EXHIBIT 4.6
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CREDIT AGREEMENT
AMONG
RCPI TRUST,
BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
AND
NATIONSBANK OF TEXAS, N.A.,
AS AGENT
DATED AS OF MAY 16, 1997
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS............................................................................................1
1.1 DEFINED TERMS................................................................................................1
1.2 OTHER DEFINITIONAL PROVISIONS...............................................................................20
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................20
2.1 COMMITMENTS.................................................................................................20
2.2 NOTES.......................................................................................................20
2.3 PROCEDURE FOR BORROWING.....................................................................................21
2.4 UNUSED COMMITMENT FEE.......................................................................................21
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............................................................................25
2.13 INABILITY TO DETERMINE INTEREST RATE........................................................................26
2.14 PRO RATA TREATMENT AND PAYMENTS.............................................................................26
2.15 ILLEGALITY..................................................................................................27
2.16 REQUIREMENTS OF LAW.........................................................................................27
2.17 TAXES.......................................................................................................28
2.18 INDEMNITY...................................................................................................30
2.19 LENDING OFFICES; CHANGE OF LENDING OFFICE...................................................................31
2.20 CERTIFICATES, ETC...........................................................................................31
SECTION 3. REPRESENTATIONS AND WARRANTIES........................................................................32
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..................................................................................................34
3.8 OWNERSHIP OF PROPERTY; CONDITION OF TITLE; LEASES MAJOR SPACE LEASES AND MAJOR
RETAIL LEASES; LIENS; OTHER AGREEMENTS......................................................................34
3.9 INTELLECTUAL PROPERTY.......................................................................................36
3.10 TAXES.......................................................................................................36
3.11 FEDERAL REGULATIONS.........................................................................................37
3.12 ERISA.......................................................................................................37
3.13 INVESTMENT COMPANY ACT; OTHER REGULATIONS...................................................................37
3.14 SUBSIDIARIES................................................................................................37
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3.15 ACCURACY AND COMPLETENESS OF INFORMATION....................................................................38
3.16 LABOR RELATIONS.............................................................................................38
3.17 INSURANCE...................................................................................................38
3.18 SOLVENCY....................................................................................................38
3.19 PURPOSE OF LOANS............................................................................................39
3.20 ENVIRONMENTAL MATTERS.......................................................................................39
3.21 OBLIGATION TO CONVEY........................................................................................40
3.22 CERTAIN EXISTING INDEBTEDNESS...............................................................................40
SECTION 4. CONDITIONS PRECEDENT..................................................................................41
4.1 CONDITIONS TO INITIAL LOANS.................................................................................41
4.2 CONDITIONS TO EACH LOAN.....................................................................................44
SECTION 5. AFFIRMATIVE COVENANTS.................................................................................45
5.1 FINANCIAL STATEMENTS........................................................................................45
5.2 CERTIFICATES; OTHER INFORMATION.............................................................................46
5.3 PAYMENT OF OBLIGATIONS......................................................................................47
5.4 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE............................................................48
5.5 MAINTENANCE OF PROPERTY; INSURANCE..........................................................................48
5.6 DAMAGE, DESTRUCTION, CONDEMNATION...........................................................................50
5.7 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS......................................................53
5.8 NOTICES.....................................................................................................53
5.9 ENVIRONMENTAL LAWS..........................................................................................54
5.10 PROPERTY MANAGER............................................................................................54
5.11 CONDOMINIUM DOCUMENTS; EXPENSE SHARING AGREEMENT............................................................54
5.12 ASBESTOS....................................................................................................55
5.13 ESTOPPEL CERTIFICATES.......................................................................................55
SECTION 6. NEGATIVE COVENANTS....................................................................................55
6.2 LIMITATION ON INDEBTEDNESS AND HEDGING OBLIGATIONS..........................................................55
6.2 LIMITATION ON LIENS.........................................................................................56
6.3 LIMITATION ON GUARANTEE OBLIGATIONS.........................................................................57
6.4 LIMITATION ON FUNDAMENTAL CHANGES...........................................................................57
6.5 LIMITATION ON SALE OF ASSETS................................................................................57
6.6 LIMITATION ON RESTRICTED PAYMENTS...........................................................................58
6.7 LIMITATION ON CAPITAL EXPENDITURES..........................................................................59
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..........................................................................61
6.16 LIMITATION ON SECURITIES ISSUANCES..........................................................................62
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6.17 ASBESTOS....................................................................................................62
6.18 ALTERATIONS, MAINTENANCE, REPAIRS, WASTE....................................................................62
6.19 LIMITATIONS ON LEASING......................................................................................62
SECTION 7. EVENTS OF DEFAULT.....................................................................................62
SECTION 8. THE AGENT.............................................................................................66
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...........................................................................................68
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
SECTION 9. MISCELLANEOUS.........................................................................................70
9.1 AMENDMENTS AND WAIVERS......................................................................................70
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.........................................................................77
9.13 ACKNOWLEDGMENTS.............................................................................................77
9.14 WAIVERS OF JURY TRIAL.......................................................................................78
9.15 CONFIDENTIALITY.............................................................................................78
9.16 RECOURSE....................................................................................................78
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
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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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit E Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of May 16, 1997, among RCPI TRUST, a
Delaware business trust (the "Borrower"), the lenders from time to time parties
to this Agreement (the "Lenders") and NATIONSBANK OF TEXAS, N.A., a national
banking association, as 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 RCPI,
RCPI Holdings, Inc., a Delaware corporation ("Holdings"), 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. 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
$100,000,000, the proceeds of which would be used to refinance certain
indebtedness of the Borrower, to pay or refinance certain settlement
obligations, to finance certain capital expenditures 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:
"Accelerated Amortization Payment": as defined in Section 2.11(e).
"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.
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"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 of Texas, 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.
"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 "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 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
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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 below opposite the
applicable period set forth below:
Eurodollar Base Rate
Period Loans Loans
----------------- --------------- --------------
Initial Term 1.75% 0.50%
Extension Term 2.125% 0.875%
"Arranger": NationsBanc Capital Markets, Inc., as the arranger 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.
"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
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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 ▇▇▇▇▇'▇ 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 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
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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.
"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
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and West 50th Street, New York, N.Y.,
pursuant to Article 9-B of the Real Property Law of the 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
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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 scheduled to be paid during such
period (determined without giving effect to any optional prepayments of the
Loans pursuant to Section 2.10 or optional reductions of the Commitments
pursuant to Section 2.5 made at any time), (ii) all interest accrued or
payable on the Loans during such period (after giving effect to any
principal payments made on account of the 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
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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.
"Engineers Reports": collectively, (a) the report of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Inc., dated September 2, 1995, (b) the report of ▇▇▇▇▇▇▇▇ Architects, dated
September, 1995, (c) the report of ▇▇▇▇▇▇▇ & ▇▇▇▇, P.C., not dated, (d) the
report of ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇/Engineers, dated August 28, 1995, (e) the
report of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc., Engineers, dated ▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the
report of Facilities Technology Consultants, Inc., dated August 25, 1995,
and (g) the report of Landmark Elevator Consultants as edited by ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Inc., dated September 2, 1995, in each case addressed to Tishman
with respect to the Properties.
"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
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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%):
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.
-8-
"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.
"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 the date hereof,
between the Borrower and NationsBank, as the same may be amended,
supplemented or otherwise modified from time to time.
"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
-9-
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 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 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-▇▇▇▇▇▇▇▇, Inc., a New York corporation ("Rock-▇▇▇▇▇▇▇▇"), 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-▇▇▇▇▇▇▇▇, Inc., recorded May 16, 1963 in Liber 5232 cp 130,
as assigned by the Assignment of Lease, dated May 22, 1963, made by
Rock-▇▇▇▇▇▇▇▇, 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
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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.
"GSMC": ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, a New York limited
partnership.
"GSMC Loan": the loan, in the original principal amount of
$10,000,000, owing by the Borrower to GSMC pursuant to the GSMC Loan
Agreement and the other GSMC Loan Documents.
"GSMC Loan Agreement": the Amended and Restated Loan Agreement among
the Borrower, the lenders parties thereto and GSMC, as agent, dated as of
July 17, 1996.
"GSMC Loan Documents": the "Loan Documents" as defined in the GSMC
Loan Agreement.
"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 guaranteeing person may be
liable are not stated or determinable, in which case the
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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": RCPI Holdings, Inc., a Delaware corporation, including,
upon the merger of RCPI with and into RCPI Holdings, Inc., a Delaware
corporation, the surviving corporation of such merger.
"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 Intercreditor and Subordination
Agreement to be executed and delivered by the Agent, on behalf of the
Lenders, the holder(s) of the 14% Debentures, Whitehall and the Borrower,
in form as agreed among the Borrower, Whitehall, the holder(s) of the 14%
Debentures and the Agent, 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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(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; Derrycroft Enterprises, Inc., a Delaware
corporation; FIMA Finance Management Inc., a British Virgin Islands
corporation; Rockprop, L.L.C., a Delaware limited liability company;
Troutlet Investments Corporation, a British Virgin Islands corporation;
▇▇▇▇▇▇▇ 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, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, EXOR
Group S.A., 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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"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, violation, encumbrance, lien (statutory, ▇▇▇▇▇▇, 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": RCPI Investors LLC, a Delaware limited liability company.
"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).
-14-
"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": the Agreement and Plan of Merger, dated as of
November 7, 1995, as amended, among RCPI, Holdings, RCPI Merger and certain
investors party thereto.
"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 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).
-15-
"Net Proceeds": (i) the aggregate cash consideration received by the
Borrower or a Subsidiary in connection with any Release or any transaction
referred to in Section 2.11(b) less (ii) the actual expenses (including
out-of-pocket expenses) incurred by the 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.
"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": Rockefeller Center Properties, Inc., a Delaware corporation.
"RCPI Merger": RCPI Merger, Inc., a Delaware corporation.
"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 May
14, 1997 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 .13, .14, .16, .18, .19 or .20 of PBGC Reg. Sec.
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
-18-
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 the Closing Date for any one tenant.
"Termination Date": June 30, 1998.
"Test Period": any period of four consecutive fiscal quarters of the
Borrower ended during 1998 or any subsequent year.
"Tishman": ▇▇▇▇▇▇▇-▇▇▇▇▇▇ 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.
"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
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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 19, 1997, 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 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
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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). Each
borrowing under the Commitments shall be in an amount equal to at least
$1,000,000, provided that the initial borrowing under the Commitments shall be
in an amount not less than $55,000,000. 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 Unused Commitment Fee. The Borrower agrees to pay to the Agent for
the account of each Lender an unused commitment fee for the period from and
including the first day of the Commitment Period to the earlier of the
Termination Date and the first day on which the aggregate principal amount of
all Loans borrowed from and after the Closing Date exceeds 75% of the aggregate
Commitments as in effect on the Closing Date, computed at the rate of 0.25% per
annum on the average daily amount of the Available Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Termination Date
or such earlier date as the Commitments shall terminate as provided herein,
commencing June 30, 1997.
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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.
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 72.5%;
(e) the Debt Service Coverage Ratio for the Test Period ended December
31, 1999 shall not be less than 1.55 to 1;
(f) 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
(g) 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.
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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.
(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
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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 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 (x) if such Release is made pursuant to Section 6.5(a)(i), the
Release Price of such Property (or portion thereof), and (y) if such Release is
made pursuant to Section 6.5(a)(ii), the portion of the Net Proceeds of the sale
of such Property (or portion thereof) specified in Section 6.5(a)(ii); and (ii)
upon the sale or other disposition of the Air Rights, the Borrower shall prepay
the Loans in an amount equal to 10% of the Net Proceeds of such sale.
(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 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), 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 first quarter of 1998), the 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 14% Debenture Quarterly Amount for the 14%
Debenture Interest Payment Date next occurring after the last day of such
quarter (any such prepayment pursuant to this Section 2.11(e), an "Accelerated
Amortization Payment").
Such calculations of 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 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 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 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.
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(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 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
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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);
(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
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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 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
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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;
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
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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.
(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
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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
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:
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3.1 Financial Condition. (a) The balance sheet of the Borrower as at
December 31, 1996 and the related statements of income and of cash flows for the
fiscal year ended on such date, reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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, 1996 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, 1996.
(b) The pro forma balance sheet of the Borrower as at March 31, 1997,
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 $55,000,000, (ii) the application of the proceeds of the Loans to (A)
the repayment in full of all principal, interest and other amounts owing on the
GSMC Loan, (B) the distribution of $44,100,000 by the Borrower to the Investors
and (iii) the payment of all fees and expenses related to the foregoing
transactions, 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, 1997, 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, 1996 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, 1996 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 or otherwise acquired for value by
the Borrower, any Investor or any of their respective Affiliates or
Subsidiaries.
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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 of its or their respective properties
or revenues pursuant to any such Requirement of Law or material Contractual
Obligation.
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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 ▇▇▇▇▇▇ ▇▇▇▇ for the refinancing of the mortgage loan made by RCPI
to RCP Associates and Rockefeller Center Properties (including without
limitation the actions captioned ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Opportunity
Partners Limited Partnership III ▇. ▇▇▇▇▇▇▇▇▇▇▇ Center Properties, Inc., 96 Civ.
1445, United States District Court, Southern District of New York, and
Rockefeller Center Properties, Inc. ▇. ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ 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.
(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 and the Property Management Agreement) which require payments by the
Borrower in excess of
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$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 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
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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 G or 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 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
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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 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 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
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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 $55,000,000, the
application of the proceeds of such Loans to the repayment in full of all
principal, interest and other amounts owing on the GSMC Loan, and the
distribution of $44,107,504 by the Borrower to RCPI and the LLC, (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. Subject to Section 6.6(a), the proceeds of the
Loans shall be used by the Borrower only for the repayment in full of all
principal, interest and other amounts owing on the GSMC Loan, the distribution
permitted under Section 6.6(a), the payment of property tax expenses, the
payment of interest on the 14% Debentures in accordance with the terms hereof
and of the Intercreditor Agreement, the payment of the purchase price of any
Zeros repurchased by the Borrower in accordance with the terms hereof,
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the funding of tenant work allowances and leasing commissions incurred before
and after the Closing Date, the funding of capital expenditures on the
Properties identified as necessary on the Engineer's Report, the funding of
other capital improvements on the Properties incurred before or after the
Closing Date to the extent permitted hereunder, and for the general working
capital 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 or 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.
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(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 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 $410,000,000.
(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).
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,
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(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 the 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 GSMC
Loan Documents, 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) Concurrent Transactions. All amounts owing to GSMC under the GSMC
Loan Documents shall have been, or shall be concurrently with the making of
the initial Loans, repaid in full, and the GSMC Loan Document shall
terminate and be of no further force and effect upon such repayment, in
each case pursuant to such payout letters and other documents as the Agent
may require, each of which shall be inform and substance satisfactory to
the Agent.
(d) Initial Capitalization. The Agent shall have received (i) evidence
satisfactory to it that the Investors shall have made initial capital
investments in the Borrower in an aggregate amount of not less than
$344,107,504, and (ii) a certificate of the Borrower certifying that no
distributions have been made of the Investors' initial capital
contributions prior to the making of the initial Loans on the Closing Date.
(e) 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.
(f) Proceedings of the Borrower. The Agent shall have received a copy
of the resolutions, in form and substance satisfactory to the Agent, of the
Board of Trustees 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
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and substance satisfactory to the Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) Fees. The Agent shall have received the fees to be received on the
Closing Date referred to in the Fee Letter.
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(m) Legal Opinions. The Agent shall have received, with a counterpart
for each Lender, the executed legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
to the Borrower and certain of the Loan Parties, substantially in the form
of Exhibit D, and 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.
(n) 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.
(o) 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.
(p) 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 Debt to Value Ratio
(determined on a pro forma basis assuming the borrowing of Loans in the
full amount of the Commitments, the application of the proceeds of the
Loans to the payments contemplated in the Pro Forma Balance Sheet as
specified in Section 3.1(b), an aggregate outstanding principal amount of
14% Debentures equal to $75,000,000 and an aggregate accreted principal
amount of Zeros equal to approximately $410,000,000) as of the date of such
appraisal of not greater than 65%.
(q) 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.
(r) 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, from
the Closing Date through June 29, 1997, $55,000,000, from June 30, 1997
through August 30, 1997, $75,000,000, from August 31, 1997 through November
29, 1997, $85,000,000 and thereafter, the Maximum Allowable Loan Balance
set forth in Schedule 2.2, (a)(i) fixing for the first two years following
the Closing Date, the Eurodollar Base Rate at not more than 2.0% above the
Eurodollar Rate as in effect on the Closing Date, and (ii) fixing for the
third year following the Closing Date, the Eurodollar Base Rate at not more
than 3.0% above the Eurodollar Rate as in effect on the Closing Date or (b)
containing
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such terms as may be agreed to by the Borrower and the Agent and are
standard and customary for transactions of this kind.
(s) Estoppel Certificates. The Agent shall have received estoppel
certificates, in form and substance satisfactory to the Agent, from each
tenant under the Scheduled Leases, except (i) with respect to any of such
Leases which do not by their terms require the tenant thereunder to provide
estoppel certificates, and (ii) with respect to any of such Leases as to
which the Borrower shall not, after using commercially reasonable efforts,
have been successful in obtaining such estoppel certificates.
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).
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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:
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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);
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;
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(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 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 5.3(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
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Borrower as being true and correct based upon the best information then
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 permitted pursuant to
Section 6.4; comply with all Contractual Obligations and Requirements
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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
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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.
(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
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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 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 Net
Proceeds of any insurance award thereto, or (y) apply the Net Proceeds of any
insurance award 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 prepayment of the
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
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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 prepayment
of the 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.
(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 Net Proceeds of any award
thereto, or (y) apply the Net Proceeds of any award received by the Borrower 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 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 prepayment of the 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
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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 prepayment of the 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.
(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 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
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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 Charal Investment Co. ▇. ▇▇▇▇▇▇▇▇▇▇▇, et al., U.S. District
Court, District of Delaware, 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
Charal 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 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 commercial 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
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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 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.
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5.13 Estoppel Certificates. For a period of 120 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.
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, directly or indirectly:
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 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(r);
(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; and
(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.
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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;
(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; and
(g) 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
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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 either:
(i) (A) 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), (B) no Default under Section 7(a) or Event of Default has
occurred and is continuing or would result therefrom, and (C)
concurrently with such Release the Borrower prepays 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 and Zeros, the Debt
to Value Ratio shall be equal to or less than 65%, or
(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 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 and 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) 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;
(b) the sale or other disposition of obsolete or worn out property
(other than any Property) in the ordinary course of business;
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(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) prior to December 31, 1997, the Borrower may distribute up to
$44,107,504 to RCPI and the LLC, for further ultimate distribution to the
Investors, provided that no such distributions shall be permitted if,
either before or after giving effect to such distribution, any Default
under Section 7(a) or any Event of Default is or will be continuing;
(b) at any time after December 31, 1997, the Borrower may make
additional distributions to RCPI (or, after the merger of RCPI with and
into Holdings, Holdings) and the LLC, so long as:
(i) the 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
(c) the Borrower may make distributions of Net Proceeds of any
Release provided that (i) the Borrower shall have made all prepayments
required to be
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made pursuant to Section 2.11 in respect of such Release, and (ii) 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.
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 the Borrower's fiscal year
ended December 31, 1997, $36,240,000, and during any subsequent 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, 1997 $14,000,000
December 31, 1998 $34,000,000
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, except that the Borrower may repurchase Zeros and may repay
Indebtedness and Hedging Obligations
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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 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, 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, and (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), 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.
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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, 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
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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, 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 or any "Event of Default" as defined in the Zeros
Indenture 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
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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 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
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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 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 (or, after the merger of RCPI with and into Holdings,
Holdings) and the LLC shall cease to own, beneficially and of record, 100%
of the equity ownership of the Borrower, or (ii) prior to the merger of
RCPI with and into Holdings, Holdings shall cease to own, beneficially and
of record, 100% of the common equity ownership of RCPI, or (iii) one or
more of the Investors, and/or one or more other wholly-owned Subsidiaries
of any Key Principals, taken as a whole, cease to own, beneficially and of
record, 100% of the common equity ownership of Holdings 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 Holdings 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 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) Whitehall shall at any time prior to May 16, 1998 fail to maintain
an economic interest in the 14% Debentures such that if 14% Debentures in
an aggregate principal amount of $75,000,000 are not repaid in full, then
Whitehall would be subject to the same risk of loss, and would suffer the
economic effect of such nonpayment, to the same extent as if Whitehall
owned the 14% Debentures directly; or
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(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,
Holdings 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 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, the LLC or Holdings in the Charal 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.
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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 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
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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, 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
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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 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.
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
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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 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.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
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Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Whitehall Street Real Estate Limited Partnership V
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇;
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Israel, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Agent: NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
and
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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. 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 the Agent or Arranger),
to an aggregate amount not to exceed the lesser of $10,000 per Lender and
$50,000) 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, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, special
counsel to the Agent, (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
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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 or any such Lender or (ii) legal proceedings commenced
against the Agent 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.
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.
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(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), 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 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 $10,000,000 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(g) 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.
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(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.
(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 under Section 9.6(c) shall be permitted unless, immediately
after giving effect to such assignment, NationsBank of Texas, N.A.'s Commitment
and Loans shall be not less than 20% 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
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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 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;
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(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 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 ▇▇▇ 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 and each Lender agrees to keep
confidential all information provided to it by the Borrower or any Loan Party
pursuant to this Agreement;
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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
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]
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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 OF TEXAS, N.A.,
as Agent and as a Lender
By:
--------------------------------------
Title:
Credit Agreement: Signature Page
SCHEDULE I
LENDERS, COMMITMENTS AND LENDING OFFICES
Lender, Lending Offices and Notice Addresses Commitment
NATIONSBANK OF TEXAS, N.A. $100,000,000
Eurodollar Lending Offices: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Base Rate Lending Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Notice Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
TOTAL: $100,000,000
SCHEDULE 1.1(a)
PROPERTIES, ALLOCATED LOAN AMOUNTS AND MINIMUM NET SALE PRICES
PARCEL Nature of Property Interest
(1250 Avenue of the Americas - ▇/▇ ▇▇▇▇▇▇ ▇-▇) ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇, fee
1003, 1005, 1007, 1058-1070, 1073, 1074, 1076, 1077, 1080, 1081, 1092
and 1093 and RGI Unit Lot 1004
(1250 AVENUE OF THE AMERICAS - ▇/▇ ▇▇▇▇▇▇ ▇-▇) ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 1054 fee
(1250 AVENUE OF THE AMERICAS - ▇/▇ ▇▇▇▇▇▇ ▇-▇) ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇ fee
and ▇▇▇▇
(▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ - ▇/▇ ▇▇▇▇▇▇ ▇-▇) ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇ ▇▇▇▇ fee
and 1031-104
(610 FIFTH AVENUE - PARCEL A-2) Block 1265 - ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
(▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇-▇) ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇ ▇▇ ▇▇▇
(▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇-▇) ▇▇▇▇▇ ▇▇▇▇ - ▇▇▇ ▇▇▇▇ fee
1, 9 ROCKEFELLER PLAZA - P/O PARCEL C) Block 1264 - Part of Lot 5 fee
(1220-1236 AVENUE OF THE AMERICAS - UNIDENTIFIED P/O PARCEL) Block leasehold
1264 - Remainder of ▇▇▇ ▇
▇, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ E-1, E-2 AND E-3) Block 1264 - Part fee
of ▇▇▇ ▇▇
(▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇/▇ ▇▇▇▇▇▇ E-4) Block 1264 - Remainder Part of leasehold
▇▇▇ ▇▇
(▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ D) Block 1265 - Lot 71 fee
(1260-1276 AVENUE OF THE AMERICAS - P/O PARCEL B) Block 1266 - Lot 1 fee
(excluding Radio City Music Hall)
PROPERTY ALLOCATED LOAN AMOUNT MINIMUM NET SALES PRICE
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $28,900,000 $260,100,000
International Building $18,100,000 $162,900,000
One Rockefeller Plaza $6,800,000 $61,200,000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ $5,000,000 $45,000,000
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $5,400,000 $48,600,000
1230 Avenue of the Americas $10,200,000 $91,800,000
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $7,400,000 $66,600,000
1270 Avenue of the Americas (excluding $3,500,000 $31,500,000
Radio City Music Hall
French Building $3,000,000 $27,000,000
British Building $3,700,000 $33,300,000
Radio City Music Hall $8,000,000 $72,000,000
TOTAL $100,000,000 $900,000,000
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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and
the westerly side of ▇▇▇ ▇▇▇▇▇▇;
RUNNING THENCE along the westerly side of ▇▇▇ ▇▇▇▇▇▇ 200 feet 10 inches to
the intersection of the westerly side of ▇▇▇ ▇▇▇▇▇▇ and the southerly side of
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE westerly along the southerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
THENCE easterly along the northerly side of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 315 feet 0
inches to the westerly side of ▇▇▇ ▇▇▇▇▇▇ to the point or place of BEGINNING.
Schedule 1.1(b)
CAPITAL EXPENDITURES ADJUSTMENTS
BUILDING Percentage
30 Rockefeller Plaza (Condominium Buildings)
RCPI Trust Units 22.9504%
NBC Units 0%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 2.1754%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 2.1096%
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇▇▇▇%
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 9.6536%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 21.1761%
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 8.0619%
1230 Avenue of the Americas 12.2724%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 7.4047%
1270 Avenue of the Americas 8.1930%
Rockefeller Plaza (Sunken Plaza) 0.3664%
Subway Mezzanine 0%
1258 Avenue of the Americas 0%
1240 Avenue of the Americas 0%
Radio City Music Hall 0%
Auction Premises 0%
Garage 0%
TOTAL: 100%
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:
MAXIMUM BALANCE
DATE ALLOWABLE LOAN
BALANCE
June 30, 1997 $100,000,000
September 30, 1997 $100,000,000
December 31, 1997 $100,000,000
March 31, 1998 $95,000,000
June 30, 1998 $90,000,000
September 30, 1998 $85,000,000
December 31, 1998 $80,000,000
March 31, 1999 $73,750,000
June 30, 1999 $67,500,000
September 30, 1999 $61,250,000
December 31, 1999 $55,000,000
March 31, 2000 $45,000,000
May 16, 2000 $0, or if the
Maturity Date shall
have been extended
pursuant to Section
2.6, $45,000,000
June 30, 2000 $35,000,000*
September 30, 2000 $25,000,000*
December 31, 2000 $0*
*Only if the Maturity Date shall have been extended pursuant to Section 2.6.
EXHIBIT B
TAX STATUS CERTIFICATE
Reference is hereby made to the Credit Agreement, dated as of May 16,
1997, among RCPI Trust, a Delaware business trust, the lenders parties thereto,
and NationsBank of Texas, N.A., as agent (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"). Pursuant to the
provisions of Section 2.17(b)(i)(B) of the Credit Agreement, the undersigned
hereby certifies that it is not a "bank" as such term is defined in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended.
[NAME OF LENDER]
By:
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Title:
Date: , 19
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