EXHIBIT 4.7
INTERCREDITOR AND SUBORDINATION AGREEMENT
INTERCREDITOR AND SUBORDINATION AGREEMENT, dated as of May 16, 1997, by
and among the registered holder of the 14% Debentures (defined as hereinafter
provided) (the "Holder"), WHRC REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("Whitehall"), RCPI TRUST, a Delaware business trust
(together with its successors and assigns, the "Borrower"), and NATIONSBANK OF
TEXAS, N.A., a national banking association, as agent (together with its
successors and assigns in such capacity, the "Agent") for the Lenders parties to
the Senior Credit Agreement (as hereinafter defined).
The parties hereto hereby agree as follows:
1. Definitions. (a) Unless otherwise defined herein, terms defined in
the Senior Credit Agreement and used herein shall have the meanings given to
them in the Senior Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Intercreditor and Subordination Agreement, as the
same may be amended, modified or otherwise supplemented from time to time.
"Blockage Period": any of:
(a) any period commencing on the date a Default Blockage Notice is
given and ending on the earlier to occur of:
(i) the date when the Event of Default that was the basis for
such Default Blockage Notice has been cured or waived; and
(ii) 180 days after the date such Default Blockage Notice is
given; and
(b) any period commencing on the date that the Borrower is required to
make any prepayment pursuant to Section 2.11(e) of the Senior Credit Agreement
and ending on the first 14% Debenture Interest Payment Date thereafter (i) which
occurs after the time when at least two complete fiscal quarters have elapsed
since the date the Borrower is required to make such prepayment and (ii) on
which the Debt Service Coverage Ratio for each of the Test Periods ended on the
last days of each of the fiscal quarters of the Borrower ended after the
immediately preceding 14% Debenture Interest Payment Date shall have been 1.40
to 1 or greater.
"Default Blockage Notice": a written notice from the Agent to the
Borrower given as provided in the Senior Credit Agreement that a Non-Payment
Event of Default has occurred and is continuing.
"Insolvency Event": (1) The Borrower or any of its Material
Subsidiaries commencing any case, proceeding or other action (i) under any
existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, conservatorship or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (ii) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or the Borrower or any of its Material
Subsidiaries making a general assignment for the benefit of its creditors; or
(2) there being commenced against the Borrower or any of its Material
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (1) above which (i) results in the entry of an order for relief or any
such adjudication or appointment or (ii) remains undismissed, undischarged or
unbonded for a period of 60 days; or (3) there being commenced against the
Borrower or any of its Material Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (4) the Borrower or any of its Material Subsidiaries taking any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (1), (2) or (3) above; or
(5) the Borrower or any of its Material Subsidiaries generally not paying, or
being unable to pay, or admitting in writing its inability to pay, its debts as
they become due.
"Material Subsidiary": any Subsidiary of the Borrower having assets
(other than the Air Rights) with a fair market value in excess of $10,000,000.
"Non-Payment Event of Default": any event (other than a Payment Event
of Default) the occurrence of which entitles one or more of the Senior Lenders
to accelerate the maturity of any of the Senior Obligations.
"Payment Event of Default": any default in the payment of the Senior
Obligations (whether upon maturity, mandatory prepayment, acceleration or
otherwise) beyond any applicable grace period with respect thereto.
"Senior Credit Agreement": the Credit Agreement, dated as of May 16,
1997, among the Borrower, the Agent and the Lenders parties thereto from time to
time, as such Credit Agreement may be amended, modified, supplemented or
replaced from time to time, including, without limitation, amendments,
modifications, supplements and restatements thereof giving effect to increases,
renewals, extensions, refundings, deferrals, restructurings, replacements or
refinancings of, or additions to, the arrangements provided in such Credit
Agreement (whether provided by the original Agent and Lenders under such Credit
Agreement or a successor Agent or other Lenders).
"Senior Lenders": the holders from time to time of Senior Obligations.
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"Senior Loan Documents": the collective reference to the Senior Credit
Agreement, the Senior Notes and all other documents that from time to time
evidence the Senior Obligations or secure or support payment or performance
thereof.
"Senior Loans": the loans made by the Senior Lenders to the Borrower
pursuant to the Senior Credit Agreement.
"Senior Notes": the promissory notes of the Borrower outstanding from
time to time under the Senior Credit Agreement.
"Senior Obligations": the collective reference to the unpaid principal
of and interest on the Senior Notes and all other obligations and liabilities of
the Borrower to the Agent and the Senior Lenders (including, without limitation,
interest accruing at the then applicable rate provided in the Senior Credit
Agreement after the maturity of the Senior Loans and interest accruing at the
then applicable rate provided in the Senior Credit Agreement after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Senior Credit Agreement, the Senior Notes, this Agreement, the other
Senior Loan Documents or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to the
Agent or to the Lenders that are required to be paid by the Borrower pursuant to
the terms of the Senior Credit Agreement or this Agreement or any other Senior
Loan Document).
"Subordinated Debt Documents": the collective reference to the 14%
Debentures Purchase Agreement, the 14% Debentures and any other documents or
instruments that from time to time evidence the 14% Debentures or secure or
support payment or performance thereof.
"Subordinated Holders": the holders from time to time of the
Subordinated Obligations.
"Subordinated Obligations": the collective reference to the unpaid
principal of and interest on the 14% Debentures, all obligations of the Borrower
to redeem, repurchase or defease any 14% Debentures and all other obligations
and liabilities of the Borrower to the Subordinated Holders (including, without
limitation, interest accruing at the then applicable rate provided in the 14%
Debenture Purchase Agreement after the maturity of the 14% Debentures and
interest accruing at the then applicable rate provided in the 14% Debenture
Purchase Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the 14% Debenture Purchase
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Agreement, the 14% Debentures or any other Subordinated Debt Document, in each
case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Subordinated Holders that are required
to be paid by the Borrower pursuant to the terms of the 14% Debenture Purchase
Agreement or this Agreement or any other Subordinated Debt Document).
"Subordination Event": either of the following events:
(i) the occurrence of any Insolvency Event; or
(ii) the Senior Obligations becoming due and payable in full, whether
upon maturity, acceleration or otherwise.
"Whitehall" as defined in the caption to this Agreement.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section and paragraph
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Subordination. (a) Each of the Subordinated Holders agrees, for
itself and each future holder of the Subordinated Obligations, that the
Subordinated Obligations are expressly "subordinate and junior in right of
payment" (as that phrase is defined in paragraph 2(b)) to all Senior
Obligations.
(b) "Subordinate and junior in right of payment" means that:
(1) no part of the Subordinated Obligations shall have any claim to
the assets of the Borrower on a parity with or prior to the claim of the Senior
Obligations;
(2) unless and until the Senior Notes have been paid in full and the
Commitments have been terminated, without the express prior written consent of
the Agent,
(A) no Subordinated Holder will take, demand or receive from the
Borrower, and the Borrower will not make, give or permit, directly or
indirectly, by set-off, redemption, purchase or in any other manner, any
payment of or security for the whole or any part of the Subordinated
Obligations, and
(B) no Subordinated Holder will accelerate for any reason the
scheduled maturities of any amount owing under the 14% Debentures;
provided, however, that
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(i) at any time, except during a Blockage Period or when a Payment
Event of Default has occurred and is continuing, the Borrower may make,
and the Subordinated Holders may receive, scheduled payments on account of
interest (including deferred interest) on the 14% Debentures in accordance
with the terms thereof, and
(ii) upon the occurrence of a Subordination Event the Subordinated
Holders may accelerate the scheduled maturities of the 14% Debentures but
may not receive payments in respect thereof until the Senior Notes have
been paid in full and the Commitments have been terminated; and
provided, further, however, that, notwithstanding clause (i) of the immediately
preceding proviso, the Borrower may make, and the Subordinated Holders may
receive, during the continuance of any Blockage Period existing solely pursuant
to clause (b) of the definition of "Blockage Period", payments on account of
current and accrued interest on the 14% Debentures:
(x) on any 14% Debenture Interest Payment Date in an amount, and
only up to an amount, equal to the excess, if any, of the amount of
interest scheduled to be paid on the 14% Debentures on such 14%
Debenture Interest Payment Date (excluding any scheduled interest on
the 14% Debentures unpaid from prior 14% Debenture Interest Payment
Dates, but including interest accrued on such unpaid interest for the
period since the immediately preceding 14% Debenture Interest Payment
Date) over the aggregate amount of any Accelerated Amortization
Payments payable in respect of each of the two Test Periods most
recently ended prior to such 14% Debenture Interest Payment Date, and
(y) on any 14% Debenture Interest Payment Date in an amount, and
only up to an amount, equal to the 14% Debenture Quarterly Amount for
such 14% Debenture Interest Payment Date, so long as (1) no payment of
interest on the 14% Debentures pursuant to this clause (y) of this
proviso has been made during the one-year period preceding the date of
such payment and (2) after giving effect to such payment, the Borrower
shall have cash and Cash Equivalents standing to its account in an
aggregate amount not less than $10,000,000, and
(z) so long as no Default or Event of Default (as to which, if any
notice is required to be given by the Agent, such notice has been
given) shall have occurred and be continuing before or after giving
effect to such payment, in an amount not in excess of a cash
contribution to the common equity of the Borrower by the Investors made
contemporaneously with such payment.
(c) No Event of Default which existed on the date any Default Blockage
Notice was given shall be the basis for giving any subsequent Default Blockage
Notice, unless such Event of Default shall have been cured or waived or
otherwise ceased to exist for a period of not less than 90 consecutive days
after the date such Default Blockage Notice was given.
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(d) No more than one Default Blockage Notice may be given within any
consecutive 180-day period.
(e) The expressions "prior payment in full," "payment in full," "paid
in full" and any other similar terms or phrases when used herein with respect to
the Senior Obligations shall mean the payment in full, in cash and in
immediately available funds, of all of the Senior Obligations.
3. Additional Provisions concerning Subordination. (a) The Subordinated
Holders and the Borrower agree that upon the occurrence of any Subordination
Event:
(1) all Senior Obligations shall be paid in full before any
payment or distribution is made with respect to the Subordinated
Obligations; and
(2) any payment or distribution of assets of the Borrower, whether in
cash, property or securities, to which any Subordinated Holder would be
entitled except for the provisions hereof, shall be paid or delivered by
the Borrower, or any receiver, trustee in bankruptcy, liquidating trustee,
disbursing agent or other Person making such payment or distribution,
directly to the Agent, for the account of the Senior Lenders, to the extent
necessary to pay in full all Senior Obligations, before any payment or
distribution shall be made to any Subordinated Holder.
(b) Upon the occurrence of any event or proceeding described in clause
(1) or (2) of the definition of "Insolvency Event" commenced by or against the
Borrower:
(1) each Subordinated Holder irrevocably authorizes and empowers the
Agent (A) to demand, xxx for, collect and receive every payment or
distribution on account of the Subordinated Obligations payable or
deliverable in connection with such event or proceeding and give
acquittance therefor, and (B) to file claims and proofs of claim in any
statutory or non-statutory proceeding and take such other actions (but
excluding the right to vote any claim of any Subordinated Holder in any
such proceeding), in its own name as Agent, or in the name of the
Subordinated Holders or otherwise, as the Agent may deem necessary or
advisable for the enforcement of the provisions of this Agreement;
provided, however, that the foregoing authorization and empowerment imposes
no obligation on the Agent to take any such action, and provided, further,
however, that if the Agent shall take such action, the Agent shall use its
reasonable efforts to keep the Subordinated Holders reasonably informed in
connection with such action;
(2) each Subordinated Holder shall take such action, duly and
promptly, as the Agent may reasonably request from time to time (A) to
collect the Subordinated Obligations for the account of the Senior Lenders
and (B) to file appropriate proofs of claim in respect of the Subordinated
Obligations; and
(3) each Subordinated Holder shall execute and deliver such powers of
attorney, assignments or proofs of claim or other instruments as the Agent
may reasonably request to enable the Agent to enforce any and all claims in
respect of the Subordinated Obligations
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and to collect and receive any and all payments and distributions which may
be payable or deliverable at any time upon or in respect of the
Subordinated Obligations.
(c) If any payment or distribution, whether consisting of money,
property or securities, be collected or received by any Subordinated Holder in
respect of the Subordinated Obligations, except payments permitted to be made at
the time of payment as provided in paragraph 2(b), such Subordinated Holder
forthwith shall deliver the same to the Agent for the account of the Senior
Lenders, in the form received, duly endorsed to the Agent, if required, to be
applied to the payment or prepayment of the Senior Obligations until the Senior
Obligations are paid in full. Until so delivered, such payment or distribution
shall be held in trust by such Subordinated Holder as the property of the Senior
Lenders, segregated from other funds and property held by such Subordinated
Holder.
4. Subrogation. Subject to the prior payment in full of the Senior
Obligations, the Subordinated Holders shall be subrogated to the rights of the
Senior Lenders to receive payments or distributions of assets of the Borrower in
respect of the Senior Obligations. For the purposes of such subrogation,
payments or distributions to the Agent, for the account of the Senior Lenders,
of any money, property or securities to which any Subordinated Holder would be
entitled except for the provisions of this Agreement shall be deemed, as between
the Borrower and its creditors other than the Senior Lenders and such
Subordinated Holder, to be a payment by the Borrower to or on account of
Subordinated Obligations, it being understood that the provisions of this
Agreement are, and are intended solely, for the purpose of defining the relative
rights of the Subordinated Holders, on the one hand, and the Senior Lenders, on
the other hand.
5. Consent of Subordinated Holders.
(a) Each Subordinated Holder consents, notwithstanding any provision
to the contrary contained in the Subordinated Debt Documents, to the execution,
delivery and performance of the Senior Loan Documents and to the incurrence and
existence of the Senior Obligations.
(b) Each Subordinated Holder consents that, without the necessity of
any reservation of rights against any Subordinated Holder, and without notice to
or further assent by any Subordinated Holder:
(1) any demand for payment of any Senior Obligations made by the Agent
or any Senior Lender may be rescinded in whole or in part by the Agent or
any such Senior Lender, and any Senior Obligation may be continued, and the
Senior Obligations, or the liability of the Borrower or any co-obligor or
any other party upon or for any part thereof, or right of offset with
respect thereto, or any obligation or liability of the Borrower or any
other party under the Senior Credit Agreement or any other agreement, may,
from time to time, in whole or in part, be renewed, extended, modified,
accelerated, compromised, waived, surrendered, or released by the Agent or
any Senior Lender; and
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(2) the Senior Credit Agreement, the Senior Notes and any other Senior
Loan Document may be amended, modified, supplemented or terminated, in
whole or in part, as the Agent or any Senior Lender may deem advisable from
time to time, provided, that no such amendment, supplement or other
modification shall increase the aggregate principal amount of the
Commitments or Loans available and outstanding thereunder, or increase the
interest rate thereon,
in each case all without notice to or further assent by any Subordinated Holder,
which will remain bound under this Agreement, and all without impairing,
abridging, releasing or affecting the subordination provided for herein.
(c) Each Subordinated Holder waives any and all notice of the creation,
renewal, extension or accrual of any of the Senior Obligations and notice of or
proof of reliance by the Senior Lenders upon this Agreement. The Senior
Obligations, and any of them, shall be deemed conclusively to have been created,
contracted or incurred in reliance upon this Agreement, and all dealings between
the Borrower and the Senior Lenders shall be deemed to have been consummated in
reliance upon this Agreement. Each Subordinated Holder acknowledges and agrees
that the Senior Lenders have relied upon the subordination provided for herein
in entering into the Senior Credit Agreement and in making funds available to
the Borrower thereunder. Each Subordinated Holder waives notice of or proof of
reliance on this Agreement and protest, demand for payment and notice of
default.
6. Covenants of the Subordinated Holders and Whitehall. (a) So long as
any of the Senior Obligations shall remain outstanding, no Subordinated Holder
shall, without the prior written consent of the Agent:
(i) sell, assign, or otherwise transfer, in whole or in part, the
Subordinated Obligations or any interest therein to any other Person (a
"Transferee") or create, incur or suffer to exist any security interest,
lien, charge or other encumbrance whatsoever upon the Subordinated
Obligations in favor of any Transferee unless such transaction is made
expressly subject to this Agreement, and the Transferee expressly
acknowledges to the Agent, by a writing in form and substance reasonably
satisfactory to the Agent, the subordination provided for herein and agrees
to be bound by all of the terms hereof;
(ii) permit any of the Subordinated Debt Documents to be amended,
modified or otherwise supplemented; or
(iii) commence, or join with any creditors other than the Senior
Lenders in commencing any proceeding referred to in clause (1) or (2) of
the definition of "Insolvency Event."
(b) Whitehall covenants and agrees that, in the event of any sale,
assignment or transfer by any Subordinated Holder of any interest in the
Subordinated Obligations, Whitehall shall (i) give prompt written notice thereof
to the Agent and (ii) concurrently with such notice, deliver a certificate to
the Agent certifying that such sale, assignment and/or transfer would not result
in an Event of Default under Section 7(l) of the Senior Credit Agreement.
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7. Senior Obligations Unconditional. All rights and interests of the
Senior Lenders hereunder, and all agreements and obligations of the Subordinated
Holders and the Borrower hereunder, shall remain in full force and effect
irrespective of:
(a) any lack of validity or enforceability of any Senior Security
Documents or any other Senior Loan Documents by reason of the commencement or
pendency of any case, proceeding or action described in clause (1) or (2) of the
definition of 'Insolvency Event";
(b) subject to the proviso to Section 5(b)(2) hereof, any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Senior Obligations, or any amendment or waiver or other modification, whether by
course of conduct or otherwise, of the terms of the Senior Credit Agreement or
any other Senior Loan Document;
(c) any exchange, release or nonperfection of any security interest in
any collateral for any Senior Obligations, or any release, amendment, waiver or
other modification, whether in writing or by course of conduct or otherwise, of
all or any of the Senior Obligations or any guarantee thereof; or
(d) any other circumstances which otherwise might constitute a defense
available to, or a discharge of, the Borrower in respect of the Senior
Obligations, or of either any Subordinated Holder or the Borrower in respect of
this Agreement which is or is in the nature of a defense available to a surety.
8. Representations and Warranties. (a) The Holder represents and
warrants to the Agent and the Senior Lenders that:
(i) its 14% Debentures are owned by the Holder free and clear of any
Liens whatsoever arising from, through or under the Holder, other than the
interest of Whitehall, Xxxxxxx Xxxxx Capital Markets, L.P. and the interest
of the Senior Lenders under this Agreement.
(ii) The Holder has the corporate power and authority and the legal
right to execute and deliver and to perform its obligations under this
Agreement and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Agreement.
(iii) This Agreement constitutes a legal, valid and binding obligation
of the Holder enforceable against the Holder in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
(iv) The execution, delivery and performance of this Agreement will not
violate any provision of any Requirement of Law or Contractual Obligation
of the Holder and will not result in the creation or imposition of any Lien
on any of the properties or revenues of the
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Holder pursuant to any Requirement of Law affecting or any Contractual
Obligation of the Holder, except the interest of the Senior Lenders under
this Agreement.
(v) No consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority and no consent of any
other Person (including, without limitation, any stockholder or creditor of
the Holder), is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
(b) Whitehall hereby represents and warrants to the Agent and the
Senior Lenders as of the date hereof that no Event of Default under Section 7(l)
of the Senior Credit Agreement has occurred and is continuing.
9. No Representation by Agent. Neither the Agent nor any Senior Lender
has made, and none of them hereby or otherwise makes to the Subordinated
Holders, any representations or warranties, express, or implied, nor does the
Agent or any Senior Lender assume any liability to any Subordinated Holder with
respect to: (a) the financial or other condition of obligors under any
instruments of guarantee with respect to the Senior Obligations, (b) the
enforceability, validity, value or collectibility of the Senior Obligations or
the Subordinated Obligations, any collateral therefor, or any guarantee or
security which may have been granted in connection with any of the Senior
Obligations or the Subordinated Obligations or (c) the Borrower's title or right
to transfer any collateral or security.
10. Waiver of Claims. To the maximum extent permitted by law, each
Subordinated Holder waives any claim it might have against the Senior Lenders
with respect to, or arising out of, any action or failure to act or any error of
judgment, negligence, or mistake or oversight whatsoever on the part of the
Agent, the Senior Lenders or their respective directors, officers, employees or
agents with respect to any exercise of rights or remedies under the Senior Loan
Documents. Neither the Agent, any Senior Lender nor any of their respective
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon any of such collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any such
collateral upon the request of the Borrower or any Subordinated Holder or any
other Person or to take any other action whatsoever with regard to such
collateral or any part thereof.
11. Provisions Applicable After Bankruptcy; No Turnover.
(a) The provisions of this Agreement shall continue in full force and
effect notwithstanding the occurrence of any Insolvency Event.
(b) To the extent that any Subordinated Holder has or acquires any
rights under Section 363 or Section 364 of the Bankruptcy Code with respect to
any collateral for any Senior Obligations or Subordinated Obligations, such
Subordinated Holder hereby agrees not to assert such rights without the prior
written consent of the Agent, on behalf of the Senior Lenders; provided that, if
requested by the Agent, such Subordinated Holder shall seek to exercise such
rights in the manner requested by the Agent, including the rights in payments in
respect of such rights.
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12. Further Assurances. The Subordinated Holders and the Borrower, at
their own expense and at any time from time to time, upon the written request of
the Agent will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Agent reasonably may request
for the purposes of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted.
13. Provisions Define Relative Rights. This Agreement is intended
solely for the purpose of defining the relative rights of the Agent and the
Senior Lenders on the one hand and the Subordinated Holders on the other, and no
other Person shall have any right, benefit or other interest under this
Agreement.
14. Powers Coupled With An Interest. All powers, authorizations and
agencies contained in this Agreement are coupled with an interest and are
irrevocable until the Senior Obligations are paid in full and the Commitments
are terminated.
15. Authority of Agent. The Borrower and the Subordinated Holders
acknowledge that the rights and responsibilities of the Agent under this
Agreement with respect to any action taken by the Agent or the exercise or
non-exercise by the Agent of any option, request, judgment or other right or
remedy provided for herein or resulting or arising out of this Agreement shall,
as between the Agent and the Senior Lenders, be governed by the Senior Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Agent, on the one hand, and the
Borrower and the Subordinated Holders, on the other hand, the Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and neither the Borrower nor any
Subordinated Holder shall be under any obligation, or entitlement, to make any
inquiry respecting such authority.
16. Notices. All notices, requests and demands to or upon the Agent or
the Borrower or any Subordinated Holder to be effective shall be in writing
(including by facsimile transmission) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (1) in the case of
delivery by hand, when delivered or (2) in the case of delivery by mail, three
days after being deposited in the mails, postage prepaid, (3) in the case of
delivery by overnight courier, one Business Day after being delivered to a
nationally recognized overnight courier service, with shipping charges paid for
delivery on the next Business Day, or (4) in the case of delivery by facsimile
transmission, when sent and receipt has been electronically confirmed, addressed
as follows:
If to the Agent: NationsBank of Texas, N.A.
000 Xxxx Xxxxxx, XXX-000-00-00
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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with copies to:
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
and
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to the Borrower: RCPI Trust
c/o Tishman Speyer Properties L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with copies to:
Whitehall Street Real Estate Limited Partnership V
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000;
and
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Israel, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
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If to Whitehall: WHRC Real Estate Limited Partnership
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000;
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Israel, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to any Subordinated Holder, at its address or transmission number for notices
set forth under its signature below.
The Agent, the Borrower and any Subordinated Holder may change their addresses
and transmission numbers for notices by notice in the manner provided in this
Section.
18. Counterparts. This Agreement may be executed by one or more of the
parties on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the counterparts of this Agreement signed by all the parties shall be lodged
with the Agent.
19. 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.
20. Integration. This Agreement represents the agreement of the Agent
and the Senior Lenders and the Subordinated Holders with respect to the subject
matter hereof and there are no promises or representations by the Agent or any
Senior Lender or any Subordinated Holder relative to the subject matter hereof
not reflected herein.
21. Amendments in Writing; No Waiver: Cumulative Remedies. (a) None of
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Agent, the
Borrower and each Subordinated Holder; provided that any provision of this
Agreement may be waived by the Agent and the Senior Lenders in a letter or
agreement executed by the Agent or by telex or facsimile transmission from the
Agent.
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(b) No failure to exercise, nor any delay in exercising, on the part
of the Agent or any Senior Lender, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
22. Section Headings. The section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
23. Successors and Assigns. (a) This Agreement shall be binding upon
the successors and assigns of the Borrower and the Subordinated Holders and
shall inure to the benefit of the Agent and the Senior Lenders and their
successors and assigns.
(b) Upon a successor Agent becoming the Agent under the Senior Credit
Agreement, such successor Agent automatically shall become the Agent hereunder
with all the rights and powers of the Agent hereunder without the need for any
further action on the part of any party hereto.
24. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
NATIONSBANK OF TEXAS, N.A., as Agent
By______________________________
Title____________________________
RCPI TRUST
By___________________________
Title_________________________
HOLDER OF 14% DEBENTURES
By: WHRC Real Estate Limited Partnership, its
attorney-in-fact
By: WHRC Gen-Par, Inc., its General Partner
By______________________________
Title____________________________
Address:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
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Solely as to Sections 6(b) and 8(b):
WHRC REAL ESTATE LIMITED PARTNERSHIP
By: WHRC Gen-Par, Inc., its General Partner
By______________________________
Title____________________________
Address:
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
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