note of the Borrower, substantially in the form of Exhibit
A with appropriate insertions as to
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payee, date and principal amount (a "Note"), payable to the order of
such Lender and representing the obligation of the Borrower to pay a
principal amount equal to the lesser of (a) the amount of the
Commitment of such Lender and (b) the aggregate unpaid principal
amount of all Loans made by such Lender. Each Lender is hereby
authorized to record the date, Type and amount of its Loans and the
date and amount of each payment or prepayment of principal thereof on
the schedule annexed to and constituting a part of its Note, and any
such recordation shall constitute prima facie evidence of the accuracy
of the information so recorded absent manifest error; provided, that
the failure of such Lender to make any such recordation shall not
impair or otherwise affect the validity or enforceability of its Note.
Each Note shall (a) be dated the Closing Date, (b) be stated to mature
in installments in amounts equal to such Lender's Commitment
Percentage of the amounts, and payable on the dates, set forth, or
determined as set forth, on Schedule 2.2, and (c) bear interest for
the period from the date thereof on the unpaid principal amount
thereof at the applicable interest rates per annum specified in
Section 2.7. Interest on the Notes shall be payable on the dates
specified in Section 2.7(d).
2.3 Procedure for Borrowing. The Borrower may borrow under the
Commitments during the Commitment Period on any Business Day in an
aggregate principal amount not exceeding the aggregate Available
Commitments then in effect; provided, that the Borrower shall give the
Agent irrevocable notice (which notice must be received by the Agent
prior to 10:00 a.m., Dallas, Texas time, (a) three Business Days prior
to the requested Borrowing Date, if all or any part of the Loans are
to be initially Eurodollar Loans or (b) one Business Day prior to the
requested Borrowing Date, otherwise) requesting that the Lenders make
the Loans on such requested Borrowing Date and specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii)
whether the borrowing is to be of Eurodollar Loans or Base Rate Loans
or a combination thereof, (iv) if the Loans are to be entirely or
partly Eurodollar Loans, the amounts of such Type of Loan and the
lengths of the initial Interest Periods therefor, and (v) the
certificate required pursuant to Section 4.2(c). The initial borrowing
shall be in an amount equal to at least $5,000,000. Each borrowing
thereafter under the Commitments shall be in an amount equal to at
least $1,000,000. Upon receipt of such notice the Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its
pro rata share of each borrowing available to the Agent for the
account of the Borrower at the office of the Agent specified in
Section 9.2 prior to 11:00 a.m., Dallas, Texas time, on the Borrowing
Date requested by the Borrower in funds immediately available to the
Agent. Such borrowing will then be made available to the Borrower by
the Agent by wire transfer to an account designated by the Borrower in
writing with the aggregate of the amounts made available to the Agent
by the Lenders and in like funds as received by the Agent.
2.4 [Intentionally Omitted].
2.5 Termination or Reduction of Commitments. The Borrower shall
have the right at any time during the Commitment Period, upon not less
than five Business Days' notice to the Agent, to terminate the
Commitments or, from time to time, to reduce the amount of the
Commitments. Any such reduction shall be in an amount equal to
$1,000,000 or a whole multiple thereof and shall reduce permanently
the Commitments then in effect.
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2.6 Extension of Maturity Date. The Borrower may, at its option and
subject to the satisfaction of the conditions precedent set forth in the next
succeeding sentence, on a single occasion request that the Maturity Date as in
effect on the date of this Agreement (the "Original Maturity Date") be extended
to December 31, 2000 (such new date, the "New Maturity Date"). The effectiveness
of the extension of the Original Maturity Date to the New Maturity Date shall be
subject to the satisfaction of the following conditions precedent on and as of
the Original Maturity Date:
(a) the Borrower shall have provided written notice to the Agent,
at least 30 days but no more than 90 days prior to the Original
Maturity Date, that it has elected to extend the Original Maturity
Date to the New Maturity Date, which notice shall contain a
certification from a Responsible Officer of the Borrower that as of
the date of such notice the Borrower shall be able to satisfy each of
the other conditions precedent to the extension of the Maturity Date
set forth in this Section 2.6 and shall include computations, in
reasonable detail, supporting the assertion that the Borrower shall be
able to satisfy the conditions set forth in clauses (d) and (e) of
this Section 2.6;
(b) the Borrower shall not have received written notice from the
Agent of any Default;
(c) no Event of Default shall have occurred and be continuing;
(d) the Debt to Value Ratio (based upon the appraisal delivered
pursuant to Section 5.2(g)) shall not exceed 65%;
(e) the Debt Service Coverage Ratio for the Test Period ended
December 31, 1999 shall not be less than 1.15 to 1;
(f) the Adjusted Debt Service Coverage Ratio for the Test Period
ended December 31, 1999 shall not be less than 1.55 to 1;
(g) the Borrower shall have obtained an interest rate swap, cap,
collar or other interest rate hedge with respect to at least 50% of
the then outstanding principal amount of the Loans, fixing the
Eurodollar Rate for the Extension Term at not more than 3% above the
Eurodollar Rate as in effect on the Original Maturity Date; and
(h) the Borrower shall have paid an extension fee (the "Extension
Fee"), in an amount equal to 0.25% of the aggregate principal amount
of the Loans then outstanding, to the Agent for the ratable benefit of
the Lenders.
From and after the effectiveness of any such extension as provided in this
Section 2.6, the New Maturity Date shall constitute the Maturity Date for all
purposes of the Loan Documents.
2.7 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period (excluding the last day
of each Interest Period) with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.
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(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) If any Event of Default shall have occurred and be
continuing, the principal of the Loans and any interest, commitment
fee or other amount shall bear interest during the period such Event
of Default continues at a rate per annum which is the higher of (A)
(x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this
Section plus 2% or (y) in the case of any such overdue interest,
commitment fee or other amount, the rate described in paragraph (b) of
this Section plus 2%, and (B) the rate at which interest accrues on
overdue amounts payable under the Zeros in each case from the date of
such non-payment until such overdue principal, interest, commitment
fee or other amount is paid in full (as well after as before
judgment), but in no event in excess of the maximum amount permitted
by applicable law.
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of
this Section shall be payable from time to time on demand.
2.8 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to Convert Eurodollar Loans to Base Rate Loans, by giving the
Agent at least two Business Days' prior irrevocable notice of such election,
provided that any such Conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower may elect from
time to time to Convert Base Rate Loans to Eurodollar Loans by giving the Agent
at least three Business Days' prior irrevocable notice of such election. Any
such notice of Conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Agent shall promptly notify each Lender thereof. All or any part of
outstanding Eurodollar Loans and Base Rate Loans may be Converted as provided
herein, provided that (i) no Loan may be Converted into a Eurodollar Loan when
any Event of Default has occurred and is continuing and the Agent has determined
or the Required Lenders have notified the Agent of their determination that such
a Conversion is not appropriate, (ii) any such Conversion may only be made if,
after giving effect thereto, Section 2.9 shall not have been contravened, and
(iii) no Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the Maturity Date.
(b) Any Eurodollar Loans may be Continued as such upon the
expiration of the then current Interest Period with respect thereto by
the Borrower giving notice to the Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be
Continued as such (i) when any Event of Default has occurred and is
continuing and the Agent has determined or the Required Lenders have
notified the Agent of their determination that such a Continuation is
not appropriate, (ii) if, after giving effect thereto, Section 2.9
would be contravened or (iii) after the date that is one month prior
to the Maturity Date and provided, further, that if the Borrower shall
fail to give such notice or if such Continuation is not permitted such
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Loans shall be automatically converted to Base Rate Loans on the last
day of such then expiring Interest Period.
2.9 Minimum Amounts and Maximum Number of Tranches. All borrowings,
Conversions and Continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Loans comprising each Tranche shall be equal to $1,000,000 or a whole
multiple of $250,000 in excess thereof. In no event shall there be more than
four Tranches outstanding at any time.
2.10 Optional Prepayments. The Borrower may at any time and from time
to time, prepay the Loans, in whole or in part, without premium or penalty, upon
at least four Business Days' irrevocable notice to the Agent, specifying the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans,
Base Rate Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice the Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with any amounts payable pursuant to Section 2.18 and accrued interest
to such date on the amount prepaid. Partial prepayments of the Loans pursuant to
this Section shall be applied to the installments of principal thereof in the
direct order of their scheduled maturities. Amounts prepaid on account of the
Loans may not be reborrowed. Partial prepayments pursuant to this Section shall
be in an aggregate principal amount of $100,000 or a whole multiple thereof.
2.11 Mandatory Prepayments.
(a) (i) Upon the date of any Release of any Property (or portion
thereof) other than the Air Rights, the Borrower shall prepay the Loans in
an amount equal to the Release Price of such Property (or portion thereof),
and (ii) upon the sale or other disposition of the Air Rights, the Borrower
shall prepay the Loans in an amount equal to the excess, if any, of 10% of
the Net Proceeds of such sale over the aggregate amount of prepayments of
the Existing Loans required to be made pursuant to Section 2.11(a)(ii) of
the Existing Senior Credit Agreement in respect of such sale or
disposition.
(b) To the extent required to be applied to the prepayment of the
Loans pursuant to Section 5.6, unless the Required Lenders otherwise agree,
the Borrower shall prepay the Loans in an amount equal to the excess, if
any, of 100% (or such smaller portion as required pursuant to Section 5.6)
of the Net Proceeds of any destruction, casualty or taking of any property
of the Borrower or any Subsidiary (including any insurance proceeds) over
the aggregate amount of prepayments of the Existing Loans required to be
made pursuant to Section 2.11(b) of the Existing Senior Credit Agreement in
respect of such destruction, taking or casualty, in any such case no later
than three Business Days following receipt by the Borrower or such
Subsidiary of such proceeds, together with accrued interest to such date on
the amount prepaid.
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(c) Prepayments of Loans pursuant to Section 2.11(a) and (b) shall be
applied pro rata to the installments of the Loans and such amounts so
prepaid may not be reborrowed. Prepayments of Loans pursuant to this
Section 2.11 (other than Section 2.11(a) and (b)) shall be applied to the
installments of the Loans in the inverse order of maturity and such amounts
so prepaid may not be reborrowed.
(d) Nothing in Section 2.11(a) shall be construed to derogate any
restriction or limitation contained in any Loan Document imposed on any
transaction of the types described in Section 2.11(a), including without
limitation the restrictions and limitations set forth in Sections 6.1, 6.4
and 6.5 hereof.
(e) If, on the last day of any fiscal quarter of the Borrower
(commencing with second quarter of 1999), either (i) the Debt Service
Coverage Ratio for the Test Period ended on such day was less than 1.15 to
1 or (ii) the Adjusted Debt Service Coverage Ratio for the Test Period
ended on such day was less than 1.40 to 1, the Borrower shall prepay the
Loans in an amount equal to the excess, if any, of the 14% Debenture
Quarterly Amount for the 14% Debenture Interest Payment Date next occurring
after the last day of such quarter over the aggregate amount of prepayments
of the Existing Loans required pursuant to Section 2.11(e) of the Existing
Senior Credit Agreement in respect of such fiscal quarter (any such
prepayment pursuant to this Section 2.11(e), an "Accelerated Amortization
Payment").
Such calculations of Debt Service Coverage Ratio (or Adjusted Debt Service
Coverage Ratio) for any such Test Period shall be made on the date the
Estimated Calculation for such Test Period is required to be delivered to
the Agent pursuant to Section 5.2(h), and the Borrower shall make any such
prepayment required by this Section 2.11(e) based upon such Estimated
Calculation. If, on the date that the financial statements for the fiscal
quarter ended on the last day of such Test Period are delivered to the
Agent pursuant to Section 5.1(a) or (b), the amounts calculated for Debt
Service Coverage Ratio (or Adjusted Debt Service Coverage Ratio) for such
Test Period based upon such financial statements would have resulted in a
determination that a prepayment is or is not required under Section 2.11(e)
that is different from the determination resulting from the Estimated
Calculation, on the date of delivery of such financial statements the
Borrower shall make such prepayment, or the Lenders shall as soon as
reasonably practicable after such delivery of such financial statements
return to the Borrower the prepayment made pursuant to such Estimated
Calculation, as the case may be, so that the prepayment made by the
Borrower for such Test Period is the prepayment required under this Section
2.11(e) based upon the calculation of Debt Service Coverage Ratio (or
Adjusted Debt Service Coverage Ratio)for such Test Period determined with
reference to such financial statements delivered pursuant to Section 5.1(a)
or (b).
2.12 Computation of Interest and Fees. (a) Commitment fees and interest
shall be calculated on the basis of a 360-day year for the actual days elapsed.
The Agent shall as soon as practicable notify the Borrower and the Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of
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business on the day on which such change becomes effective. The Agent shall as
soon as practicable notify the Borrower and the Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Agent shall, at the request of
the Borrower, deliver to the Borrower a statement showing the quotations used by
the Agent in determining any interest rate pursuant to Section 2.7(a).
2.13 Inability to Determine Interest Rate. If prior to the first day of
any Interest Period for a Eurodollar Loan:
(a) the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Agent shall have received notice from the Majority Lenders
that the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Base Rate Loans, and (y) any outstanding Eurodollar Loans shall
be Converted, on the first day of such Interest Period, to Base Rate Loans.
Until such notice has been withdrawn by the Agent, no further Eurodollar Loans
shall be made or Continued as such.
2.14 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages, as
applicable, of the Lenders. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made pro
rata according to the respective outstanding principal amounts of the Loans then
held by the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made prior
to 12:00 noon, Dallas, Texas time, on the due date thereof to the Agent, for the
account of the Lenders, at the Agent's office specified in Section 9.2, in
Dollars and in immediately available funds. The Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If
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any payment on a Eurodollar Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month in which event such payment shall be made on the
immediately preceding Business Day.
(b) Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make the amount that would
constitute its Commitment Percentage of such borrowing available to the
Agent, the Agent may assume that such Lender is making such amount
available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Agent, on demand,
such amount with interest thereon at a rate equal to the daily average
Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the Agent. A certificate of the Agent
submitted to any Lender with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to
the Agent by such Lender within three Business Days of such Borrowing Date,
the Agent shall also be entitled to recover, without duplication of
interest paid by such Lender pursuant to the second preceding sentence,
such amount with interest thereon at the rate per annum applicable to Base
Rate Loans hereunder, on demand, from the Borrower.
2.15 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans and Continue Eurodollar Loans as such
shall forthwith be canceled and (b) such Lender's Loans then outstanding as
Eurodollar Loans, if any, shall be Converted automatically to Base Rate Loans on
the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
Conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 2.18.
2.16 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in any such case,
made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.17 and changes in the
rate of tax on the overall net income of such Lender);
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(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on any Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, Continuing or
maintaining Eurodollar Loans or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the Borrower shall promptly pay such
Lender, upon its written demand, such additional amount or amounts as will
compensate such Lender for such increased cost or the amount by which such
amount received is reduced.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority, in any such case, made subsequent to the date
hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then
from time to time, the Borrower shall, subject to paragraph (c) below and
Section 2.20, promptly pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrower (with a
copy to the Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to
this Section submitted by such Lender to the Borrower (with a copy to the
Agent) shall be conclusive in the absence of manifest error. The agreements
in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(d) Any amount payable by the Borrower on account of this Section 2.16
shall not be duplicative of any amounts payable under Sections 2.17 or 2.18
or included in the calculation of Eurodollar Rate.
2.17 Taxes. (a) All payments made by the Borrower under this Agreement
and any Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise
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taxes (imposed in lieu of net income taxes) imposed on the Agent or any Lender
as a result of a present or former connection between the Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any Note). If any such non-excluded taxes, levies, imposts,
duties, charges, fees deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Agent or any Lender
hereunder or under any Note, the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement,
provided, however, that the Borrower shall not be required to increase any such
amounts payable to any Lender that is not organized under the laws of the United
States of America or a state thereof if such Lender fails to comply with the
requirements of clause (b) of this Section. Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Agent for its own account or for the account of such Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to the
Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) (A) if such Lender is a "bank" within the meaning of Section
881(c)(3)(A) of the Code, deliver to the Borrower and the Agent (x) two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, and (y) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be, or (B) if such Lender is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224, deliver (x) a certificate substantially
in the form of Exhibit B (a "Tax Status Certificate") and (y) two completed
and signed copies of Internal Revenue Service Form W-8 or successor
applicable form;
(ii) deliver to the Borrower and the Agent two further copies of any
such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it
to the Borrower; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Borrower or
the Agent;
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unless in any such case an event (including, without limitation, any change
in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent. Such Lender shall certify (i) in the case of a Form
1001 or 4224, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
(ii) in the case of a Tax Status Certificate, that it is not a "bank" as
such term is defined in Section 881(c)(3)(A) of the Code, and (iii) in the
case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to Section 9.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this Section, provided that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have
been purchased.
(c) Any amount payable by the Borrower on account of this Section 2.17
shall not be duplicative of any amounts payable under Sections 2.16 or 2.18
or included in the calculation of Eurodollar Rate.
2.18 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of or Continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment or Conversion of Eurodollar Loans on a day which is not
the last day of an Interest Period with respect thereto. Such indemnification
may include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid or Converted, or not so
borrowed or Continued, for the period from the date of such prepayment or
Conversion or of such failure to borrow or Continue to the last day of such
Interest Period (or, in the case of a failure to borrow or Continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Bank on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market. Any
amount payable by the Borrower on account of this Section 2.18 shall not be
duplicative of any amounts payable under Sections 2.16 or 2.17 or included in
the calculation of Eurodollar Rate. This covenant shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.19 Lending Offices; Change of Lending Office. (a) Loans of each Type
made by any Lender shall be made and maintained at such Lender's Applicable
Lending Office for Loans of such Type.
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(b) Each Lender agrees that if it makes any demand for payment under
Section 2.16 or 2.17(a), or if any adoption or change of the type described
in Section 2.15 shall occur with respect to it, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to
it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need
for the Borrower to make payments under Section 2.16 or 2.17(a), or would
eliminate or reduce the effect of any adoption or change described in
Section 2.15.
2.20 Certificates, Etc. (a) If requested by the Borrower, in connection
with any demand for payment pursuant to Sections 2.16, 2.17 or 2.18, a Lender
shall provide to the Borrower, with a copy to the Agent, a certificate setting
forth in reasonable detail the basis for such demand and the satisfaction of the
conditions set forth in the next succeeding sentence.
(b) Anything to the contrary herein notwithstanding, no Lender shall
have the right to demand any payment or compensation under Section 2.16 or
2.17 (i) with respect to any period more than nine months prior to the date
it has made a demand pursuant to such Sections, and (ii) to the extent that
such Lender determines in good faith that the interest rate or margin on
the relevant Loans appropriately accounts for the increased cost or reduced
rate of return which is the subject of such demand.
2.21 Replacement of Lenders. If no Default or Event of Default shall
have occurred and be continuing, the Borrower may replace any Lender (other than
NationsBank or any Affiliate thereof) that has requested the Borrower to pay
amounts pursuant to Sections 2.16 or 2.17 or the obligations of which to make
any Loans has been suspended pursuant to Section 2.15 (such Lender, an "Affected
Lender"), at any time until such Affected Lender's request for payment under
Section 2.16 or 2.17 has been withdrawn or such suspension of the obligation to
make Loans has ceased, by giving not less than 10 Business Days' notice to the
Agent (which shall promptly notify the Affected Lender and each other Lender)
that it intends to replace such Affected Lender with one or more Eligible
Assignees (or other lender acceptable to the Agent). Such replacement shall be
effected by Assignment and Acceptance and registration of such assignment in the
Register in accordance with Section 9.6(c). Upon the effective date of any such
replacement pursuant to this Section 2.21, and as a condition thereto, the
Borrower shall, or shall cause the replacement Lender or Lenders to, pay to the
Affected Lender being so replaced an amount equal to the entire outstanding
principal amount of such Affected Lender's Loans and any other amounts owing to
such Affected Lender hereunder (including, without limitation, interest, fees,
compensation and additional amounts under this Section 2, in each case accrued
to the effective date of such replacement), whereupon (i) each replacement
lender shall become a "Lender" for all purposes of this Agreement and the other
Loan Documents having a Commitment in the amount of such Affected Lender's
Commitment assumed by it, (ii) the Commitment of the Affected Lender being
replaced shall be terminated upon such effective date and (iii) the Affected
Lender shall cease to be a "Lender" as of such effective date.
SECTION 3. REPRESENTATIONS AND WARRANTIES
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To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, the Borrower hereby represents and warrants to the Agent and
each Lender that:
3.1 Financial Condition.
(a) The balance sheet of the Borrower as at December 31, 1998 and the
related statements of income and of cash flows for the fiscal year ended on
such date, reported on by Arthur Andersen LLP, copies of which have
heretofore been furnished to the Agent, are complete and present fairly the
financial condition of the Borrower as at such date, and the results of its
operations and its cash flows for the fiscal year then ended. All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout
the periods involved (except as approved by such accountants or Responsible
Officer, as the case may be, and as disclosed therein). The Borrower did
not have, at the date of the most recent balance sheet referred to above,
any material Guarantee Obligation, contingent liability or liability for
taxes, or any long-term lease (other than the Ground Leases, and other than
leases with respect to which the Borrower is landlord) or unusual forward
or long-term commitment, including, without limitation, any interest rate
or foreign currency swap or exchange transaction or other financial
derivative, which is not reflected in the foregoing statements or in the
notes thereto. During the period from December 31, 1998 to and including
the date hereof there has been no sale, transfer or other disposition by
the Borrower of any material part of its business or property and no
purchase or other acquisition of any business or property (including any
Capital Stock of any other Person) material in relation to the financial
condition of the Borrower at December 31, 1998.
(b) The pro forma balance sheet of the Borrower as at March 31, 1999,
certified by a Responsible Officer of the Borrower (the "Pro Forma Balance
Sheet"), a copy of which has been provided to the Agent, is the unaudited
balance sheet of the Borrower adjusted to give effect (as if such events
had occurred on such date) to (i) the making of Loans in an aggregate
principal amount of $47,000,000 and (ii) the payment of all fees and
expenses related to the foregoing transaction, as estimated in good faith
as of the date of the Pro Forma Balance Sheet. The Pro Forma Balance Sheet,
together with the notes thereto, presents fairly, on a pro forma basis, the
financial position of the Borrower as at March 31, 1999, assuming that the
events specified in the preceding sentence had actually occurred on such
date.
(c) The operating forecast and cash flow projections of the Borrower,
copies of which have heretofore been furnished to the Agent, were prepared
in good faith under the direction of a Responsible Officer of the Borrower.
3.2 No Change. (a) Since December 31, 1998 there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect, and (b) during the period from December 31, 1998 to and
including the date hereof no distributions have been declared, paid or made upon
the Capital Stock of the Borrower nor has any of the Capital Stock of the
Borrower been redeemed, retired, purchased
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or otherwise acquired for value by the Borrower, any Investor or any of their
respective Affiliates or Subsidiaries.
3.3 Existence; Compliance with Law. The Borrower (a) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
and (d) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. (a) The Borrower has
the power and authority, and the legal right, to make, deliver and perform the
Loan Documents to which it is a party and to borrow hereunder and has taken all
necessary action to authorize the borrowings on the terms and conditions of this
Agreement and any Notes and to authorize the execution, delivery and performance
of the Loan Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Borrower is a party, except as
may have been obtained or made and is in full force and effect. This Agreement
has been, and each other Loan Document to which it is a party will be, duly
executed and delivered on behalf of the Borrower. This Agreement constitutes,
and each other Loan Document to which it is a party when executed and delivered
will constitute, a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
(b) To the knowledge of Borrower, except as set forth on Schedule
3.4(b), the Properties and the use thereof by the Borrower or any tenant of
the Borrower comply in all material respects with (i) all applicable
federal, state and local laws, ordinances, building codes, rules and
regulations pertaining to zoning, building, subdivision, land use and
environmental matters, (ii) all special permits, variances and certificates
of occupancy, if any, issued by the New York City Planning Commission, the
New York City Board of Estimate, the New York City Council, the New York
City Landmarks Preservation Commission, the New York City Board of
Standards and Appeals, the New York City Building Department and the New
York City Fire Department, and (iii) other similar restrictions.
3.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents to which the Borrower is a party, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or material
Contractual Obligation of the Borrower and will not result in, or require, the
creation or imposition of any Lien on any
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of its or their respective properties or revenues pursuant to any such
Requirement of Law or material Contractual Obligation.
3.6 No Material Litigation. Except as set forth on Schedule 3.6, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or against any Property or any of its
other properties or revenues (a) with respect to any of the Loan Documents or
any of the transactions contemplated hereby or thereby, or (b) which could
reasonably be expected to have a Material Adverse Effect. All litigation, claims
and proceedings relating to a transaction proposed in 1995 by a group of Persons
organized by Samuel Zell for the refinancing of the mortgage loan made by RCPI
to RCP Associates and Rockefeller Center Properties (including without
limitation the actions captioned Zell/Merrill Lynch Real Estate Opportunity
Partners Limited Partnership III v. Rockefeller Center Properties, Inc., 96 Civ.
1445, United States District Court, Southern District of New York, and
Rockefeller Center Properties, Inc. v. Zell/Merrill Lynch Real Estate
Opportunity Partners Limited Partnership III and Equity Office Holdings, L.L.C.,
Index No. 106176/96, Supreme Court for the State of New York, New York County)
have been fully resolved and settled, all proceedings related thereto have been
dismissed with prejudice, any amounts required to be paid by the Borrower in
connection with any such settlements have been paid in full, and there are no
further obligations binding upon the Borrower in connection therewith.
3.7 No Default. The Borrower is not in default under or with respect to
any of its Contractual Obligations in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
3.8 Ownership of Property; Condition of Title; Leases Major Space
Leases and Major Retail Leases; Liens; Other Agreements.
(a) The Borrower has good and marketable fee or leasehold title to
each Property as set forth on Schedule 1.1(a); and the Borrower owns each
Property free and clear of all Liens, except those Liens described on
Schedule 3.8(a) hereof (the "Permitted Encumbrances"). The Properties
constitute all of the real property owned, leased or operated by the
Borrower as of the Closing Date. Schedule 1.1(a) accurately sets forth as
to each Property the nature of the Borrower's interest therein. As of the
date of the Rent Roll, none of the Properties is subject to any leases
other than the Leases described in the Rent Roll. No Person has any
possessory interest in any Property or right to occupy the same except
under and pursuant to the provisions of a Lease or the RGT
Telecommunications Agreement.
(b) The Rent Roll contains a complete list of all Leases in effect
with respect to the Properties as of the date thereof and the information
disclosed therein is true, accurate and complete in all material respects
as of such date.
(c) Except as noted on Schedule 3.8(c) the Borrower has not received
any written notice from any tenant claiming that the Borrower is in default
under any of the Scheduled Leases.
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(d) Schedule 3.8(d) annexed hereto is a summary of all contracts
affecting the Properties to which Borrower is a party (other than Leases,
Loan Documents, the Existing Loan Documents and the Property Management
Agreement) which require payments by the Borrower in excess of $250,000 per
annum, including without limitation, management, service and supply
agreements, all as in effect on the date of this Agreement (herein
collectively referred to as the "Material Service Contracts"), setting
forth, with respect to each of the Material Service Contracts, (i) the
names of the parties thereto, (ii) the service provided thereunder or the
subject matter thereof, (iii) the monthly payment or other rate of payment
payable thereunder as of the date of this Agreement and (iv) the
termination rights of the Borrower, if any. The copies of the Material
Service Contracts which were heretofore furnished by the Borrower to the
Agent or its counsel are true and complete copies thereof. As of the date
of this Agreement no amounts are delinquent (under customary trade terms)
under any Material Service Contract.
(e) Except as set forth in Schedule 3.8(e) annexed hereto, as of the
date of this Agreement there is no real property tax assessment pending or
affecting any Property.
(f) To Borrower's knowledge, the Borrower has all governmental
permits, licenses and approvals to occupy each Property as it is occupied
as of the date hereof, including, but not limited to, the Certificate of
Occupancy and such governmental permits, licenses and approvals for each
Property or the operation thereof are in full force and effect.
(g) The Condominium Regime is in full force and effect, the
condominium declaration therefor has been recorded in the Office of the
Register of New York County, and has not been amended, supplemented or
modified except as shown on Schedule 3.8(g). No assessment or unit charge
now delinquent thereunder by Borrower remains unpaid. Borrower has not
received any written notice of default from the Board of Managers under the
Condominium Regime.
(h) The Ground Leases are in full force and effect and have not been
amended, modified or supplemented in any way. Except as noted on Schedule
3.8(h), Borrower has no knowledge of any material default of Borrower under
the Ground Leases.
(i) Except as shown on Schedule 3.8(i), there are no Tenant
Improvement Obligations under any Leases in effect on the Closing Date
which have not been fully performed and paid for.
(j) Borrower has not assigned, sold, pledged, transferred or
hypothecated any Lease or any interest therein or any rents payable
thereunder.
(k) The Property Management Agreement is in full force and effect and
has not been amended, modified or supplemented. To Borrower's knowledge,
there are no defaults under the Property Management Agreement by either
party and there are no
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conditions that, with the passage of time or the giving of notice, or both,
would constitute defaults thereunder. Borrower has not received any written
notice from the Property Manager claiming that Borrower is in default under
the Property Management Agreement.
(l) The Expense Sharing Agreement is in full force and effect and has
not been amended, modified or supplemented. To Borrower's knowledge, there
are no defaults under the Expense Sharing Agreement by either party and
there are no conditions that, with the passage of time or the giving of
notice, or both, would constitute defaults thereunder. Borrower has not
received any written notice from any other party thereto claiming that
Borrower is in default under the Expense Sharing Agreement.
(m) Attached hereto as Schedule 3.8(m) is a true and complete schedule
of all brokerage agreements requiring payment of an amount in excess of
$100,000 to which the Borrower is a party as of the Closing Date.
3.9 Intellectual Property. The Borrower owns, or is licensed to use,
all trademarks, tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted except for
those the failure to own or license which could not reasonably be expected to
have a Material Adverse Effect (the "Intellectual Property"). No claim has been
asserted and is pending by any Person challenging or questioning the use by the
Borrower of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property. The use of such Intellectual Property by the
Borrower does not infringe on the rights of any Person, except for such claims
and infringements that, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
3.10 Taxes. The Borrower has filed or caused to be filed all tax
returns which, to the knowledge of the Borrower, are required to be filed and
has paid all taxes shown to be due and payable by the Borrower on said returns
or on any assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower). No tax Lien has been filed, and, to the knowledge of the
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
3.11 Federal Regulations. No part of the proceeds of any Loans will be
used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect, or for any purpose which violates, or which would be inconsistent
with, the provisions of the regulations of such Board of Governors.
3.12 ERISA. There is no "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA), whether or not
waived, in
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respect of any Plan as of the last day of the most recent fiscal year of such
Plan ended prior to the date hereof. No Reportable Event has occurred during the
five year period prior to the date on which this representation is made or
deemed made with respect to any Plan which would have a Material Adverse Effect.
Each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred
which has resulted in the imposition of a Lien in favor of the PBGC or a Plan
has arisen. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. No such Multiemployer Plan is in Reorganization or Insolvent. As of
the Closing Date, neither the Borrower nor any Commonly Controlled Entity has
any liability for post retirement benefits to be provided to their current and
former employees under Plans which are employee welfare benefit plans (as
defined in Section 3(1) of ERISA).
3.13 Investment Company Act; Other Regulations. The Borrower is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
3.14 Subsidiaries. Schedule 3.14 sets forth the name of each direct or
indirect Subsidiary of the Borrower, its form of organization, its jurisdiction
of organization, the total number of issued and outstanding shares or other
interests of Capital Stock thereof, the classes and number of issued and
outstanding shares or other interests of Capital Stock of each such class, the
name of each holder of Capital Stock thereof and the number of shares or other
interests of such Capital Stock held by each such holder and the percentage of
all outstanding shares or other interests of such class of Capital Stock held by
such holders. None of the Subsidiaries of the Borrower owns any material
property or engages in any operations except as set forth on Schedule 3.14.
3.15 Accuracy and Completeness of Information. (a) All factual
information, reports and other papers and data with respect to the Borrower and
the Properties (other than projections) furnished, and all factual statements
and representations made, to the Agent or the Lenders by the Borrower, or on
behalf of the Borrower, were, at the time the same were so furnished or made,
when taken together with all such other factual information, reports and other
papers and data previously so furnished and all such other factual statements
and representations previously so made, complete and correct in all material
respects, to the extent necessary to give the Agent and the Lenders true and
accurate knowledge of the subject matter thereof in all material respects, and
did not, as of the date so furnished or made, contain
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any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements contained therein not misleading in
light of the circumstances in which the same were made.
(b) No fact has occurred and is known to the Borrower which has or in
the future is reasonably likely (so far as the Borrower can reasonably
foresee) to have a Material Adverse Effect which has not been set forth in
the financial statements referred to in Section 3.1 or in such information,
reports, papers and data or otherwise disclosed to the Agent or the Lenders
prior to the Closing Date.
3.16 Labor Relations. To Borrower's knowledge, there is (a) no unfair
labor practice compliant pending or threatened against the Borrower before the
National Labor Relations Board which could reasonably be expected to have a
Material Adverse Effect and no grievance or arbitration proceeding arising out
of or under a collective bargaining agreement is so pending or threatened; (b)
no strike, labor dispute, slowdown or stoppage pending or threatened against the
Borrower; and (c) no union representation question existing with respect to the
employees of the Borrower and no union organizing activities are taking place
with respect to any thereof.
3.17 Insurance. The Borrower has, with respect to its properties and
business, insurance covering the risks, in the amounts, with the deductible or
other retention amounts, and with the carriers, disclosed on the insurance
certificates or other evidence of insurance delivered pursuant to Section
4.1(q), which insurance meets the requirements of Section 5.5 hereof as of the
Closing Date.
3.18 Solvency. On the Closing Date, after giving effect to the
borrowing of Loans in an aggregate principal amount of $47,000,000 (i) the
amount of the "present fair saleable value" of the assets of the Borrower will,
as of such date, exceed the amount of all "liabilities of the Borrower,
contingent or otherwise", as of such date, as such quoted terms are determined
in accordance with applicable federal and state laws governing determinations of
the insolvency of debtors, (ii) the present fair saleable value of the assets of
the Borrower will, as of such date, be greater than the amount that will be
required to pay the liabilities of the Borrower on its debts as such debts
become absolute and matured, (iii) the Borrower will not have, as of such date,
an unreasonably small amount of capital with which to conduct its business, and
(iv) the Borrower will be able to pay its debts as they mature. For purposes of
this Section 3.18, "debt" means "liability on a claim", "claim" means any (x)
right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured, and (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
3.19 Purpose of Loans. The proceeds of the Loans shall be used by the
Borrower to fund budgeted tenant work allowances and leasing commissions, to
fund capital improvements to the Properties, to fund scheduled amortization
payments of the Existing Loans under the Existing Senior Credit Agreement, and
for other general working capital
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purposes of the Borrower. None of the proceeds of the Loans shall be used to pay
any amounts in connection with any settlement, decree or judgment entered in
connection with any investigation, litigation or proceeding.
3.20 Environmental Matters. Except as set forth on Schedule 3.20:
(a) To the Borrower's knowledge and except as disclosed in any
environmental report delivered to the Agent by or on behalf of the Borrower
on or prior to the Closing Date, the Properties do not contain any
Materials of Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any Environmental Law except in
either case insofar as such violation or liability, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
(b) To the Borrower's knowledge and except as disclosed in any
environmental report delivered to the Agent by or on behalf of the Borrower
on or prior to the Closing Date, the Properties and all operations at the
Properties are in compliance, and have since July 17, 1996 been in
compliance, in all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties in
violation of any Environmental Law with respect to the Properties or the
business operated by the Borrower (the "Business") which could materially
interfere with the continued operation of the Properties or materially
impair the fair saleable value thereof.
(c) The Borrower has not received any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to
any of the Properties or the Business, nor does the Borrower have knowledge
or reason to believe that any such notice will be received or is being
threatened except insofar as such notice or threatened notice, or any
aggregation thereof, does not involve a matter or matters that is or are
reasonably likely to result in the payment of a Material Environmental
Amount.
(d) To the Borrower's knowledge, Materials of Environmental Concern
have not been transported or disposed of from the Properties in violation
of, or in a manner or to a location which could reasonably be expected to
give rise to liability under, any Environmental Law, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could reasonably be expected to give rise to liability under, any
applicable Environmental Law except insofar as any such violation or
liability referred to in this paragraph, or any aggregation thereof, is not
reasonably likely to result in the payment of a Material Environmental
Amount.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower is or is threatened to be named as
a party with respect to
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the Properties or the Business, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental
Law with respect to the Properties or the Business except insofar as such
proceeding, action, decree, order or other requirement, or any aggregation
thereof, is not reasonably likely to result in the payment of a Material
Environmental Amount.
(f) To the Borrower's knowledge, there has been no release or threat
of release of Materials of Environmental Concern at or from the Properties,
or arising from or related to the operations of the Borrower in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably give rise
to liability under Environmental Laws except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
3.21 Obligation to Convey. As of the Closing Date, there is no contract
or other obligation providing for or requiring the Borrower to convey (other
than lease) any interest in any of the Properties to any Person.
3.22 Certain Existing Indebtedness. (a) As of the Closing Date, (i) the
aggregate outstanding principal amount of the 14% Debentures is $75,000,000 and
(ii) the aggregate accreted amount with respect to all Zeros outstanding is
approximately $496,116,000. During the period from May 16, 1997 to and including
April 12, 1999, neither the 14% Debentures, nor any interest therein, has been
sold, assigned or otherwise transferred or amended (other than the amendment to
the 14% Debenture Purchase Agreement entered into as of the date hereof),
supplemented or otherwise modified. During the period from May 16, 1997 to and
including April 12, 1999, the Zeros Indenture has not been amended, supplemented
or otherwise modified.
(b) After giving effect to the execution and delivery of the Loan
Documents, no provision of the Zeros or the Zeros Indenture requires that
the Zeros shall be prepaid, redeemed, repurchased or defeased with any
portion of any proceeds of any sale, lease, assignment, transfer, pledge,
exchange or other disposition or hypothecation of any property of the
Borrower (including, without limitation, any proceeds received upon any
destruction, casualty or condemnation with respect to any such property).
3.23 Year 2000. The Borrower has (i) initiated a review and assessment
of all areas within its and each of its Subsidiaries' business and operations
that could be adversely affected by the Year 2000 Problem, (ii) developed a plan
and timeline for addressing the Year 2000 Problem on a timely basis, and (iii)
to date, implemented that plan in accordance with that timetable. Based on the
foregoing, the Borrower believes that all computer applications that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 in all
material respects ("Year 2000 Compliant"), except to the extent that a failure
to do so would not reasonably be expected to have a Material Adverse Effect.
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SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each Lender to make
the initial Loan requested to be made by it is subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan on the Closing
Date, of the following conditions precedent:
(a) Loan Documents. The Agent shall have received:
(i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender,
(ii) for the account of each Lender a Note conforming to the
requirements hereof and executed by a duly authorized officer of the
Borrower,
(iii) the Intercreditor Agreement, executed and delivered by a
duly authorized officer or attorney-in-fact of each party thereto,
with a counterpart or a conformed copy for each Lender, and
(iv) the Limited Recourse Agreement, executed and delivered by a
duly authorized officer of each party thereto and notarized or
otherwise duly legalized with respect to any party thereto which is a
natural person, with a counterpart or a conformed copy for each
Lender.
(b) Related Agreements. The Agent shall have received a certificate of
the Borrower certifying that the copies of the Zeros Indenture, the 14%
Debentures Purchase Agreement, the Property Management Agreement, the
Condominium Documents and the Leases listed on Schedule 4.1(b) (such
Leases, the "Scheduled Leases") provided to, or made available for
inspection by, the Agent by or on behalf of the Borrower on or prior to the
Closing Date were complete and correct.
(c) Initial Borrowing Certificate. The Agent shall have received, with
a counterpart for each Lender, a certificate of the Borrower, dated the
Closing Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments, satisfactory in form and substance to the
Agent, executed by the President or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.
(d) Proceedings of the Borrower. The Agent shall have received a copy
of the resolutions, in form and substance satisfactory to the Agent, of the
Operating Committee of the Borrower authorizing (i) the execution, delivery
and performance of this Agreement and the other Loan Documents to which it
is a party, and (ii) the borrowings contemplated hereunder, certified by
the Secretary or an Assistant Secretary of the Borrower as of the Closing
Date, which certificate shall be in form and substance satisfactory to the
Agent and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
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(e) Borrower Incumbency Certificate. The Agent shall have received,
with a counterpart for each Lender, a certificate of the Borrower, dated
the Closing Date, as to the incumbency and signature of the officers of the
Borrower executing any Loan Document satisfactory in form and substance to
the Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Borrower.
(f) Proceedings of the Other Loan Parties. The Agent shall have
received a copy of the resolutions, in form and substance satisfactory to
the Agent, of the Board of Directors (or other governing body) of each Loan
Party other than the Borrower and other than any Loan Party who is a
natural person authorizing the execution, delivery and performance of the
Loan Documents to which it is a party, certified by the Secretary or an
Assistant Secretary of such Loan Party as of the Closing Date, which
certificate shall be in form and substance satisfactory to the Agent and
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(g) Loan Party Incumbency Certificates. The Agent shall have received,
with a counterpart for each Lender, a certificate of each Loan Party other
than the Borrower and other than any Loan Party who is a natural person,
dated the Closing Date, as to the incumbency and signature of the officers
of such Loan Party executing any Loan Document, satisfactory in form and
substance to the Agent, executed by the President or any Vice President and
the Secretary or any Assistant Secretary of such Loan Party.
(h) Organizational Documents. The Agent shall have received true and
complete copies of the trust agreement and the certificate of trust or
other similar governing or organization documents of the Borrower,
certified as of the Closing Date as complete and correct copies thereof by
the Secretary or an Assistant Secretary of the Borrower.
(i) Good Standing Certificates. The Agent shall have received, with a
copy for each Lender, certificates dated as of a recent date from the
Secretary of State or other appropriate authority, evidencing the good
standing of the Borrower and of each other Loan Party for which such
certificates are available (i) in the jurisdiction of its organization and
(ii) in each other jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires it to qualify as a foreign
Person except, as to this subclause (ii), where the failure to so qualify
could not have a Material Adverse Effect.
(j) Fees and Expenses. The Agent shall have received the fees to be
received on the Closing Date referred to in the Fee Letter together with
all fees and expenses required to be paid pursuant to Section 9.5 hereof.
(k) Legal Opinions. The Agent shall have received, with a counterpart
for each Lender, the executed legal opinion of Sullivan & Cromwell, counsel
to the Borrower and certain of the Loan Parties, substantially in the form
of Exhibit D, and
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from other counsel to the other Loan Parties reasonably acceptable to the
Agent, in form and substance reasonably satisfactory to the Agent. Such
legal opinions shall cover such other matters incident to the transactions
contemplated by this Agreement as the Agent may reasonably require.
(l) Lien Searches. The Agent shall have received the results of a
recent search by a Person satisfactory to the Agent, of the Uniform
Commercial Code, judgment and tax lien filings which may have been filed
with respect to personal property of the Borrower, and the results of such
search shall be satisfactory to the Agent.
(m) Engineer's Reports. The Agent and each Lender shall have received
a copy of each of the Engineer's Reports, which Engineer's Reports shall be
in form and substance satisfactory to the Agent.
(n) Appraisal. The Agent shall have received a recent appraisal of the
Properties, performed by a Person satisfactory to the Agent in its
discretion and otherwise in form and substance satisfactory to the Agent,
which appraisal shall, among other things, disclose a value of the
Properties of not less than $1,250,000,000 and a Debt to Value Ratio
(determined on a pro forma basis as of February 2000 assuming the borrowing
of Loans in the full amount of the Commitments, an aggregate outstanding
principal amount of 14% Debentures equal to $75,000,000 and an aggregate
accreted principal amount of Zeros equal to approximately $540,652,000) as
of the date of such appraisal of not greater than 65%.
(o) Insurance. The Agent shall have received evidence in form and
substance satisfactory to it that all of the requirements of Section 5.5
hereof shall have been satisfied.
(p) Interest Rate Protection. The Agent shall have received evidence
in form and substance satisfactory to it that the Borrower shall have
obtained an interest rate swap, cap, collar or other interest rate hedge
with respect to an aggregate principal amount of the Loans equal to the
Maximum Allowable Loan Balance set forth in Schedule 2.2, (a) fixing for
the Eurodollar Base Rate at not more than 3.0% above the Eurodollar Rate as
in effect on the Closing Date or (b) containing such terms as may be agreed
to by the Borrower and the Agent and are standard and customary for
transactions of this kind.
(q) Estoppel Certificates. The Borrower shall have used commercially
reasonable efforts to provide the Agent with estoppel certificates, in form
and substance satisfactory to the Agent, from each tenant under the
Scheduled Leases, except with respect to any of such Leases which do not by
their terms require the tenant thereunder to provide estoppel certificates.
(r) Budget. The Agent shall have received from the Borrower an initial
budget outlining the uses of proceeds of Loans, which shall include,
without limitation,
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tenant work allowances and lease commissions, in form and substance
satisfactory to the Agent.
(s) Existing Senior Credit Agreement. The Existing Senior Credit
Agreement shall have been amended to, among other things, permit this
Agreement and the transactions contemplated hereby, such amendment to be
substantially in the form of Exhibit F hereto.
4.2 Conditions to Each Loan. The agreement of each Lender to make any
Loan requested to be made by it on any date (including, without limitation, its
initial Loan) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents shall
be true and correct in all material respects on and as of such date as if
made on and as of such date, other than any such representations or
warranties which by their terms relate solely to another earlier date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Use of Proceeds. The Agent shall have received a certificate of a
Responsible Officer of the Borrower specifying in reasonable detail the
anticipated use of proceeds of the requested Loans, and if requested by the
Agent such supporting documentation and other evidence as the Agent may
reasonably require to verify that such use of proceeds is consistent with
the provisions of this Agreement and the other Loan Documents.
(d) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Agent, and the Agent
shall have received such other documents and legal opinions in respect of
any aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this Section 4.2 have been satisfied (other than, with respect to Section 4.2(c)
and (d), to the extent the satisfaction of such conditions are dependent upon
the subjective satisfaction of the Agent with the matters referenced on such
paragraphs).
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the Commitments
remain in effect or any amount is owing to any Lender or the Agent hereunder or
under any other Loan Document, the Borrower shall:
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5.1 Financial Statements. Furnish to the Agent:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the balance sheet of the
Borrower as at the end of such year and the related statements of income
and retained earnings and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous year, reported
on without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Arthur Andersen LLP
or other independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited balance sheet of the Borrower as at the
end of such quarter and the related unaudited statements of income and
retained earnings and of cash flows of the Borrower for such quarter and
the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
(c) all such financial statements shall be complete and correct in all
material respects and shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Agent:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 5.1(a) and (b), (A) a certificate of a Responsible
Officer (i) stating that such Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate, (ii)
showing in detail the calculations supporting such Officer's certification
of the Borrower's compliance with the requirements of Sections 6.6 and 6.7,
and (iii) specifying the percentage of the capital expenditures budgeted
for such period in the Capital Budget therefor which were actually expended
during such period, and (B) a rent roll for the Properties showing in
tabular form, in substantially the same format and detail as the Rent Roll
delivered prior to the Closing Date, all Leases for the Properties and the
base and additional rent under such Leases during such period;
(c) within five days after the final acceptance thereof by the
Borrower, but in any event not later than 30 days after the first day of
the fiscal year to which the
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same relate, the Operating Budget, Capital Improvement Budget and Leasing
Guidelines (as such terms are defined in Section 3.1(c) of the Property
Management Agreement) for each fiscal year of the Borrower which were
provided by the Property Manager pursuant to Section 3.1(c) of the Property
Management Agreement, and any modification to any thereof (such Capital
Improvements Budget for such fiscal year, as finally accepted by the
Borrower in accordance to Section 3.1 of the Property Management Agreement
or if not accepted the latest version submitted to the Borrower, being
referred to herein as the "Capital Budget" for such fiscal year);
(d) within five Business Days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(e) during the month of May in each calendar year, certificates of
insurance or other evidence of insurance satisfactory to the Agent with
respect to the insurance maintained by the Borrower in accordance with
Section 5.5 of this Agreement;
(f) (i) at any time any Major Space Lease or Major Retail Lease shall
be executed and delivered a copy of such Major Space Lease or Major Retail
Lease and a summary of the economic terms thereof, and (ii) at any time a
Major Space Lease or Major Retail Lease shall be modified in any material
respect or terminated, or any notice of default shall have been received by
the Borrower with respect thereto (which default shall not have been
cured), a description in reasonable detail of such modification,
termination or default;
(g) if the Borrower elects to extend the Original Maturity Date
pursuant to Section 2.6, not earlier than 90 days nor later than 30 days
prior to the Original Maturity Date, a recent appraisal of the Properties,
in form and by an appraiser satisfactory to and engaged by the Agent,
setting forth the Fair Market Values of the Properties as of a date no
earlier than 12 months prior to the Original Maturity Date; provided, that
if the Borrower shall not have notified the Agent of its intention to
request or not request an extension of the Original Maturity Date on or
prior to the date 90 days before the Original Maturity Date, the Agent may
engage an appraiser to commence the appraisal required by this Section
5.2(g) (and the Agent agrees to notify the Borrower prior to any such
engagement), and, unless both (x) the Borrower shall have irrevocably
notified the Agent of its election not to extend the Original Maturity Date
pursuant to Section 2.6 prior to the Agent's engagement of such appraiser
and (y) there is no Event of Default continuing at any time from the time
of such irrevocable notification by the Borrower to and including the
Original Maturity Date, the fees and expenses of such appraiser in
connection therewith shall be for the account of the Borrower, whether or
not the Borrower elects to extend the Original Maturity Date pursuant to
Section 2.6;
(h) on the last day of each Test Period, a calculation, in such form
and in such detail as the Agent may reasonably require and certified by a
Responsible Officer of the Borrower as being true and correct based upon
the best information then
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available to the Borrower, setting forth the Borrower's estimated
calculation of Debt Service Coverage Ratio for such Test Period (with
respect to any such Test Period, the "Estimated Calculation");
(i) if requested in writing by the Agent, not more than 30 days after
the end of each year or if longer as soon as reasonably practicable after
the same becomes available to the Borrower, an overview report of the
Manhattan office market for such year (which the Agent and the Lenders
acknowledge is anticipated to be prepared by a Person other than the
Borrower), setting forth basic New York City economic factors, and
summaries (by building class, submarket and overall market) of market lease
concessions, market rental rates, leasing activity, net absorption, market
vacancy and such other information about the Manhattan office market for
such year as is customarily published in standard reports generally
accepted in the Manhattan office leasing industry; and
(j) promptly, such additional financial and other information as the
Agent, at the direction of any Lender, may from time to time reasonably
request.
5.3 Payment of Obligations. (a) Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower, as the case may be, or except to the extent that the failure to so
pay, discharge or satisfy such obligations would not result in a Material
Adverse Effect.
(b) Without limiting the generality of the foregoing, (i) pay all
taxes (including any component of maintenance charges comprised of taxes),
assessments, water rates and sewer rents, now or hereafter levied or
assessed or imposed against any Property or any part thereof and all ground
rents, other governmental impositions, and other charges, including,
without limitation, vault charges and license fees for the use of vaults,
chutes and similar areas adjoining any such Property, prior to the date any
of the same become delinquent; (ii) pay all maintenance charges (other than
those covered by subclause (i) of this Section 5.3(b)) prior to the date
any of the same become delinquent, and (iii) promptly cause to be paid and
discharged any lien or charge whatsoever which may be or become a Lien or
charge including, without limitation, any mechanic's lien against any
Property; and promptly pay for all utility services provided to the
Properties; except, in each case, where the amount or validity thereof is
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books
of the Borrower or other security therefor has been provided as required by
applicable law.
5.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business except as otherwise
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permitted pursuant to Section 6.4; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith would
not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all property useful
and necessary in its business in good working order and condition.
(b) The Borrower will keep each Property insured as follows:
(i) "All Risk" property insurance, including sprinkler leakage in an
amount sufficient to prevent the Borrower from becoming a co-insurer of any
loss under the terms of the policy but in no event less than the then full
replacement value of such Property;
(ii) rental value insurance in an amount equal to not less than one
year's gross rent from such Property;
(iii) steam boiler and machinery breakdown direct damage insurance and
third-party liability coverage (if not covered under the comprehensive
general liability policy), with full comprehensive coverage on a repair and
replacement cost basis, for all boilers and machinery which form a part of
such Property, including rental value insurance in connection therewith in
accordance with subsection (ii) of this Section 5.5(b) above;
(iv) comprehensive general liability insurance with respect to all the
Properties in an amount not less than $10,000,000 (or such higher amount as
the Agent may from time to time require) combined single limit for bodily
injury and property damage; such insurance shall include premises liability
insurance, blanket contractual liability insurance (during the period of
any construction or restoration work at any Property) and personal injury
liability insurance;
(v) during any period of construction or restoration of such Property,
a policy or policies of builder's risk coverage written on a completed
value basis insuring against such risks (including, without limitation,
fire and extended coverage, collapse of such Property) as the Agent may
request, in form and substance acceptable to the Agent;
(vi) a policy or policies of workers' compensation insurance as
required by workers' compensation insurance laws subject to the statutory
limits of the State of New York in respect of any work or other operations
on, about or in connection with all the Properties and covering all
employees of the Borrower and employer's liability insurance coverage of
not less than $5,000,000; and
(vii) such other insurance with respect to such Property as the Agent
from time to time may reasonably require and which is customary to be
required by institutional lenders for properties of a type similar to the
Properties.
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(c) All policies of insurance required under this Section 5.5 shall be
issued by companies having a claims paying ability determined by A. M. Best
Company of A or better and which are licensed to do business in the State
of New York or with such other companies satisfactory to the Agent. The
Agent shall be furnished with a duplicate original of each policy required
to be provided by the Borrower hereunder, which policy shall provide that
no cancellation, material change or reduction thereof shall be effective
until at least ten (10) Business Days after receipt by the Agent of written
notice thereof. At least ten (10) Business Days prior to expiration of any
policy required to be provided by the Borrower hereunder, the Borrower
shall furnish the Agent (without notice or demand by the Agent) with a
duplicate original of such renewal policy replacing the policy so expiring;
provided, however, if such renewal policy is not yet available, the
Borrower shall provide the Agent with an insurance certificate or
certificates thereof executed by the insurer or its authorized agent
evidencing the insurance maintained under such policy which shall be
acceptable to the Agent on an interim basis until the duplicate original
thereof is available. The Borrower shall furnish the Agent receipts for the
payment of premiums on such insurance policies or other evidence of such
payment satisfactory to the Agent. In the event that the Borrower does not
deposit with the Agent a new duplicate original policy of insurance with
evidence of payment of premiums thereon at least ten (10) Business Days
prior to the expiration of any expiring policy, then the Agent may, but
shall not be obligated to, procure such insurance and pay the premiums
therefor, and the Borrower agrees to repay to the Agent the premiums
thereon promptly on demand, together with interest thereon at the rate per
annum which would be applicable to Base Rate Loans under Section 2.7(c) and
the same shall be part of the Obligations.
(d) The Borrower may effect coverage under this Section 5.5 under a
blanket insurance policy satisfactory to the Agent, provided that (i) any
such policy of blanket insurance shall specify therein, or the insurer
under such policy shall certify to the Agent, (A) the maximum amount of the
total insurance afforded by the blanket policy allocated to such Property,
and (B) any sublimits in such blanket policy applicable to such Property,
which amounts shall not be less than the limits required pursuant to the
provisions of this Section 5.5; (ii) any such policy of blanket insurance
shall comply in all respects with the other provisions of this Section 5.5;
and (iii) the protection afforded under any policy of blanket insurance
hereunder shall be no less than that which would have been afforded under a
separate policy or policies relating only to such Property.
(e) The Borrower shall not take out separate insurance concurrent in
form or contributing in the event of loss with the insurance required under
this Section 5.5 unless (i) the policies are submitted to the Agent for its
approval; and (ii) the insurers thereunder and the terms thereof are not
unreasonably disapproved of by the Agent within 10 Business Days of such
submission. The Borrower shall notify the Agent thirty (30) days before any
such separate insurance is taken out and shall furnish the Agent with
duplicate originals of the policy or policies or certificate or
certificates of insurance executed by the insurer or its authorized agent
with respect thereto, in the
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same manner as provided in subsection (c) of this Section 5.5 with respect
to insurance required to be maintained hereunder.
(f) For purposes of this Section, the term "full replacement value"
shall mean the actual cost of replacing the property in question, exclusive
of the cost of excavations, foundations and footings, as determined from
time to time (but not less often than once every calendar year) by the
insurance company or companies holding such insurance or by an appraiser,
engineer, architect or contractor proposed by the Borrower and approved by
said company or companies and the Agent.
(g) No approval by the Agent of any insurer shall be construed to be a
representation, certification or warranty of its solvency and no approval
by the Agent as to the amount, type and/or form of any insurance shall be
construed to be a representation, certification or warranty of its
sufficiency.
5.6 Damage, Destruction, Condemnation. (a) In the event of any damage
to or loss or destruction of any Property, the Borrower shall (i) promptly
notify the Agent of such event and take such steps as shall be necessary to
preserve any undamaged portion of such Property and (ii) if no Event of Default
has occurred and is continuing, at the Borrower's election (subject to the
requirements of clause (b) of this Section 5.6), or if an Event of Default has
occurred and is continuing, at the Agent's election, either (x) commence and
diligently pursue to completion the restoration, replacement and rebuilding of
such Property as nearly as possible to its value, condition and character
immediately prior to such damage, loss or destruction and in accordance with
plans and specifications reasonably approved by the Agent, and apply the excess,
if any, of the Net Proceeds of any insurance award over the amount required to
be applied to the Existing Loans pursuant to Section 5.6(a) of the Existing
Senior Credit Agreement thereto, or (y) apply the excess, if any, of the Net
Proceeds of any insurance award over the amount required to be applied to the
Existing Loans pursuant to Section 5.6(a) of the Existing Senior Credit
Agreement to prepay the Loans (without premium or penalty).
(b) In the event that any portion of any Property is so damaged,
destroyed or lost, and such damage, destruction or loss is covered, in
whole or in part, by insurance described in Section 5.5, then, (i) if no
Event of Default has occurred and is continuing and the amount of Net
Proceeds received (or reasonably anticipated by the Borrower to be
received) in connection with such damage, destruction or loss is less than
$50,000,000, then the Borrower may retain such Net Proceeds and, at the
Borrower's option, apply such Net Proceeds to the restoration, replacement
or rebuilding, in whole or in part, of the portion of such Property so
damaged, destroyed or lost or to the prepayment of the Existing Loans and,
to the extent that the Existing Loans have been paid in full, the Loans,
provided, however, that the Borrower shall be required to apply the excess,
if any, of such Net Proceeds over the amount required to be applied to the
Existing Loans pursuant to Section 5.6(b) of the Existing Senior Credit
Agreement to the prepayment of the Loans (x) if the Borrower shall have
failed to commence the restoration, replacement or rebuilding, in whole or
in part, of the portion of such Property so damaged, destroyed or lost
within six months following the receipt of such Net Proceeds or (y) if the
Borrower shall cease to be diligently continuing such
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restoration, replacement or rebuilding, in the case of each of (x) and (y),
subject to force majeure; or (ii) if no Event of Default has occurred and
is continuing and the amount of Net Proceeds received (or reasonably
anticipated by the Borrower to be received) in connection with such damage,
destruction or loss is $50,000,000 or greater, then the Borrower shall
cause the excess, if any, of such Net Proceeds over the amount required to
be applied to the Existing Loans pursuant to Section 5.6(b) of the Existing
Senior Credit Agreement to be deposited in a segregated account at a bank
(which need not be a Lender) selected by the Borrower, and the Borrower
hereby covenants and agrees that the excess, if any, of such Net Proceeds
over the amount required to be applied to the Existing Loans pursuant to
Section 5.6(b) of the Existing Senior Credit Agreement shall be withdrawn
from such segregated account and applied solely for the purpose of, and in
the amounts necessary to, make required payments in connection with the
restoration, replacement or rebuilding, in whole or in part, of the portion
of such Property so damaged, destroyed or lost or to the prepayment of the
Loans; provided, however, that the Borrower shall be required to apply the
excess, if any, of such Net Proceeds over the amount required to be applied
to the Existing Loans pursuant to Section 5.6(b) of the Existing Senior
Credit Agreement to the prepayment of the Loans (x) if the Borrower shall
have failed to commence the restoration, replacement or rebuilding, in
whole or in part, of the portion of such Property so damaged, destroyed or
lost within six months following the receipt of such Net Proceeds or (y) if
the Borrower shall cease to be diligently continuing such restoration,
replacement or rebuilding, in the case of each of (x) and (y), subject to
force majeure.
(c) The Borrower, promptly upon obtaining knowledge of any pending or
threatened institution of any proceedings for the condemnation of any
Property, or any part or interest therein, or of any right of eminent
domain, or of any other proceedings arising out of injury or damage to or
decrease in the value of any Property (including a change in grade of any
street), or any part thereof or interest therein, will notify the Agent of
the threat or pendency thereof. The Borrower shall, at its expense,
diligently prosecute any such proceedings. In the event of any condemnation
of any Property or any part or interest therein or any similar event with
respect thereto, if no Event of Default has occurred and is continuing, at
the Borrower's option (subject to the requirements of clause (d) of this
Section 5.6), and if an Event of Default has occurred and is continuing, at
the Agent's option, the Borrower shall either (x) commence and diligently
pursue to completion the replacement of such Property as nearly as possible
to its value, condition and character immediately prior to such
condemnation or similar event in accordance with plans and specifications
reasonably approved by the Agent, and apply the excess, if any, of the Net
Proceeds of any award over the amount required to be applied to the
Existing Loans pursuant to Section 5.6(c) of the Existing Senior Credit
Agreement thereto, or (y) apply the excess, if any, of the Net Proceeds of
any award received by the Borrower over the amount required to be applied
to the Existing Loans pursuant to Section 5.6(c) of the Existing Senior
Credit Agreement to prepay the Loans (without premium or penalty).
(d) In the event of any condemnation of any Property or any part or
interest therein or any similar event with respect thereto, then, (i) if no
Event of Default has
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occurred and is continuing and the amount of Net Proceeds received (or
reasonably anticipated by the Borrower to be received) in connection with
such condemnation or similar event is less than $50,000,000, then the
Borrower may retain such Net Proceeds and, at the Borrower's option, apply
such Net Proceeds to the replacement, in whole or in part, of such Property
or such part thereof so condemned or to the prepayment of the Existing
Loans and, to the extent the Existing Loans have been paid in full, the
Loans, provided, however, that the Borrower shall be required to apply the
excess, if any, of such Net Proceeds over the amount required to be applied
to the Existing Loans pursuant to Section 5.6(d) of the Existing Senior
Credit Agreement to the prepayment of the Loans (x) if the Borrower shall
have failed to commence the replacement of such Property or such part
thereof so condemned within six months following the receipt of such Net
Proceeds or (y) if the Borrower shall cease to be diligently continuing
such replacement, in the case of each of (x) and (y), subject to force
majeure; or (ii) if no Event of Default has occurred and is continuing and
the amount of Net Proceeds received (or reasonably anticipated by the
Borrower to be received) in connection with such condemnation or similar
event is $50,000,000 or greater, then the Borrower shall cause the excess,
if any, of such Net Proceeds over the amount required to be applied
pursuant to Section 5.6(d) of the Existing Senior Credit Agreement to be
deposited in a segregated account at a bank (which need not be a Lender)
selected by the Borrower, and the Borrower hereby covenants and agrees that
the excess, if any, of such Net Proceeds over the amount required to be
applied pursuant to Section 5.6(d) of the Existing Senior Credit Agreement
shall be withdrawn from such segregated account and applied solely for the
purpose of, and in the amounts necessary to, make required payments in
connection with the replacement of such Property or such part thereof so
condemned or to prepayment of the Loans, provided, however, that the
Borrower shall be required to apply the excess, if any, of such Net
Proceeds over the amount required to be applied pursuant to Section 5.6(d)
of the Existing Senior Credit Agreement to the prepayment of the Loans (x)
if the Borrower shall have failed to commence the replacement of such
Property or such part thereof so condemned within six months following the
receipt of such Net Proceeds or (y) if the Borrower shall cease to be
diligently continuing such replacement, in the case of each of (x) and (y),
subject to force majeure.
(e) Notwithstanding any condemnation, taking or other proceeding
referred to in this Section causing injury to or decrease in value of any
Property (including a change in grade of any street), or any interest
therein, the Borrower shall continue to pay and perform the Obligations as
provided herein. Any reduction in the Obligations resulting from an
application of condemnation proceeds or awards shall be deemed to take
effect only on the date of receipt by the Agent of such proceeds or awards
and application against the Obligations.
5.7 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in relation
to its business and activities; and permit representatives of the Agent or any
Lender to visit and inspect any of its properties and examine and make abstracts
from any of its books and records upon reasonable notice and
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during normal business hours to discuss the business, operations, properties and
financial and other condition of the Borrower with officers of the Borrower and
with its independent certified public accountants.
5.8 Notices. Promptly give notice to the Agent and, in the case of
clauses (a) and (g), to each Lender, of:
(a) the occurrence of any Default or Event of Default;
(b) any event of default under any Contractual Obligation of the
Borrower which, if not cured, could reasonably be expected to have a
Material Adverse Effect;
(c) any Release at least fifteen (15) Business Days prior to the
anticipated date of effectiveness of such Release, any such notice to
include a calculation in reasonable detail of the Release Price with
respect to the Property for which such Release is so requested;
(d) any Restricted Payment to any Investor or other equity holder of
the Borrower at least ten (10) Business Days prior to the anticipated date
of such Restricted Payment, such notice to be accompanied by a certificate
of a Responsible Officer setting forth in reasonable detail the
calculations showing that such Restricted Payment is permitted under
Section 6.6(a);
(e) (i) any litigation or proceeding affecting the Borrower or any
Property in which the amount involved is $5,000,000 or more and not covered
by insurance or in which injunctive or similar relief is sought, (ii) any
judgment rendered against the Borrower or affecting any Property involving
a liability (to the extent not paid or covered by insurance) of $1,000,000
or more, (iii) any written decisions, dispositions of pleadings, dismissal
or joinder of parties, or other material developments in the action
captioned In re Rockefeller Center Properties, Inc. Securities Litigation,
U.S. District Court, District of Delaware, Consolidated Civ. A. No. 96-543
or any other related litigation or any civil or criminal litigation,
proceeding or investigation arising therefrom or arising from or relating
in whole or in part to any claim that there was an alleged misstatement or
omission in the RCPI Proxy Disclosure (as defined in the Limited Recourse
Agreement) and (iv) any denial of coverage by any insurance company of
claims arising out of the Rockefeller Center Properties litigation referred
to in clause (iii) of this Section 5.8(e) or any other civil or criminal
litigation or proceeding referred to in such clause (iii);
(f) the following events, as soon as possible and in any event within
30 days after the Borrower knows thereof: (i) the occurrence of any
Reportable Event with respect to any Plan (other than such a Reportable
Event for which the 30-day notice period is waived), a failure to make any
required contribution to a Plan which would give rise to a Lien in favor of
such Plan under Section 302(f) of ERISA, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any
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Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any
Plan; and
(g) any change, development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
5.9 Environmental Laws. (a) Comply with, and use commercially
reasonable efforts to cause compliance by all tenants and subtenants, if any,
with, all applicable Environmental Laws and obtain and comply in all material
respects with and maintain, and use commercially reasonable efforts to cause all
tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
5.10 Property Manager. Cause the Properties to be managed at all times
pursuant to the Management and Leasing Agreement, dated as of July 10, 1996,
between Borrower and Tishman (as amended, supplemented or otherwise modified in
accordance with Section 6.9, the "Property Management Agreement"), provided
that, upon the prior written request of the Borrower received by the Agent at
least 30 days prior to the requested resignation or removal of the incumbent
Property Manager, the Property Manager may resign or be removed if such Property
Manager is immediately thereupon replaced by another Person reasonably
acceptable to the Agent. Upon such replacement as provided herein and the
assumption by such Person of the obligations of the Property Manager under the
Property Management Agreement, such Person shall be deemed the Property Manager
for all purposes of this Agreement.
5.11 Condominium Documents; Expense Sharing Agreement. Comply with the
Condominium Documents and Expense Sharing Agreement in all material respects.
5.12 Asbestos. With respect to any friable asbestos or substance
containing asbestos currently present in the any Property, the Borrower, at the
Borrower's expense, shall promptly comply with and shall use commercially
reasonable efforts to cause all tenants of each Property to comply with all
present and future applicable federal, state or local laws, rules, regulations
or orders relating to asbestos, friable asbestos and asbestos containing
materials, or to the continued presence at such Property or the removal from
such Property and disposal of such asbestos, friable asbestos and asbestos
containing materials. In the event any asbestos, friable asbestos or asbestos
containing material is discovered at any Property, the Borrower shall obtain a
comprehensive asbestos report prepared by a licensed engineer or asbestos
consultant acceptable to the Agent describing the form, extent, location and
condition
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of such asbestos and recommending methods of removal or abatement. The Borrower
shall promptly comply at its sole cost and expense with the recommendations
contained in such report, such compliance to be performed in accordance with all
applicable federal, state and local laws, statutes, rules and regulations. The
Borrower shall indemnify the Agent and each Lender and hold harmless the Agent
and each Lender from and against all loss, cost, damage and expense (including,
without limitation, attorneys' fees and costs incurred in the investigation,
defense and settlement of claims) that the Agent or any Lender may incur as a
result of or in connection with the assertion against the Agent or any Lender of
any claim relating to the presence or removal of any asbestos substance referred
to in this section, or compliance with any federal, state or local laws, rules,
regulations or orders relating thereto, excepting only those arising out of the
Agent's or the Lenders' gross or willful negligence or any action taken
following assumption of control over the property by the Agent or the Lenders
other than in response to a pre-existing violation of Environmental Laws. The
obligations and liabilities of the Borrower under this Section 5.12 shall
survive full payment of the Loans and all other amounts payable hereunder.
5.13 Estoppel Certificates. For a period of 90 days following the
Closing Date, diligently seek to obtain any estoppel certificates with respect
to any Scheduled Leases described in Section 4.1(s)(ii) as to which estoppel
certificates were not delivered to the Agent on the Closing Date.
5.14 Year 2000 Procedures. Promptly notify the Agent in the event that
the Borrower discovers or determines that any computer application (including
those of its suppliers, vendors and customers) that is material to its or any of
its Subsidiaries' business and operations will not be Year 2000 Compliant in all
material respects.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any of the Commitments
remain in effect or any amount is owing to any Lender or the Agent hereunder or
under any other Loan Document, the Borrower shall not, nor shall it permit any
of its subsidiaries, to:
6.1 Limitation on Indebtedness and Hedging Obligations. Create, incur,
assume or suffer to exist any Indebtedness or Hedging Obligations, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) the 14% Debentures outstanding on the date hereof;
(c) the Zeros outstanding on the date hereof;
(d) Indebtedness of the Borrower and any of its Subsidiaries incurred
to finance the acquisition of fixed or capital assets (whether pursuant to
a loan, a Financing Lease or otherwise) in an aggregate principal amount
not exceeding as to the Borrower and its Subsidiaries $5,000,000 at any
time outstanding, provided, however, that in no event shall the amount of
Indebtedness permitted pursuant to this Section
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6.1(d), together with the aggregate amount of Indebtedness permitted by
Section 6.1(g) and 6.1(h), exceed $25,000,000;
(e) Indebtedness and Hedging Obligations outstanding on the
date hereof and listed on Schedule 6.1;
(f) the Hedging Obligations under the agreement required
pursuant to Section 4.1(p);
(g) current trade liabilities incurred in the ordinary course
of business or in connection with tenant improvements or capital
expenditures and payable in accordance with customary terms, in an
aggregate amount, together with the aggregate principal amount of
Indebtedness permitted pursuant to Sections 6.1(d) and 6.1(h), not to
exceed $25,000,000 at any one time outstanding;
(h) additional Indebtedness of the Borrower in an aggregate
principal amount at any time outstanding not to exceed $1,000,000,
provided, however, that in no event shall the additional Indebtedness
permitted pursuant to this Section 6.1(h), together with the aggregate
amount of Indebtedness permitted pursuant to Sections 6.1(d) and
6.1(g), exceed $25,000,000; and
(i) Indebtedness of the Borrower under the Existing Senior
Credit Agreement.
6.2 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet delinquent or which have been
bonded and are being contested in good faith by appropriate
proceedings;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 10 days or
which have been bonded, if required, and are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) Permitted Encumbrances;
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(f) other easements, rights-of-way, restrictions, defects or
irregularities in title and other similar title matters not, in any
material respect, interfering with the operation, use or value of any
Property;
(g) Liens arising from tenant improvements; provided that such
Liens are either bonded or released within thirty (30) days and the
aggregate amount secured by such Liens does not exceed $500,000 at any
one time; and
(h) other non-consensual Liens filed against the Properties
which aggregate not more than $5,000,000 unless such Liens are
discharged of record by the posting of a bond pursuant to requisite
court proceedings or by payment within 45 days.
6.3 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except Guarantee Obligations in
existence on the date hereof and listed on Schedule 6.3. 6.4 Limitation on
Fundamental Changes. Enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets, or make any
material change in its present method of conducting business. 6.5 Limitation on
Sale of Assets. Convey, sell, lease, assign, transfer or otherwise dispose of
any of its property, business or assets (including, without limitation,
receivables and leasehold interests), whether now owned or hereafter acquired,
including any disposition by way of any arrangement with any Person providing
for the leasing by the Borrower or any Subsidiary of real or personal property
which has been or is to be sold or transferred by the Borrower or such
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of the Borrower or such Subsidiary, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person other than the Borrower or any wholly owned Subsidiary of the Borrower,
except:
(a) the Release of any Property or portion thereof (other than
the Air Rights) so long as (i) The Release Price of such Property or
portion thereof is paid to the Agent in cash for the benefit of the
Lenders concurrently with such Release, such Release Price to be
applied as a prepayment of the Loans and a reduction of the Commitments
pursuant to Section 2.11(a), (ii) no Default under Section 7(a) or
Event of Default has occurred and is continuing or would result
therefrom, and (iii) concurrently with such Release the Borrower
prepays Loans, the Existing Loans and/or prepays, redeems or
repurchases Zeros, in an aggregate amount so that, immediately after
giving effect to such Release, the prepayment of the Loans required in
connection therewith pursuant to Section 2.11(a) and such prepayment,
redemption or repurchase of Loans, the Existing Loans and/or Zeros, the
Debt to Value Ratio shall be equal to or less than 65%.
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(b) the sale or other disposition of obsolete or worn out
property (other than any Property) in the ordinary course of business;
(c) leases of space pursuant to tenant leases which are not in
economic substance financing or disposition transactions;
(d) the sale of inventory in the ordinary course of business;
and
(e) the sale or other disposition of the Air Rights so long as
the Borrower shall concurrently make the prepayment required by Section
2.11(a)(ii).
6.6 Limitation on Restricted Payments. Declare or pay any
dividend or other distributions 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, any shares or other
interests of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "Restricted Payments"), except that:
(a) the Borrower may make additional distributions to RCPI and
the LLC, so long as:
(i) (A) the Debt Service Coverage Ratio for the Test
Period most recently ended prior to the time of such
distribution was not less than 1.15 to 1 and (B) the Adjusted
Debt Service Coverage Ratio for the Test Period most recently
ended prior to the time of such distribution was not less than
1.40 to 1,
(ii) the cumulative amount of all Restricted Payments
made by the Borrower from and including January 1, 1998 to the
date of determination would not, after giving effect to any
such additional distribution, exceed the Net Cash Flow after
Debt Service for the period from January 1, 1998 to such date
of determination (taken as a single accounting period) plus
any capital contributions made to the Borrower during such
period (other than capital contributions the proceeds of which
were used to pay interest on the 14% Debentures), and
(iii) both before and after giving effect to such
distribution, no Default under Section 7(a) nor any Event of
Default shall have occurred and be continuing; and
(b) the Borrower may make distributions of Net Proceeds of any
Release; provided, that (i) the Borrower shall have made all
prepayments required to be made pursuant to Section 2.11 hereof and
Section 2.11 of the Existing Senior Credit Agreement in respect of such
Release, and (ii) both before and after giving effect to
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such distribution, no Default under Section 7(a) nor any Event of
Default shall have occurred and be continuing.
6.7 Limitation on Capital Expenditures. (a) Make or commit to
make (by way of the acquisition of securities of a Person or otherwise) any
expenditure in respect of the purchase or other acquisition of fixed or capital
assets (excluding any such asset acquired in connection with normal replacement
and maintenance programs properly charged to current operations) except for
expenditures not exceeding (without duplication of commitments to make such
expenditures included in any prior year), during any fiscal year of the
Borrower, 125% of the amount set forth in the Capital Budget for such fiscal
year; or
(b) fail to make capital expenditures (other than any tenant
improvements or leasing commissions) during each period commencing
January 1, 1997 and ending on the days set forth below in an aggregate
amount of at least the amount set forth opposite such day below:
Day Amount
--------------------- ---------------
December 31, 1999 $50,000,000
provided, however, that each of the amounts set forth in the foregoing table
shall be reduced by an amount equal to the amount so set forth in such table
multiplied by the sum of the percentages set forth opposite each of the
Properties or portions of Properties listed in Schedule 1.1(b) which have been
Released prior to the date set forth opposite such amount in the foregoing
table.
6.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except :
(a) loans to tenants pursuant to new Leases with such tenants,
the proceeds of which loans are to be used solely in connection with
the improvement or occupancy by such tenants of the space leased under
such Leases;
(b) extensions of trade credit in the ordinary course of
business in an aggregate amount not to exceed $3,000,000 at any one
time outstanding; and
(c) investments in Cash Equivalents.
6.9 Limitation on Optional Payments and Modifications of
Agreements. (a) Make any optional payment or prepayment on or redemption or
purchase of any 14% Debentures, Zeros or any Indebtedness or Hedging Obligations
listed on Schedule 6.1 or pursuant to this Agreement, except that the Borrower
may repurchase Zeros, may repay Indebtedness under the Existing Senior Credit
Agreement and may repay Indebtedness and Hedging Obligations listed on Schedule
6.1, provided that (A) all Zeros so purchased shall be immediately retired and
(B) immediately prior to and after giving effect to any such purchase or
repayment, no Default under Section 7(a) nor any Event of Default shall have
occurred and
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be continuing; (b) amend, modify or change, or consent or agree to any
amendment, modification or change to any of the terms of the 14% Debentures,
except for the Amendment to the 14% Debentures Purchase Agreement to be dated
the date hereof, the Zeros or any Indebtedness or Hedging Obligations listed on
Schedule 6.1, or any instrument, agreement or other document governing or
evidencing the same (other than any such amendment, modification or change which
would extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon, and other modifications not materially adverse to the Agent or
the Lenders); (c) amend, modify or change the Property Management Agreement in
any respect which would be materially disadvantageous to the Borrower or the
Lenders; (d) amend, modify or change any Condominium Document in any respect
which would cause the Condominium Documents to be materially more restrictive to
the Borrower or impose any material additional obligations on the Borrower; or
(e) amend, modify or change, or consent to any amendment, modification or change
to, any Major Space Lease or Major Retail Lease (except amendments or
modifications which would increase any rent, eliminate any free or reduced rent
provision, or which would not otherwise be materially adverse to the interests
of the Agent and the Lenders) unless such amendment (or a substantially final
draft thereof) has been submitted to the Agent, together with a written summary
of the economic terms thereof, and the Agent has not disapproved of such
amendment in writing within ten days of such submission.
6.10 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement and (b) upon
fair and reasonable terms no less favorable to the Borrower than it would obtain
in a comparable arm's length transaction with a Person which is not an
Affiliate, provided that, notwithstanding the foregoing, the transactions listed
on Schedule 6.10 shall not be prohibited by this Section 6.10.
6.11 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than December 31.
6.12 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement, other than (a) this Agreement, (b) the 14% Debentures
Purchase Agreement, (c) the Zeros Indenture, (d) any industrial revenue bonds,
purchase money mortgages or Financing Leases permitted by this Agreement (in
which cases, any prohibition or limitation shall only be effective against the
assets financed thereby) and (e) the Existing Senior Credit Agreement, which
prohibits or limits the ability of the Borrower to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired.
6.13 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Borrower is engaged on the date of this Agreement and businesses reasonably
related thereto.
6.14 Governing Documents. Amend its trust agreement or other
Governing Documents in any material respect which would be adverse to the Agent
or the Lenders,
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without the prior written consent of the Required Lenders, which shall not be
unreasonably withheld or delayed.
6.15 Limitation on Subsidiary Formation. Form any
Subsidiaries, unless (a) the Borrower shall have given the Agent and the Lenders
not less than ten Business Days' notice of such proposed formation, (b) all of
the Capital Stock of such Subsidiary is directly owned by the Borrower and (c)
simultaneously with the formation of such Subsidiary, this Agreement and the
other Loan Documents are amended in a manner satisfactory to the Agent to
provide that such Subsidiary becomes a joint obligor with the Borrower with
respect to all Obligations.
6.16 Limitation on Securities Issuances. Issue or permit any
Subsidiary to issue any additional equity interests except to the Borrower.
6.17 Asbestos. Install or permit to be installed in any
Property, friable asbestos or any substance containing asbestos.
6.18 Alterations, Maintenance, Repairs, Waste. (a) Commit any
waste on any Property or (b) substantially alter or demolish or remove all or
any material portion of the improvements or personal property on the Properties,
or erect any material additions to the existing improvements or other structures
on the Properties, which, in the aggregate and after giving effect to such
demolition or removal and the completion of any improvements scheduled to be
made in connection with such demolition or removal, will materially diminish the
fair market value thereof or materially increase any ordinary fire or other
hazard arising out of construction or operation.
6.19 Limitations on Leasing. (a) Enter into any Major Space
Lease or Major Retail Lease that is not a Permitted Major Space Lease or
Permitted Major Retail Lease;
(b) lease all or any part of Property, other than for actual
occupancy by the tenant thereunder; or
(c) assign the whole or any part of any Major Space Lease or
Major Retail Lease or the rents thereunder.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay any interest on any Loan or any other amount
payable hereunder or under the other Loan Documents or the Fee Letter,
within five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in
any certificate,
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document or financial or other statement furnished by it at any time
under or in connection with this Agreement or any such other Loan
Document shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Section 5.2(g) or (h) or
Section 6 other than Section 6.1(d) and (g) and Section 6.10; or
(d) The Borrower shall default in the observance or
performance of any agreement contained in Section 6.1(d) or (g) and
such default shall continue unremedied for a period of ten days, or the
Borrower shall default in the observance or performance of any
agreement contained in Section 6.10 and such default shall continue
unremedied for a period of five days after notice from the Agent (which
notice has not been rescinded or withdrawn); or
(e) The Borrower shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(d) of this Section), and such default shall continue unremedied for a
period of 30 days after notice of such default is given by the Agent to
the Borrower or, if such default is not reasonably amenable to cure
within such 30 days and the Borrower is at all times diligently
pursuing the cure thereof, such default shall continue unremedied for a
period of 90 days after notice of such default is given by the Agent to
the Borrower; or
(f) (i) Any "Event of Default" as defined in the 14%
Debentures Purchase Agreement, any "Event of Default" as defined in the
Zeros Indenture, or any "Event of Default" as defined in the Existing
Senior Credit Agreement shall occur, or (ii) any of the subordination
provisions set forth in the Intercreditor Agreement shall be or become
unenforceable, or any party to the Intercreditor Agreement (other than
the Agent) shall so assert in writing (other than an assertion that
such subordination provisions are or have become unenforceable as a
result of a breach by the Agent of its obligations under the
Intercreditor Agreement); or
(g) The Borrower shall (i) default in any payment of principal
of or interest of any Indebtedness (other than the Loans) or in the
payment of any Guarantee Obligation or Hedging Obligation, beyond the
period of grace (not to exceed 30 days), if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation or Hedging Obligation was created, if the aggregate amount
of the Indebtedness and/or Guarantee Obligations and/or termination or
liquidation or similar payments with respect to the Hedging Obligations
in respect of which such default or defaults shall have occurred is at
least $10,000,000; or (ii) default, after the giving of notice if
required and the lapse of any mandatory grace period, in the observance
or performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or Hedging Obligation or contained
in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is
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to cause, or to permit the holder or holders of such Indebtedness or
Hedging Obligations or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, such Indebtedness to become
due prior to its stated maturity or such Guarantee Obligation to become
payable or any liquidation or termination payment or payments in
respect of such Hedging Obligations to become due; or
(h) (i) The Borrower or the Property Manager shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
the Property Manager shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or
the Property Manager any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower or the Property Manager
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower or the Property Manager shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Borrower or the Property Manager shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due, and, in the case of any
of the foregoing events relating to the Property Manager, the Property
Manager has not be replaced with a new Property Manager acceptable to
the Agent within 30 days; or
(i) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or
any Commonly Controlled Entity shall incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with
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respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(j) Except as described in Section 7(n), one or more
settlements, judgments or decrees shall be entered against the Borrower
involving in the aggregate a liability (but only to the extent not paid
or covered by insurance) of $5,000,000 or more, and all such
settlements, judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal, or paid or otherwise
satisfied, within 60 days from the entry thereof; or
(k) (i) RCPI and the LLC shall cease to own, beneficially and
of record, 100% of the equity ownership of the Borrower, or (ii)
[intentionally omitted] or (iii) one or more of the Investors, and/or
one or more other wholly-owned Subsidiaries of any Key Principals, or
the Key Principals, taken as a whole, cease to own, beneficially and of
record, 100% of the common equity ownership of RCPI and the equity
ownership of the LLC, or (iv) WHRC II Real Estate Limited Partnership,
a Delaware limited partnership, and Rockprop, L.L.C., a Delaware
limited liability company, shall collectively cease to own,
beneficially and of record, at least 50% of the common equity ownership
of RCPI and the equity ownership of the LLC, or (v) any of the Key
Principals shall cease to own, beneficially and of record, at least the
same percentage equity ownership of the Investors (or such transferee
as contemplated by (iii) above) as such Key Principal owned on the date
hereof, except that any Key Principal, other than Whitehall Street Real
Estate Limited Partnership V and, so long as Tishman remains Property
Manager, Tishman Speyer Crown Equities, may transfer any or all of its
ownership interest in the Investors to another Key Principal or, so
long as such Key Principal expressly agrees to remain liable under the
Limited Recourse Agreement to the same extent as provided on the
Closing Date, to any other Person; provided that, the parties hereto
agree that nothing in this Section 7(k) is intended to restrict or
limit any transfer of any ownership interest in any Key Principal; or
(l) [Intentionally Omitted]
(m) the aggregate net worth of the Key Principals shall be
less than $300,000,000, or the Key Principals shall have failed to
deliver to the Agent one or more true and accurate Key Principal Net
Worth Letters (as defined in the Limited Recourse Agreement) as
required by the Limited Recourse Agreement demonstrating an aggregate
net worth of the Key Principals of at least $300,000,000; or
(n) (i) one or more settlements, judgments or decrees shall be
entered against or entered into by any Key Principal or any other
Person (including without limitation any present or former director or
officer of RCPI or any predecessor) with respect to which the Borrower
has an indemnification obligation, involving in the aggregate a
liability (but only to the extent not paid by insurance, or covered by
insurance with respect to which the insurance company has acknowledged
coverage) of $15,000,000 or more, and all such settlements, judgments
or decrees have not been
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vacated, discharged, stayed or bonded pending appeal or paid or
otherwise satisfied within 60 days from the entry thereof, or (ii) any
settlement, judgment or decree shall be entered against or entered into
by any of the Borrower, RCPI or the LLC in the Rockefeller Center
Properties litigation referred to in Section 5.8(e)(iii) or any civil
or criminal litigation, proceeding or investigation arising from or
relating in whole or in part to any claim that there was an alleged
material misstatement or omission in the RCPI Proxy Disclosure (as
defined in the Limited Recourse Agreement), involving in the aggregate
a liability (but only to the extent not paid by insurance, or covered
by insurance with respect to which the insurance company has
acknowledged coverage) of $15,000,000 or more, which settlement,
judgment or decree shall not have been vacated, discharged, stayed or
bonded pending appeal, or paid or otherwise satisfied, within five
Business Days from the entry thereof;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (h) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Required Lenders, the Agent may, or upon
the request of the Required Lenders, the Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the Required Lenders,
the Agent may, or upon the request of the Required Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
8.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The
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Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
8.4 Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower or any other Loan
Party), independent accountants and other experts selected by the Agent. The
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
8.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give notice thereof to the Lenders. The
Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders; provided that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action,
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or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Borrower or any other Loan
Party, shall be deemed to constitute any representation or warranty by the Agent
to any Lender. Each Lender represents to the Agent that it has, independently
and without reliance upon the Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Borrower and the other Loan Parties
and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder or under the other Loan Documents, the Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower or any
other Loan Party which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Agent
and the Arranger in their respective capacities as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective Credit Exposure Percentages in
effect on the date on which indemnification is sought, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Agent or the Arranger
in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Agent or the Arranger under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Agent's or the Arranger's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
8.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower and the other Loan Parties as though the
Agent were not the Agent hereunder and
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under the other Loan Documents. With respect to the Loans made by it, the Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
8.9 Successor Agent. The Agent may resign as Agent upon
10 days' notice to the Lenders. If the Agent shall resign as Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Borrower, whereupon such successor agent shall succeed
to the rights, powers and duties of the Agent, and the term "Agent" shall mean
such successor agent effective upon such appointment and approval, and the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Loans. After any retiring
Agent's resignation as Agent, the provisions of this Section 8 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement and the other Loan Documents.
8.10 Dealings with Agent. Except as otherwise expressly
provided herein, in connection with any matter consented to, approved or waived
by the Lenders or to be consented to, approved or waived by the Lenders, as
between the Borrower, on the one hand, and the Lenders and the Agent, on the
other hand, the Borrower shall be entitled to rely upon the Agent's approval or
consent.
8.11 Co-Agent. The Co-Agent shall have no rights, powers,
duties or responsibilities (other than as a Lender) hereunder or under any other
Loan Document. To the extent that the Borrower is permitted or required to deal
with or rely upon the Agent under any of the Loan Documents, the Borrower shall
be permitted or required to deal with or rely solely upon NationsBank, N.A., as
agent, or any successor agent appointed in accordance with Section 8.9 hereof.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 9.1. The Required Lenders may, or, with the written consent of the
Required Lenders, the Agent may, from time to time, (a) enter into with the
Borrower written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Agent, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of maturity of any Loan
or of any installment thereof, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the aggregate amount or
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extend the expiration date of any Lender's Commitment, in each case without the
consent of each Lender affected thereby, or (ii) amend, modify or waive any
provision of this Section 9.1 or reduce the percentage specified in the
definition of Required Lenders or Majority Lenders, or consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents or release any collateral for the
Obligations or any Recourse Party from its obligations under the Limited
Recourse Agreement, in each case without the written consent of all the Lenders,
or (iii) amend, modify or waive any provision of Section 8 without the written
consent of the then Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Agent and all future holders of the Loans.
In the case of any waiver, the Borrower, the Lenders and the Agent shall be
restored to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, (c) in the case of delivery by
overnight courier, one Business Day after being delivered to a nationally
recognized overnight courier service, with shipping charges paid for delivery on
the next Business Day, or (d) in the case of delivery by facsimile transmission,
when sent and receipt has been electronically confirmed, addressed as follows in
the case of the Borrower and the Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: RCPI Trust
c/o Tishman Speyer Properties L.P.
520 Madison Avenue
New York, New York 10022
Attention: Mr. Jerry Speyer
Telephone: 212-715-0310
Fax: 212-319-1745
with copies to:
Whitehall Street Real Estate Limited Partnership V
85 Broad Street
New York, New York 10004
Attention: Chief Financial Officer
Telephone: 212-902-3171
Facsimile: 212-357-5505;
and
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Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Gary Israel, Esq.
Telephone: 212-558-4005
Facsimile: 212-558-3588
The Agent: NationsBank, N.A.
901 Main Street, TXI-492-51-01
Dallas, Texas 75202
Attention: Ms. Carolyn Mason
Telephone: 214-508-9338
Facsimile: 214-508-1571
with copies to:
NationsBank, N.A.
100 North Tryon Street, 11th Floor
Charlotte, North Carolina 28255
Attention: Mr. Thomas K. Sittema
Telephone: 704-386-0637
Facsimile: 704-388-9408
and
Cadwalader, Wickersham & Taft
227 West Trade Street, Suite 2400
Charlotte, North Carolina 28202
Attention: Christopher M. McDermott, Esq.
Telephone: 704-348-5100
Facsimile: 704-348-5200
provided that any notice, request or demand to or upon the Agent pursuant to
Section 2.3, 2.5, 2.6 or 2.10, or from the Lenders pursuant to Section 2.13(b),
shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
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The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Agent and the Arranger, and each Lender (but limited, with
respect to the Lenders pursuant to this Section 9.5(a), but not with respect to
the Agent or Arranger, to an aggregate amount not to exceed the lesser of (i)
$5,000 per Lender and (ii) $35,000 in the aggregate for all Lenders) for all
their out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
(except with respect to the Lenders) the administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of Cadwalader, Wickersham & Taft, special counsel to the
Agent, costs of appraisals and environmental reports and site inspections, (b)
to pay or reimburse each Lender and the Agent for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents,
including, without limitation, the fees and disbursements of counsel to each
Lender and of counsel to the Agent, (c) to pay, indemnify, and hold each Lender
and the Agent harmless from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender, the Agent and the Arranger harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents, or
the use of the proceeds of the Loans and any such other documents, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries, or any of the Properties
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Borrower shall have no obligation hereunder to
the Agent, Arranger or any Lender with respect to indemnified liabilities
arising from (i) the gross negligence or willful misconduct of the Agent,
Arranger or any such Lender or (ii) legal proceedings commenced against the
Agent, Arranger or any such Lender by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such. The agreements in this Section shall
survive repayment of the Loans and all other amounts payable hereunder.
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9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any
Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such
sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the
other Loan Documents, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents. The Borrower agrees that if amounts outstanding under this
Agreement are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law,
be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if
the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed
to share with the Lenders the proceeds thereof as provided in Section
9.7(a) as fully as if it were a Lender hereunder. The Borrower also
agrees that each Participant shall be entitled to the benefits of
Sections 2.16, 2.17 and 2.18 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a
Lender; provided that, in the case of Section 2.17, such Participant
shall have complied with the requirements of said Section and provided,
further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and
from time to time assign to any Lender or to an additional bank or
financial institution or entity which is an Eligible Assignee or, with
the consent of the Agent (in its sole discretion) and the Borrower
(which consent of the Borrower shall not be unreasonably withheld,
delayed or conditioned; provided, that it shall not be unreasonable for
the Borrower to withhold consent to an additional bank, financial
institution or entity that fails to execute and deliver a certificate
in the form of Exhibit G hereto), to an additional bank or financial
institution or entity which is not a Lender or an Eligible Assignee
(such assignee Lender, Eligible Assignee or other financial institution
or entity, an "Assignee") all or any part of its rights and obligations
under this Agreement and the other Loan
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Documents pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit E, with appropriate completions (an "Assignment and
Acceptance"), executed by such Assignee, such assigning Lender (and, in
the case of an Assignee that is not then a Lender, by the Agent) and
delivered to the Agent for its acceptance and recording in the
Register, provided, that in the case of any such assignment to an
additional bank or financial institution, the sum of the aggregate
principal amount of the Loans and Available Commitment being assigned
shall be at least $5,000,000 or, if less, all of the rights and
obligations of the assigning Lender. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder
shall be a party hereto and, to the extent provided in such Assignment
and Acceptance, have the rights and obligations of a Lender hereunder
with Commitments as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such assigning Lender shall cease to be a party
hereto). Notwithstanding any provision of this paragraph (c) and
paragraph (e) of this Section, the consent of the Borrower shall not be
required, and, unless requested by the Assignee and/or the assigning
Lender, new Notes shall not be required to be executed and delivered by
the Borrower, for any assignment which occurs at any time when any of
the events described in Section 7(h) with respect to the Borrower shall
have occurred and be continuing.
(d) The Agent, on behalf of the Borrower, shall maintain at
the address of the Agent referred to in Section 9.2 a copy of each
Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans
owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Lenders may (and, in the case of any Loan
or other obligation hereunder not evidenced by a Note, shall) treat
each Person whose name is recorded in the Register as the owner of a
Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan
or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender, by the Agent) together with payment to the
Agent of a registration and processing fee of $3,500, the Agent shall
(i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
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(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective
Transferee, subject to the provisions of Section 9.15, any and all
financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by
or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments
of Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of
any Loan or Note to any Federal Reserve Bank in accordance with
applicable law.
(h) Notwithstanding anything to the contrary set forth in this
Section 9.6, no assignment by NationsBank or its Affiliates under
Section 9.6(c) shall be permitted unless, immediately after giving
effect to such assignment, the Commitment and Loans of NationsBank and
its Affiliates shall be not less than the lesser of (i) $10,000,000 and
(ii) 21% of the aggregate Commitments and Loans of all of the Lenders.
9.7 Adjustments; Set-off. (a) If any Lender (a "benefited
Lender") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 7(g), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon, such benefited Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Loan may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice
to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, upon any amount becoming due
and payable by the Borrower hereunder (whether at the stated maturity,
by acceleration or otherwise), but after compliance with any applicable
notice provisions and after expiration of any applicable grace periods,
to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness
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or claims, in any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held or owing
by such Lender or any branch or agency thereof to or for the credit or
the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Agent after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission of signature pages hereto), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Agent.
9.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of North Carolina in Mecklenburg County, the courts
of the United States of America for the Western District of North
Carolina, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially
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similar form of mail), postage prepaid, to the Borrower at its address
set forth in Section 9.2 or at such other address of which the Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
9.13 Acknowledgments. (a) The Borrower hereby acknowledges
that:
(i) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(ii) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between the Borrower and the other Loan Parties, on
one hand, and Agent and Lenders, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(iii) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
(b) Each of the Lenders hereby expressly acknowledges and
agrees to the provisions of Section 11 of the Limited Recourse
Agreement.
9.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
9.15 Confidentiality. The Agent, the Arranger and each Lender
agrees to keep confidential all information provided to it by the Borrower or
any Loan Party pursuant to this Agreement, the other Loan Documents and/or the
Fee Letter; provided that nothing herein shall prevent any Lender from
disclosing any such information (i) to the Agent or any other Lender or any
Affiliate thereof as reasonably necessary in connection with its review,
analysis, and evaluation of the Loan Parties and the Properties, and the entry
into, administration, monitoring and enforcement of the Loan Documents, (ii) to
any Transferee which receives such information having been made aware of the
confidential nature thereof and having become a party to a confidentiality
agreement on terms substantially similar to this Section 9.15, (iii) to its
employees, directors, agents, attorneys, accountants and other professional
advisors as reasonably necessary in connection with its review, analysis, and
evaluation of the Loan
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<PAGE> 82
Parties and the Properties, and the entry into, administration, monitoring and
enforcement of the Loan Documents, (iv) upon the request or demand of any
examiner or other Governmental Authority having jurisdiction over such Lender,
(v) in response to any order of any court or other Governmental Authority or as
may otherwise be required pursuant to any Requirement of Law, (vi) which has
been publicly disclosed other than (to the knowledge of such Person) in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
9.16 Recourse. Except as otherwise expressly provided in the
Limited Recourse Agreement or the other Loan Documents, the Agent and the
Lenders hereby agree that none of the Borrower's beneficiaries, the Investors
nor the Key Principals, nor any of their respective partners, officers,
employees or agents, shall have any liability (contractual or otherwise) in
respect of the Loans or any of the other Obligations and the Agent and the
Lenders shall not have recourse against the assets of any of the Borrower's
beneficiaries, the Investors, the Key Principals nor any of their respective
partners, officers, employees or agents in respect of the Loans or any of the
other Obligations.
[Signature Pages Follow]
-77-
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
RCPI TRUST
By:
------------------------------------
Title:
NATIONSBANK, N.A.,
as Agent and as a Lender
By:
------------------------------------
Title:
<PAGE> 84
BANKBOSTON, N.A.
as Co-Agent and as a Lender
By:
------------------------------------
Title:
<PAGE> 85
INDEX OF SCHEDULES AND EXHIBITS
<TABLE>
<S> <C>
Schedule I: Lenders, Commitments and Lending Offices Schedule following this Index
Schedule 1.1(a): Properties and Allocated Loan Amounts Schedule following this Index
Schedule 1.1(b): Capital Expenditures Adjustments Intentionally omitted
Schedule 2.2: Scheduled Loan Repayments Schedule following this Index
Schedule 3.4(b): Permitting and Regulatory Matters Intentionally omitted
Schedule 3.6: Certain Litigation Schedule following this Index
Schedule 3.8(a): Permitted Encumbrances Intentionally omitted
Schedule 3.8(c): Lease Defaults Intentionally omitted
Schedule 3.8(d): Service Contracts Intentionally omitted
Schedule 3.8(e): Tax Assessments Intentionally omitted
Schedule 3.8(g): Amendments to Condominium Intentionally omitted
Schedule 3.8(h): Ground Lease Defaults Intentionally omitted
Schedule 3.8(i): Tenant Improvement Obligations Intentionally omitted
Schedule 3.8(m): Leasing Brokerage Contracts Intentionally omitted
Schedule 3.14: Subsidiaries Schedule following this Index
Schedule 3.20: Environmental Matters Intentionally omitted
Schedule 4.1(b): Scheduled Leases Intentionally omitted
Schedule 6.1: Existing Indebtedness and Hedging Obligations Schedule following this Index
Schedule 6.3: Existing Guarantee Obligations Schedule following this Index
Schedule 6.10: Certain Affiliate Transactions Schedule following this Index
Exhibit A: Form of Note Intentionally omitted
Exhibit B: Form of Tax Status Certificate Intentionally omitted
Exhibit C: Form of Initial Borrowing Certificate Intentionally omitted
Exhibit D: Form of Opinion of Sullivan & Cromwell Intentionally omitted
Exhibit E: Form of Assignment and Acceptance Intentionally omitted
Exhibit F: Form of Amendment to Existing Credit Agreement Intentionally omitted
Exhibit G: Form of Eligible Assignee Certificate Intentionally omitted
</TABLE>
<PAGE> 86
SCHEDULE I
LENDERS, COMMITMENTS AND LENDING OFFICES
<TABLE>
<CAPTION>
Lender, Lending Offices and Notice Addresses Commitment
-------------------------------------------- ----------
<S> <C>
NationsBank, N.A. $23,500,000
Eurodollar Lending Offices: 901 Main Street
Dallas, Texas 75202
Attention: Ms. Carolyn Mason
Telephone: 214-508-9338
Telecopy: 214-508-1571
Base Rate Lending Office: 901 Main Street
Dallas, Texas 75202
Attention: Ms. Carolyn Mason
Telephone: 214-508-9338
Telecopy: 214-508-1571
Notice Address: 901 Main Street
Dallas, Texas 75202
Attention: Ms. Carolyn Mason
Telephone: 214-508-9338
Telecopy: 214-508-1571
BANKBOSTON, N.A. $23,500,000
Eurodollar Lending Offices: 100 Federal Street
Boston, Massachusetts 02110
Attention: Tim Dwyer
Telephone: 617-434-1659
Telecopy: 617-___________
Base Rate Lending Office: 100 Federal Street
Boston, Massachusetts 02110
Attention: Tim Dwyer
Telephone: 617-434-1659
Telecopy: 617-___________
Notice Address: 100 Federal Street
Boston, Massachusetts 02110
Attention: Tim Dwyer
Telephone: 617-434-1659
Telecopy: 617-___________
TOTAL: $47,000,000
</TABLE>
<PAGE> 87
SCHEDULE 1.1(a)
PROPERTIES AND ALLOCATED LOAN AMOUNTS
<TABLE>
<CAPTION>
PARCEL NATURE OF PROPERTY INTEREST
------ ---------------------------
<S> <C>
(1250 AVENUE OF THE AMERICAS - P/O PARCEL A-1) Block 1265 - Lots 1002, 1003, fee
1005, 1007, 1058-1070, 1073, 1074, 1076, 1077, 1080, 1081, 1092 and 1093 and RGI
Unit Lot 1004
(1250 AVENUE OF THE AMERICAS - P/O PARCEL A-1) Block 1265 Lot 1054 fee
(1250 AVENUE OF THE AMERICAS - P/O PARCEL A-1) Block 1265 - Lots 1023 and 1024 fee
(1250 AVENUE OF THE AMERICAS - P/O PARCEL A-1) Block 1265 - Lots 1028 and fee
1031-1049
(610 FIFTH AVENUE - PARCEL A-2) Block 1265 - Lot 50 leasehold
(NO ADDRESS - PARCEL A-3) Block 1265 - Lot 40 fee
(NO ADDRESS - PARCEL A-4) Block 1265 - Lot 8040 fee
1, 9 ROCKEFELLER PLAZA - P/O PARCEL C) Block 1264 - Part fee
of Lot 5
(1220-1236 AVENUE OF THE AMERICAS - UNIDENTIFIED P/O PARCEL) Block 1264 - leasehold
Remainder of Lot 5
8, 12 WEST 49TH STREET - PARCELS E-1, E-2 AND E-3) Block 1264 - Part of Lot 30 fee
(P/O 600 FIFTH AVENUE - P/O PARCEL E-4) Block 1264 - Remainder Part of Lot 30 leasehold
(1258 AVENUE OF THE AMERICAS - PARCEL D) Block 1265 - Lot 71 fee
(1260-1276 AVENUE OF THE AMERICAS - P/O PARCEL B) Block 1266 - Lot 1 (excluding fee
Radio City Music Hall)
</TABLE>
<PAGE> 88
<TABLE>
<CAPTION>
PROPERTY ALLOCATED LOAN AMOUNT
-------- ---------------------
<S> <C>
30 Rockefeller Plaza $11,300,000
International Building 9,900,000
One Rockefeller Plaza 4,200,000
600 Fifth Avenue 2,400,000
10 Rockefeller Plaza 3,300,000
1230 Avenue of the Americas 3,300,000
50 Rockefeller Plaza 2,300,000
1270 Avenue of the Americas
(excluding Radio City Music Hall) 3,200,000
French Building 1,800,000
British Building 1,700,000
Radio City Music Hall 3,600,000
TOTAL $47,000,000
</TABLE>
<PAGE> 89
Remaining Property
ALL of Parcel 1 (Block 1265, Lot 50) other than the following:
ALL that certain plot, piece or parcel of land, situate, lying
and being in the Borough of Manhattan, County of New York, City and State of New
York, bounded and described as
follows:
BEGINNING at the intersection
of the northerly side of West 49th Street and the
westerly side of 5th Avenue;
RUNNING THENCE along the westerly side of 5th Avenue 200 feet
10 inches to the intersection of the westerly side of 5th Avenue and the
southerly side of West 50th Street;
THENCE westerly along the southerly side of West 50th Street
315 feet 0 inches to the easterly side of Rockefeller Plaza;
THENCE southerly along the easterly side of Rockefeller Plaza
200 feet 10 inches to the northerly side of West 49th Street;
THENCE easterly along the northerly side of West 49th Street
315 feet 0 inches to the westerly side of 5th Avenue to the point or place of
BEGINNING.
<PAGE> 90
SCHEDULE 2.2
SCHEDULED LOAN REPAYMENTS
The Loans shall be repaid in amounts (each, a "Scheduled
Payment Amount"), payable on each day listed below, equal to:
(i) the aggregate principal amount of Loans borrowed on or
prior to the Termination Date, minus
(ii) the sum of the Maximum Allowable Loan Balance set forth
below opposite such day plus the amount allocated to such Scheduled
Payment Amount pursuant to Sections 2.10, 2.11 and 5.6 plus the
aggregate principal amount of all Scheduled Payment Amounts for all
dates prior to such day,
provided that if such difference is equal to or less than zero then the amount
of the Scheduled Payment Amounts for such quarter shall be zero, and provided,
further, that, notwithstanding anything set forth in this Schedule 2.2
otherwise, all remaining unpaid principal of the Loans shall be due on December
31, 2000:
<TABLE>
<CAPTION>
MAXIMUM ALLOWABLE LOAN
DATE BALANCE
---- ----------------------
<S> <C>
March 31, 1999 $47,000,000
June 30, 1999 $47,000,000
September 30, 1999 $47,000,000
December 31, 1999 $42,000,000
March 31, 2000 $32,000,000
May 16, 2000 $0, or if the Maturity Date
shall have been extended
pursuant to Section 2.6,
$32,000,000
June 30, 2000 $22,000,000*
September 30, 2000 $12,000,000*
</TABLE>
<PAGE> 91
<TABLE>
<S> <C>
December 31, 2000 $0*
</TABLE>
*Only if the Maturity Date shall have been extended pursuant to Section 2.6.
<PAGE> 92
Schedule 3.6
In re Rockefeller Center Properties, Inc. Securities Litigation, Consolidated
C.A. No. 96-543 (RRM), United States District Court for the District of
Delaware.
Knight, et al. v. Rockefeller Center Properties, Inc. et al., 95 Civ. 4165 (WK),
United States District Court for the Southern District of New York.
Krim v. Rockefeller Center Properties, Inc. et al., 95 Civ. 3764 (WK), United
States District Court for the Southern District of New York.
In re Rockefeller Center Properties, Inc. Shareholders Litigation, Consol. C.A.
No. 14612, Delaware Court of Chancery.
Beizer et. al. v. Linneman et. al., C.A. No. 16413, Delaware Court of Chancery.
Siegal & Gale Inc. v. RCPI Trust et. al., Index No. 605682/98, Supreme Court of
the State of New York, New York County.
Inquiry by the Office of the Attorney General of the State of New York, Investor
Protection and Securities Bureau.
Informal inquiry by New York regional office of the United States Securities and
Exchange Commission (presently dormant).
<PAGE> 93
Schedule 3.14
RCP Associates, a New York Limited Partnership (the "Partnership")
Interests in the Partnership are owned by:
RCPI Trust, General Partner ........................ 45.00%
Rock-Around-The-Block, Inc., Limited Partner ....... 55.00%
The partnership owns the property described on Exhibit A, which is
subject to that certain unrecorded Amended and Restated Lease, dated July 17,
1996 by and between the Partnership, as landlord, and Rockefeller Center
Properties, a New York general partnership ("RCP"), as tenant, as assigned to
RCPI Trust by Assignment and Assumption of Ground Lease, dated July 17, 1996 by
and between RCP, as assignor, and RCPI Trust as assignee.
<PAGE> 94
SCHEDULE 6.1 - EXISTING INDEBTEDNESS
<TABLE>
<CAPTION>
PAY RATE
COUNTERPARTY NOTIONAL AMOUNT CAP MATURITY
- ------------ --------------- -------- --------
<S> <C> <C> <C>
Goldman Sachs Capital Markets L.P. $55,000,000 7.69% May 15, 1999
8.69% May 16, 2000 or
December 31, 2000 if
NationsBank loan extended
</TABLE>
<PAGE> 95
SCHEDULE 6.3 - GUARANTEE OBLIGATIONS:
NONE
<PAGE> 96
SCHEDULE 6.10 - TRANSACTION WITH AFFILIATES
AFFILIATE TRANSACTION
Tishman Speyer Properties, L.P. Managing & Leasing Agent
Goldman Sachs & Co. Investment Banking Agent
Arcade Services Contract Cleaning Services
Paramount Painting Company, LLC Painting Services
<PAGE> 1
EXECUTION COPY
AMENDED AND RESTATED
INTERCREDITOR AND SUBORDINATION AGREEMENT
AMENDED AND RESTATED INTERCREDITOR AND SUBORDINATION
AGREEMENT, dated as of April 12, 1999, by and among the registered holder of the
14% Debentures (defined as hereinafter provided) (the "Holder"), WHRC REAL
ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership ("Whitehall"), RCPI
TRUST, a Delaware business trust (together with its predecessors, successors and
assigns, the "Borrower"), and NATIONSBANK, N.A., a national banking association,
as agent (together with its successors and assigns in such capacity, the
"Agent") for the Lenders parties to the Senior Credit Agreements (as hereinafter
defined).
RECITALS
Each of the Holder, Whitehall, the Borrower and the Agent are parties
to that certain Intercreditor and Subordination Agreement, dated as of May 16,
1997 (as in effect on the date hereof, the "Existing Intercreditor Agreement").
In connection with the entering into of the Credit Agreement, dated as of April
12, 1999, among the Borrower, the lenders parties thereto, and the Agent, the
parties hereto have determined to amend the Existing Intercreditor Agreement and
restate it as so amended as more fully set forth herein. Accordingly, in
consideration of the premises and for other consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto hereby agree that
the Existing Intercreditor Agreement is hereby amended and restated to read in
its entirety as follows:
1. Definitions. (a) Unless otherwise defined herein, terms
defined in the Senior Credit Agreements and used herein shall have the meanings
given to them in the Senior Credit Agreements, as applicable.
(b) The following terms shall have the following meanings:
"Additional Senior Credit Agreement": the Credit Agreement,
dated as of April 12, 1999, among the Borrower, the Agent and the Lenders
parties thereto from time to time, as such Credit Agreement may be amended,
modified, supplemented or replaced from time to time, including, without
limitation, amendments, modifications, supplements and restatements thereof
giving effect to increases, renewals, extensions, refundings, deferrals,
restructurings, replacements or refinancings of, or additions to, the
arrangements provided in such Credit Agreement (whether provided by the original
Agent and Lenders under such Credit Agreement or a successor Agent or other
Lenders).
"Agreement": this Amended and Restated Intercreditor and
Subordination Agreement, as the same may be amended, modified or otherwise
supplemented from time to time.
"Blockage Period": any of:
<PAGE> 2
(a) any period commencing on the date a Default Blockage
Notice is given and ending on the earlier to occur of:
(i) the date when the Event of Default that was the basis for
such Default Blockage Notice has been cured or waived; and
(ii) 180 days after the date such Default Blockage Notice is
given; and
(b) any period commencing on the date that the Borrower is
required to make any prepayment pursuant to Section 2.11(e) of each Senior
Credit Agreement and ending on the first 14% Debenture Interest Payment Date
thereafter (i) which occurs after the time when at least two complete fiscal
quarters have elapsed since the date the Borrower is required to make such
prepayment, (ii) on which the Debt Service Coverage Ratio (as defined in the
Existing Senior Credit Agreement) for each of the Test Periods ended on the last
days of each of the fiscal quarters of the Borrower ended after the immediately
preceding 14% Debenture Interest Payment Date shall have been 1.40 to 1 or
greater and (iii) on which the Debt Service Coverage Ratio (as defined in the
Additional Senior Credit Agreement) for each of the Test Periods ended on the
last days of each of the fiscal quarters of the Borrower ended after the
immediately preceding 14% Debenture Interest Payment Date shall have been 1.15
to 1 or greater.
"Default Blockage Notice": a written notice from the Agent to
the Borrower given as provided in each Senior Credit Agreement that a
Non-Payment Event of Default has occurred and is continuing.
"Existing Senior Credit Agreement": the Credit Agreement,
dated as of May 16, 1997, among the Borrower, the Agent and the Lenders parties
thereto from time to time, as amended by the Amendment, dated as of April 12,
1999, among the Borrower, the Lenders party thereto and the Agent and as such
Credit Agreement may be further amended, modified, supplemented or replaced from
time to time, including, without limitation, amendments, modifications,
supplements and restatements thereof giving effect to increases, renewals,
extensions, refundings, deferrals, restructurings, replacements or refinancings
of, or additions to, the arrangements provided in such Credit Agreement (whether
provided by the original Agent and Lenders under such Credit Agreement or a
successor Agent or other Lenders).
"Insolvency Event": (1) The Borrower or any of its Material
Subsidiaries commencing any case, proceeding or other action (i) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, conservatorship or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (ii) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or the Borrower or any of its Material
Subsidiaries making a general assignment for the benefit of its creditors; or
(2) there being commenced against the Borrower or any of its Material
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (1) above which (i) results in the
-2-
<PAGE> 3
entry of an order for relief or any such adjudication or appointment or (ii)
remains undismissed, undischarged or unbonded for a period of 60 days; or (3)
there being commenced against the Borrower or any of its Material Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (4) the Borrower or any
of its Material Subsidiaries taking any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
clause (1), (2) or (3) above; or (5) the Borrower or any of its Material
Subsidiaries generally not paying, or being unable to pay, or admitting in
writing its inability to pay, its debts as they become due.
"Material Subsidiary": any Subsidiary of the Borrower having
assets (other than the Air Rights) with a fair market value in excess of
$10,000,000.
"Non-Payment Event of Default": any event (other than a
Payment Event of Default) the occurrence of which entitles one or more of the
Senior Lenders to accelerate the maturity of any of the Senior Obligations.
"Payment Event of Default": any default in the payment of the
Senior Obligations (whether upon maturity, mandatory prepayment, acceleration or
otherwise) beyond any applicable grace period with respect thereto.
"Senior Credit Agreements": the collective reference to the
Existing Senior Credit Agreement and the Additional Senior Credit Agreement.
"Senior Lenders": the holders from time to time of Senior
Obligations.
"Senior Loan Documents": the collective reference to the
Senior Credit Agreements, the Senior Notes and all other documents that from
time to time evidence the Senior Obligations or secure or support payment or
performance thereof.
"Senior Loans": the loans made by the Senior Lenders to the
Borrower pursuant to the Senior Credit Agreements.
"Senior Notes": the promissory notes of the Borrower
outstanding from time to time under the Senior Credit Agreements.
"Senior Obligations": the collective reference to the unpaid
principal of and interest on the Senior Notes and all other obligations and
liabilities of the Borrower to the Agent and the Senior Lenders (including,
without limitation, interest accruing at the then applicable rate provided in
the applicable Senior Credit Agreement after the maturity of the Senior Loans
and interest accruing at the then applicable rate provided in the applicable
Senior Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
-3-
<PAGE> 4
which may arise under, out of, or in connection with, the Senior Credit
Agreements, the Senior Notes, this Agreement, the other Senior Loan Documents or
any other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Agent or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of the Senior Credit
Agreements or this Agreement or any other Senior Loan Document).
"Subordinated Debt Documents": the collective reference to the
14% Debentures Purchase Agreement (as defined in the Additional Senior Credit
Agreement), the 14% Debentures and any other documents or instruments that from
time to time evidence the 14% Debentures or secure or support payment or
performance thereof.
"Subordinated Holders": the holders from time to time of the
Subordinated Obligations.
"Subordinated Obligations": the collective reference to the
unpaid principal of and interest on the 14% Debentures, all obligations of the
Borrower to redeem, repurchase or defease any 14% Debentures and all other
obligations and liabilities of the Borrower to the Subordinated Holders
(including, without limitation, interest accruing at the then applicable rate
provided in the 14% Debenture Purchase Agreement after the maturity of the 14%
Debentures and interest accruing at the then applicable rate provided in the 14%
Debenture Purchase Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the 14% Debenture Purchase
Agreement, the 14% Debentures or any other Subordinated Debt Document, in each
case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Subordinated Holders that are required
to be paid by the Borrower pursuant to the terms of the 14% Debenture Purchase
Agreement (as defined in the Additional Senior Credit Agreement) or this
Agreement or any other Subordinated Debt Document).
"Subordination Event": either of the following events:
(i) the occurrence of any Insolvency Event; or
(ii) the Senior Obligations becoming due and payable in full,
whether upon maturity, acceleration or otherwise.
"Whitehall" as defined in the caption to this Agreement.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
-4-
<PAGE> 5
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Subordination. (a) Each of the Subordinated Holders agrees,
for itself and each future holder of the Subordinated Obligations, that the
Subordinated Obligations are expressly "subordinate and junior in right of
payment" (as that phrase is defined in paragraph 2(b)) to all Senior
Obligations.
(b) "Subordinate and junior in right of payment" means that:
(1) no part of the Subordinated Obligations shall have any
claim to the assets of the Borrower on a parity with or prior to the claim of
the Senior Obligations;
(2) unless and until the Senior Notes have been paid in
full and the Commitments have been terminated, without the express prior written
consent of the Agent,
(A) no Subordinated Holder will take, demand or
receive from the Borrower, and the Borrower will not make, give or permit,
directly or indirectly, by set-off, redemption, purchase or in any other manner,
any payment of or security for the whole or any part of the Subordinated
Obligations, and
(B) no Subordinated Holder will accelerate for any
reason the scheduled maturities of any amount owing under the 14% Debentures;
provided, however, that
(i) at any time, except during a Blockage Period or when a
Payment Event of Default has occurred and is continuing, the Borrower may make,
and the Subordinated Holders may receive, scheduled payments on account of
interest (including deferred interest) on the 14% Debentures in accordance with
the terms thereof, and
(ii) upon the occurrence of a Subordination Event the
Subordinated Holders may accelerate the scheduled maturities of the 14%
Debentures but may not receive payments in respect thereof until the Senior
Notes have been paid in full and the Commitments have been terminated; and
provided, further, however, that, notwithstanding clause (i) of the immediately
preceding proviso, the Borrower may make, and the Subordinated Holders may
receive, during the continuance of any Blockage Period existing solely pursuant
to clause (b) of the definition of "Blockage Period", payments on account of
current and accrued interest on the 14% Debentures:
(x) on any 14% Debenture Interest Payment Date in an
amount, and only up to an amount, equal to the excess, if any,
of the amount of interest scheduled to be paid on the 14%
Debentures on such 14% Debenture Interest Payment Date
(excluding any scheduled interest on the 14% Debentures unpaid
from prior 14% Debenture Interest Payment Dates, but including
interest
-5-
<PAGE> 6
accrued on such unpaid interest for the period since the
immediately preceding 14% Debenture Interest Payment Date)
over the aggregate amount of any Accelerated Amortization
Payments payable in respect of each of the two Test Periods
most recently ended prior to such 14% Debenture Interest
Payment Date, and
(y) on any 14% Debenture Interest Payment Date in an
amount, and only up to an amount, equal to the 14% Debenture
Quarterly Amount for such 14% Debenture Interest Payment Date,
so long as (1) no payment of interest on the 14% Debentures
pursuant to this clause (y) of this proviso has been made
during the one-year period preceding the date of such payment
and (2) after giving effect to such payment, the Borrower
shall have cash and Cash Equivalents standing to its account
in an aggregate amount not less than $10,000,000, and
(z) so long as no Default or Event of Default (as to
which, if any notice is required to be given by the Agent,
such notice has been given) shall have occurred and be
continuing before or after giving effect to such payment, in
an amount not in excess of a cash contribution to the common
equity of the Borrower by the Investors made contemporaneously
with such payment.
(c) No Event of Default which existed on the date any Default
Blockage Notice was given shall be the basis for giving any subsequent Default
Blockage Notice, unless such Event of Default shall have been cured or waived or
otherwise ceased to exist for a period of not less than 90 consecutive days
after the date such Default Blockage Notice was given.
(d) No more than one Default Blockage Notice may be given
within any consecutive 180-day period.
(e) The expressions "prior payment in full," "payment in
full," "paid in full" and any other similar terms or phrases when used herein
with respect to the Senior Obligations shall mean the payment in full, in cash
and in immediately available funds, of all of the Senior Obligations.
3. Additional Provisions concerning Subordination. (a) The
Subordinated Holders and the Borrower agree that upon the occurrence of any
Subordination Event:
(1) all Senior Obligations shall be paid in full before
any payment or distribution is made with respect to the Subordinated
Obligations; and
(2) any payment or distribution of assets of the Borrower,
whether in cash, property or securities, to which any Subordinated Holder would
be entitled except for the provisions hereof, shall be paid or delivered by the
Borrower, or any receiver, trustee in bankruptcy, liquidating trustee,
disbursing agent or other Person making such payment or distribution, directly
to the Agent, for the account of the Senior Lenders, to the extent necessary to
pay in full all Senior Obligations, before any payment or distribution shall be
made to any Subordinated Holder.
-6-
<PAGE> 7
(b) Upon the occurrence of any event or proceeding described
in clause (1) or (2) of the definition of "Insolvency Event" commenced by or
against the Borrower:
(1) each Subordinated Holder irrevocably authorizes and
empowers the Agent (A) to demand, sue for, collect and receive every payment or
distribution on account of the Subordinated Obligations payable or deliverable
in connection with such event or proceeding and give acquittance therefor, and
(B) to file claims and proofs of claim in any statutory or non-statutory
proceeding and take such other actions (but excluding the right to vote any
claim of any Subordinated Holder in any such proceeding), in its own name as
Agent, or in the name of the Subordinated Holders or otherwise, as the Agent may
deem necessary or advisable for the enforcement of the provisions of this
Agreement; provided, however, that the foregoing authorization and empowerment
imposes no obligation on the Agent to take any such action, and provided,
further, however, that if the Agent shall take such action, the Agent shall use
its reasonable efforts to keep the Subordinated Holders reasonably informed in
connection with such action;
(2) each Subordinated Holder shall take such action, duly
and promptly, as the Agent may reasonably request from time to time (A) to
collect the Subordinated Obligations for the account of the Senior Lenders and
(B) to file appropriate proofs of claim in respect of the Subordinated
Obligations; and
(3) each Subordinated Holder shall execute and deliver
such powers of attorney, assignments or proofs of claim or other instruments as
the Agent may reasonably request to enable the Agent to enforce any and all
claims in respect of the Subordinated Obligations and to collect and receive any
and all payments and distributions which may be payable or deliverable at any
time upon or in respect of the Subordinated Obligations.
(c) If any payment or distribution, whether consisting of
money, property or securities, be collected or received by any Subordinated
Holder in respect of the Subordinated Obligations, except payments permitted to
be made at the time of payment as provided in paragraph 2(b), such Subordinated
Holder forthwith shall deliver the same to the Agent for the account of the
Senior Lenders, in the form received, duly endorsed to the Agent, if required,
to be applied to the payment or prepayment of the Senior Obligations until the
Senior Obligations are paid in full. Until so delivered, such payment or
distribution shall be held in trust by such Subordinated Holder as the property
of the Senior Lenders, segregated from other funds and property held by such
Subordinated Holder.
4. Subrogation. Subject to the prior payment in full of the
Senior Obligations, the Subordinated Holders shall be subrogated to the rights
of the Senior Lenders to receive payments or distributions of assets of the
Borrower in respect of the Senior Obligations. For the purposes of such
subrogation, payments or distributions to the Agent, for the account of the
Senior Lenders, of any money, property or securities to which any Subordinated
Holder would be entitled except for the provisions of this Agreement shall be
deemed, as between the Borrower and its creditors other than the Senior Lenders
and such Subordinated Holder, to be a payment by the Borrower to or on account
of Subordinated Obligations, it being understood that the provisions of this
Agreement are, and are intended
-7-
<PAGE> 8
solely, for the purpose of defining the relative rights of the Subordinated
Holders, on the one hand, and the Senior Lenders, on the other hand.
5. Consent of Subordinated Holders.
(a) Each Subordinated Holder consents, notwithstanding any
provision to the contrary contained in the Subordinated Debt Documents, to the
execution, delivery and performance of the Senior Loan Documents and to the
incurrence and existence of the Senior Obligations.
(b) Each Subordinated Holder consents that, without the
necessity of any reservation of rights against any Subordinated Holder, and
without notice to or further assent by any Subordinated Holder:
(1) any demand for payment of any Senior Obligations made
by the Agent or any Senior Lender may be rescinded in whole or in part by the
Agent or any such Senior Lender, and any Senior Obligation may be continued, and
the Senior Obligations, or the liability of the Borrower or any co-obligor or
any other party upon or for any part thereof, or right of offset with respect
thereto, or any obligation or liability of the Borrower or any other party under
the Senior Credit Agreements or any other agreement, may, from time to time, in
whole or in part, be renewed, extended, modified, accelerated, compromised,
waived, surrendered, or released by the Agent or any Senior Lender; and
(2) the Senior Credit Agreements, the Senior Notes and any
other Senior Loan Document may be amended, modified, supplemented or terminated,
in whole or in part, as the Agent or any Senior Lender may deem advisable from
time to time, provided, that no such amendment, supplement or other modification
shall increase the aggregate principal amount of the Commitments or Loans
available and outstanding thereunder, or increase the interest rate thereon,
in each case all without notice to or further assent by any Subordinated Holder,
which will remain bound under this Agreement, and all without impairing,
abridging, releasing or affecting the subordination provided for herein.
(c) Each Subordinated Holder waives any and all notice of the
creation, renewal, extension or accrual of any of the Senior Obligations and
notice of or proof of reliance by the Senior Lenders upon this Agreement. The
Senior Obligations, and any of them, shall be deemed conclusively to have been
created, contracted or incurred in reliance upon this Agreement, and all
dealings between the Borrower and the Senior Lenders shall be deemed to have
been consummated in reliance upon this Agreement. Each Subordinated Holder
acknowledges and agrees that the Senior Lenders have relied upon the
subordination provided for herein in entering into the Senior Credit Agreements
and in making funds available to the Borrower thereunder. Each Subordinated
Holder waives notice of or proof of reliance on this Agreement and protest,
demand for payment and notice of default.
-8-
<PAGE> 9
6. Covenants of the Subordinated Holders and Whitehall. (a) So
long as any of the Senior Obligations shall remain outstanding, no Subordinated
Holder shall, without the prior written consent of the Agent:
(i) sell, assign, or otherwise transfer, in whole or in part,
the Subordinated Obligations or any interest therein to any other Person (a
"Transferee") or create, incur or suffer to exist any security interest, lien,
charge or other encumbrance whatsoever upon the Subordinated Obligations in
favor of any Transferee unless such transaction is made expressly subject to
this Agreement, and the Transferee expressly acknowledges to the Agent, by a
writing in form and substance reasonably satisfactory to the Agent, the
subordination provided for herein and agrees to be bound by all of the terms
hereof;
(ii) permit any of the Subordinated Debt Documents to be
amended, modified or otherwise supplemented; or
(iii) commence, or join with any creditors other than the
Senior Lenders in commencing any proceeding referred to in clause (1) or (2) of
the definition of "Insolvency Event."
(b) Whitehall covenants and agrees that, in the event of any
sale, assignment or transfer by any Subordinated Holder of any interest in the
Subordinated Obligations, Whitehall shall (i) give prompt written notice thereof
to the Agent.
7. Senior Obligations Unconditional. All rights and interests
of the Senior Lenders hereunder, and all agreements and obligations of the
Subordinated Holders and the Borrower hereunder, shall remain in full force and
effect irrespective of:
(a) any lack of validity or enforceability of any Senior Loan
Documents by reason of the commencement or pendency of any case, proceeding or
action described in clause (1) or (2) of the definition of 'Insolvency Event";
(b) subject to the proviso to Section 5(b)(2) hereof, any
change in the time, manner or place of payment of, or in any other term of, all
or any of the Senior Obligations, or any amendment or waiver or other
modification, whether by course of conduct or otherwise, of the terms of the
Senior Credit Agreements or any other Senior Loan Document;
(c) any exchange, release or nonperfection of any security
interest in any collateral for any Senior Obligations, or any release,
amendment, waiver or other modification, whether in writing or by course of
conduct or otherwise, of all or any of the Senior Obligations or any guarantee
thereof; or
(d) any other circumstances which otherwise might constitute a
defense available to, or a discharge of, the Borrower in respect of the Senior
Obligations, or of either any Subordinated Holder or the Borrower in respect of
this Agreement which is or is in the nature of a defense available to a surety.
-9-
<PAGE> 10
8. Representations and Warranties. (a) The Holder represents
and warrants to the Agent and the Senior Lenders that:
(i) its 14% Debentures are owned by the Holder free and clear
of any Liens whatsoever arising from, through or under the Holder, other than
the interest of Whitehall, Goldman Sachs Capital Markets, L.P. and the interest
of the Senior Lenders under this Agreement.
(ii) The Holder has the corporate power and authority and the
legal right to execute and deliver and to perform its obligations under this
Agreement and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Agreement.
(iii) This Agreement constitutes a legal, valid and binding
obligation of the Holder enforceable against the Holder in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(iv) The execution, delivery and performance of this Agreement
will not violate any provision of any Requirement of Law or Contractual
Obligation of the Holder and will not result in the creation or imposition of
any Lien on any of the properties or revenues of the Holder pursuant to any
Requirement of Law affecting or any Contractual Obligation of the Holder, except
the interest of the Senior Lenders under this Agreement.
(v) No consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any stockholder or creditor of
the Holder), is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
9. No Representation by Agent. Neither the Agent nor any
Senior Lender has made, and none of them hereby or otherwise makes to the
Subordinated Holders, any representations or warranties, express, or implied,
nor does the Agent or any Senior Lender assume any liability to any Subordinated
Holder with respect to: (a) the financial or other condition of obligors under
any instruments of guarantee with respect to the Senior Obligations, (b) the
enforceability, validity, value or collectibility of the Senior Obligations or
the Subordinated Obligations, any collateral therefor, or any guarantee or
security which may have been granted in connection with any of the Senior
Obligations or the Subordinated Obligations or (c) the Borrower's title or right
to transfer any collateral or security.
10. Waiver of Claims. To the maximum extent permitted by law,
each Subordinated Holder waives any claim it might have against the Senior
Lenders with respect to, or arising out of, any action or failure to act or any
error of judgment, negligence, or mistake or oversight whatsoever on the part of
the Agent, the Senior Lenders or their respective directors, officers, employees
or agents with respect to any exercise of rights or
-10-
<PAGE> 11
remedies under the Senior Loan Documents. Neither the Agent, any Senior Lender
nor any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of such collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any such collateral upon the request of the Borrower or any
Subordinated Holder or any other Person or to take any other action whatsoever
with regard to such collateral or any part thereof.
11. Provisions Applicable After Bankruptcy; No Turnover.
(a) The provisions of this Agreement shall continue in full
force and effect notwithstanding the occurrence of any Insolvency Event.
(b) To the extent that any Subordinated Holder has or acquires
any rights under Section 363 or Section 364 of the Bankruptcy Code with respect
to any collateral for any Senior Obligations or Subordinated Obligations, such
Subordinated Holder hereby agrees not to assert such rights without the prior
written consent of the Agent, on behalf of the Senior Lenders; provided that, if
requested by the Agent, such Subordinated Holder shall seek to exercise such
rights in the manner requested by the Agent, including the rights in payments in
respect of such rights.
12. Further Assurances. The Subordinated Holders and the
Borrower, at their own expense and at any time from time to time, upon the
written request of the Agent will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the Agent
reasonably may request for the purposes of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted.
13. Provisions Define Relative Rights. This Agreement is
intended solely for the purpose of defining the relative rights of the Agent and
the Senior Lenders on the one hand and the Subordinated Holders on the other,
and no other Person shall have any right, benefit or other interest under this
Agreement.
14. Powers Coupled With An Interest. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until the Senior Obligations are paid in full and
the Commitments are terminated.
15. Authority of Agent. The Borrower and the Subordinated
Holders acknowledge that the rights and responsibilities of the Agent under this
Agreement with respect to any action taken by the Agent or the exercise or
non-exercise by the Agent of any option, request, judgment or other right or
remedy provided for herein or resulting or arising out of this Agreement shall,
as between the Agent and the Senior Lenders, be governed by the applicable
Senior Credit Agreement and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Agent, on the one hand,
and the Borrower and the Subordinated Holders, on the other hand, the Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and neither the Borrower
nor any Subordinated Holder shall be under any obligation, or entitlement, to
make any inquiry respecting such authority.
-11-
<PAGE> 12
16. Notices. All notices, requests and demands to or upon the
Agent or the Borrower or any Subordinated Holder to be effective shall be in
writing (including by facsimile transmission) and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (1) in the case
of delivery by hand, when delivered or (2) in the case of delivery by mail,
three days after being deposited in the mails, postage prepaid, (3) in the case
of delivery by overnight courier, one Business Day after being delivered to a
nationally recognized overnight courier service, with shipping charges paid for
delivery on the next Business Day, or (4) in the case of delivery by facsimile
transmission, when sent and receipt has been electronically confirmed, addressed
as follows:
If to the Agent: NationsBank, N.A.
901 Main Street, TXI-492-51-01
Dallas, Texas 75202
Attention: Ms. Carolyn Mason
Telephone: 214-508-9338
Facsimile: 214-508-1571
with copies to:
NationsBank, N.A.
100 North Tryon Street, 11th Floor
Charlotte, North Carolina 28255
Attention: Mr. Thomas K. Sittema
Telephone: 704-386-0637
Facsimile: 704-388-9408
and
Cadwalader, Wickersham & Taft
227 West Trade Street, Suite 2400
Charlotte, North Carolina 28202
Attention: Christopher M. McDermott, Esq.
Telephone: 704-348-5100
Facsimile: 704-348-5200
If to the Borrower: RCPI Trust
c/o Tishman Speyer Properties L.P.
520 Madison Avenue
New York, New York 10022
Attention: Mr. Jerry Speyer
Telephone: 212-715-0310
Facsimile: 212-319-1745
with copies to:
Whitehall Street Real Estate Limited Partnership V
85 Broad Street
-12-
<PAGE> 13
New York, New York 10004
Attention: Chief Financial Officer
Attention: Chief Financial Officer
Telephone: 212-902-3171
Facsimile: 212-357-5505
and
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Gary Israel, Esq.
Telephone: 212-558-4005
Facsimile: 212-558-3588
If to Whitehall: WHRC Real Estate Limited Partnership
85 Broad Street
New York, New York 10004
Attention: Chief Financial Officer
Telephone: 212-902-3171
Facsimile: 212-357-5505;
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Gary Israel, Esq.
Telephone: 212-558-4005
Facsimile: 212-558-3588
If to any Subordinated Holder, at its address or transmission number for notices
set forth under its signature below.
The Agent, the Borrower and any Subordinated Holder may change their addresses
and transmission numbers for notices by notice in the manner provided in this
Section.
17. Counterparts. This Agreement may be executed by one or
more of the parties on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Agreement signed by all the
parties shall be lodged with the Agent.
18. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
-13-
<PAGE> 14
19. Integration. This Agreement represents the agreement of
the Agent and the Senior Lenders and the Subordinated Holders with respect to
the subject matter hereof and there are no promises or representations by the
Agent or any Senior Lender or any Subordinated Holder relative to the subject
matter hereof not reflected herein.
20. Amendments in Writing; No Waiver: Cumulative Remedies. (a)
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Agent, the Borrower and each Subordinated Holder; provided that any
provision of this Agreement may be waived by the Agent and the Senior Lenders in
a letter or agreement executed by the Agent or by telex or facsimile
transmission from the Agent.
(b) No failure to exercise, nor any delay in exercising, on
the part of the Agent or any Senior Lender, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
21. Section Headings. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
22. Successors and Assigns. (a) This Agreement shall be
binding upon the successors and assigns of the Borrower and the Subordinated
Holders and shall inure to the benefit of the Agent and the Senior Lenders and
their successors and assigns.
(b) Upon a successor Agent becoming the Agent under either
Senior Credit Agreement, such successor Agent automatically shall become an
Agent hereunder with respect to such Senior Credit Agreement with all the rights
and powers of the Agent hereunder without the need for any further action on the
part of any party hereto. In the event that the "Agent" under one Senior Credit
Agreement is not the same as the "Agent" under the other Senior Credit
Agreement, the term "Agent" herein shall refer collectively to both such Agents.
23. Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
[Signature Pages Follow]
-14-
<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
NATIONSBANK, N.A., as Agent
By____________________________________
Title_________________________________
RCPI TRUST
By____________________________________
Title_________________________________
HOLDER OF 14% DEBENTURES
By: WHRC Real Estate Limited Partnership, its
attorney-in-fact
By: WHRC Gen-Par, Inc., its General Partner
By________________________________
Title_____________________________
Address:
85 Broad Street
New York, New York 10004
Attention: Chief Financial Officer
Fax: 212-357-5505
-15-
<PAGE> 16
Solely as to Section 6(b):
WHRC REAL ESTATE LIMITED PARTNERSHIP
By: WHRC Gen-Par, Inc., its General Partner
By_______________________________
Title____________________________
Address:
85 Broad Street
New York, New York 10004
Attention: Chief Financial Officer
Fax: 212-357-5505
-16-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM RCPI TRUST'S
BALANCE SHEET AS OF JUNE 30, 1999 AND RCPI TRUST'S STATEMENT OF OPERATIONS FOR
THE QUARTER ENDED JUNE 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> APR-01-1999
<PERIOD-END> JUN-30-1999
<CASH> 46,144
<SECURITIES> 0
<RECEIVABLES> 4,509
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 145,418
<PP&E> 882,582
<DEPRECIATION> 55,201
<TOTAL-ASSETS> 1,023,452
<CURRENT-LIABILITIES> 28,914
<BONDS> 684,126
0
0
<COMMON> 0
<OTHER-SE> 310,412
<TOTAL-LIABILITY-AND-EQUITY> 1,023,452
<SALES> 0
<TOTAL-REVENUES> 60,080
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 33,196
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 18,091
<INCOME-PRETAX> 8,793
<INCOME-TAX> 0
<INCOME-CONTINUING> 8,793
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8,793
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
