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AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated as of February 12, 1996,
among ROCKEFELLER CENTER PROPERTIES, INC., a Delaware
corporation ("RCPI"), WHITEHALL STREET REAL ESTATE LIMITED
PARTNERSHIP V, a Delaware limited partnership ("Whitehall"),
ROCKPROP, L.L.C., a Delaware limited liability company
("Rockprop"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇"), EXOR GROUP
S.A., a Luxembourg investment holding company ("Exor"),
TROUTLET INVESTMENTS CORPORATION, a British Virgin Islands
private company ("Troutlet," and together with Whitehall,
Rockprop, Rockefeller and Exor, the "Investors"), RCPI
HOLDINGS INC., a Delaware corporation ("Parent"), RCPI MERGER
INC., a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub"), to the Agreement and Plan of Merger, dated as
of November 7, 1995 (the "Merger Agreement"), among RCPI,
Parent, Sub and the Investors.
WHEREAS, the parties hereto desire to amend the
Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained herein and for other good
and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
1. Defined Terms; Section References.
Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings ascribed
thereto in the Merger Agreement. Unless otherwise indicated,
all section references herein are to Sections of the Merger
Agreement.
2. Merger of Sub into Parent.
Prior to the Effective Time, in accordance with the
DGCL, Sub shall be merged with and into Parent, the separate
corporate existence of Sub shall cease and Parent shall be the
surviving corporation in the merger. In accordance with the
DGCL, all of the rights, privileges, powers, immunities,
purposes and franchises (collectively, "Rights") of Parent and
Sub (including, without limitation, the Rights of each of
Parent and Sub under the Merger Agreement) shall vest in
Parent, and all of the debts, liabilities, obligations and
duties (collectively, "Obligations") of Parent and Sub
(including, without
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limitation, the Obligations of each of Parent and Sub under
the Merger Agreement) shall become the Obligations of Parent.
3. Certain Bankruptcy-related Matters.
(a) The final sentence of Section 4.2(h)(i) shall
be revised (i) by inserting after the phrase "but in any event
so as to allow the Joint Plan for Borrower" the phrase "or any
Alternative Chapter 11 Plan (as defined below)" and (ii) by
deleting the words "February 29, 1996" and replacing such
words with the words "March 31, 1996."
(b) The second sentence of Section 5.2(e) shall be
amended and restated as follows:
The maximum amount to be provided (or assumed) by
RCPI under the Joint Plan for Borrower or under any
Alternative Chapter 11 Plan to be used to fund
liabilities of the Borrower or its estate shall not
exceed (x) $20 million (exclusive of the debtor-in-
possession financing permitted under
Section 4.2(b)(Q)) of liabilities related to
administrative expenses, claims entitled to priority
under the Bankruptcy Code, cure payments relating to
leases and other executory contracts to be assumed
(including tenant improvements) reasonably
acceptable to Parent, and certain general unsecured
claims reasonably acceptable to Parent, and (y) all
unpaid Allowed Ordinary Course Administrative
Operating Expense Claims (as defined in the Joint
Plan for Borrower or an Alternative Chapter 11
Plan), subject to the right to object to such claims
as provided for under the Joint Plan for Borrower or
an Alternative Chapter 11 Plan.
(c) In addition to the conditions to the
obligations of Parent and each of the Investors set forth in
Section 5.2, the obligations of Parent and each of the
Investors under the Merger Agreement to consummate the
transactions contemplated thereby are subject to the
satisfaction of the condition that all conditions to the
occurrence of the effective date of the Joint Plan for
Borrower or an Alternative Chapter 11 Plan shall have been
satisfied or waived.
4. GSMC Loans.
(a) Section 4.4(b) shall be amended by adding the
following language immediately after the words "plus (B) $12
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million to pay Permitted Expenses if the Closing Date shall
not have occurred on or before December 31, 1995,":
"plus (C) $2.5 million to pay Permitted Expenses if
the Closing Date shall not have occurred on or
before ▇▇▇▇▇ ▇▇, ▇▇▇▇,".
(▇) Section 4.4(b) shall be further amended by
replacing the word "and" immediately prior to clause (2) with
a "," and adding the following language at the end of the
first sentence:
"and (3) of the amount described in clause (C), an
amount sufficient to pay all interest that will
become due from RCPI to Whitehall and GSMC on or
before April 30, 1996 shall be available only to pay
such interest".
(c) Section 4.4(b) shall be further amended by
replacing the words "March 31, 1996" in the proviso in the
second sentence thereof with the words "April 30, 1996".
5. Satisfaction of Certain Conditions.
The parties acknowledge and agree that the
conditions to the obligations of Parent and each Investor to
consummate the transactions contemplated by the Merger
Agreement set forth in Sections 5.2(j) and (k) have been
satisfied.
6. Additional Matter.
As of the date hereof, none of the Investors has
actual knowledge of the occurrence of a material adverse
change in the financial condition of RCPI or the financial or
physical condition of the Property since December 31, 1994
within the meaning of Section 5.2(c).
7. Termination Date.
Section 6.1(d) shall be amended by deleting the
words "March 31, 1996" from the first clause thereof, and
replacing such words with the words "April 30, 1996."
8. Schedule A
Schedule A to the Merger Agreement shall be amended
to include the cash flow projections for RCPI set forth on
Schedule 1 hereto.
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9. Miscellaneous.
(a) This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of New York
(other than its rules of conflicts of law to the extent that
the application of the laws of another jurisdiction would be
required thereby); provided, however, that with respect to
matters of corporate law, the DGCL shall govern.
(b) Except as amended hereby, the Merger Agreement
shall in all respects continue in full force and effect.
(c) This Amendment No. 1 may be executed in one or
more counterparts, each of which shall be an original and all
of which, when taken together, shall constitute one and the
same instrument.
IN WITNESS WHEREOF, each of the parties has signed
or caused this Agreement to be signed as of the date first
above written.
ROCKEFELLER CENTER PROPERTIES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By:________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
RCPI HOLDINGS INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
RCPI MERGER INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
LIMITED PARTNERSHIP V
By: W.H. Advisors L.P. V,
General Partner
By: WH Advisors, Inc. V,
General Partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By:______________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
ROCKPROP, L.L.C.
By: Tishman Speyer Crown Equities
its Managing Member
By: Tishman Speyer Associates
Limited Partnership, General
Partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:______________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
By: TSE Limited Partnership, General
Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
_____________________________________*
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
*By:________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Attorney-in-Fact
EXOR GROUP S.A.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By:________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
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TROUTLET INVESTMENTS CORPORATION
/s/ Squire ▇. ▇▇▇▇▇▇▇
By:________________________________
Name: Squire ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
For Purposes of Section 4 hereof only:
▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding Corp.,
General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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Schedule 1
Projected REIT Cash Flow for April 1996(1)
April 1996
Cash Sources
Beginning Cash Balance $0.2
Estimated Interest Income -
GSMC Loan 2.5
$2.7
Cash Requirements
Interest Expense
Current Coupon Convertible Debentures -
Zero Coupon Convertible Debentures -
Floating Rate Notes -
14% Debentures -
Working Capital -
Total Interest Expense -
Total G&A Expenses $1.7
Swap Expenses 0.9
Repayment of Unsecured Debt -
Total Cash Requirements $2.6
Ending Cash Balance(2) $0.1
(1) All numbers have been rounded to the nearest $100,000.
(2) Assumes waiver of the net cash flow sweep and interest reserve
requirements upon signing of the Merger Agreement.