AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated as of February 12, 1996, among ROCKEFELLER CENTER
PROPERTIES, INC., a Delaware corporation ("RCPI"), WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V, a Delaware limited partnership ("Whitehall"), ROCKPROP,
L.L.C., a Delaware limited liability company ("Rockprop"), XXXXX XXXXXXXXXXX
("Xxxxxxxxxxx"), EXOR GROUP S.A., a Luxembourg investment holding company
("Exor"), TROUTLET INVESTMENTS CORPORATION, a British Virgin Islands private
company ("Troutlet," and together with Whitehall, Rockprop, Rockefeller and
Exor, the "Investors"), RCPI HOLDINGS INC., a Delaware corporation ("Parent"),
RCPI MERGER INC., a Delaware corporation and a wholly owned subsidiary of Parent
("Sub"), to the Agreement and Plan of Merger, dated as of November 7, 1995 (the
"Merger Agreement"), among RCPI, Parent, Sub and the Investors.
WHEREAS, the parties hereto desire to amend the Merger Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. DEFINED TERMS; SECTION REFERENCES.
Capitalized terms used herein but not otherwise defined herein shall have
the respective meanings ascribed thereto in the Merger Agreement. Unless
otherwise indicated, all section references herein are to Sections of the Merger
Agreement.
2. MERGER OF SUB INTO PARENT.
Prior to the Effective Time, in accordance with the DGCL, Sub shall be
merged with and into Parent, the separate corporate existence of Sub shall cease
and Parent shall be the surviving corporation in the merger. In accordance with
the DGCL, all of the rights, privileges, powers, immunities, purposes and
franchises (collectively, "Rights") of Parent and Sub (including, without
limitation, the Rights of each of Parent and Sub under the Merger Agreement)
shall vest in Parent, and all of the debts, liabilities, obligations and duties
(collectively, "Obligations") of Parent and Sub (including, without limitation,
the Obligations of each of Parent and Sub under the Merger Agreement) shall
become the Obligations of Parent.
3. CERTAIN BANKRUPTCY-RELATED MATTERS.
(a) The final sentence of Section 4.2(h)(i) shall be revised (i) by
inserting after the phrase "but in any event so as to allow the Joint Plan for
Borrower" the phrase "or any Alternative Chapter 11 Plan (as defined below)" and
(ii) by deleting the words "February 29, 1996" and replacing such words with the
words "March 31, 1996."
(b) The second sentence of Section 5.2(e) shall be amended and restated as
follows:
The maximum amount to be provided (or assumed) by RCPI under the Joint
Plan for Borrower or under any Alternative Chapter 11 Plan to be used to
fund liabilities of the Borrower or its estate shall not exceed (x) $20
million (exclusive of the debtor-in-possession financing permitted under
Section 4.2(b)(Q)) of liabilities related to administrative expenses, claims
entitled to priority under the Bankruptcy Code, cure payments relating to
leases and other executory contracts to be assumed (including tenant
improvements) reasonably acceptable to Parent, and certain general unsecured
claims reasonably acceptable to Parent, and (y) all unpaid Allowed Ordinary
Course
1
Administrative Operating Expense Claims (as defined in the Joint Plan for
Borrower or an Alternative Chapter 11 Plan), subject to the right to object
to such claims as provided for under the Joint Plan for Borrower or an
Alternative Chapter 11 Plan.
(c) In addition to the conditions to the obligations of Parent and each of
the Investors set forth in Section 5.2, the obligations of Parent and each of
the Investors under the Merger Agreement to consummate the transactions
contemplated thereby are subject to the satisfaction of the condition that all
conditions to the occurrence of the effective date of the Joint Plan for
Borrower or an Alternative Chapter 11 Plan shall have been satisfied or waived.
4. GSMC LOANS.
(a) Section 4.4(b) shall be amended by adding the following language
immediately after the words "plus (B) $12 million to pay Permitted Expenses if
the Closing Date shall not have occurred on or before December 31, 1995,":
"plus (C) $2.5 million to pay Permitted Expenses if the Closing Date
shall not have occurred on or before Xxxxx 00, 0000,".
(x) Section 4.4(b) shall be further amended by replacing the word "and"
immediately prior to clause (2) with a "," and adding the following language at
the end of the first sentence:
"and (3) of the amount described in clause (C), an amount sufficient to
pay all interest that will become due from RCPI to Whitehall and GSMC on or
before April 30, 1996 shall be available only to pay such interest".
(c) Section 4.4(b) shall be further amended by replacing the words "March
31, 1996" in the proviso in the second sentence thereof with the words "April
30, 1996".
5. SATISFACTION OF CERTAIN CONDITIONS.
The parties acknowledge and agree that the conditions to the obligations of
Parent and each Investor to consummate the transactions contemplated by the
Merger Agreement set forth in Sections 5.2(j) and (k) have been satisfied.
6. ADDITIONAL MATTER.
As of the date hereof, none of the Investors has actual knowledge of the
occurrence of a material adverse change in the financial condition of RCPI or
the financial or physical condition of the Property since December 31, 1994
within the meaning of Section 5.2(c).
7. TERMINATION DATE.
Section 6.1(d) shall be amended by deleting the words "March 31, 1996" from
the first clause thereof, and replacing such words with the words "April 30,
1996."
8. SCHEDULE A
Schedule A to the Merger Agreement shall be amended to include the cash flow
projections for RCPI set forth on Schedule 1 hereto.
9. MISCELLANEOUS.
(a) This Amendment No. 1 shall be governed by and construed in accordance
with the laws of the State of New York (other than its rules of conflicts of law
to the extent that the application of the laws of another jurisdiction would be
required thereby); provided, however, that with respect to matters of corporate
law, the DGCL shall govern.
(b) Except as amended hereby, the Merger Agreement shall in all respects
continue in full force and effect.
2
(c) This Amendment No. 1 may be executed in one or more counterparts, each
of which shall be an original and all of which, when taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has signed or caused this Agreement
to be signed as of the date first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By: /s/ XXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Executive Officer
RCPI HOLDINGS INC.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
RCPI MERGER INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: W.H. Advisors L.P. V,
General Partner
By: WH Advisors, Inc. V,
General Partner
By: /s/ XXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
3
ROCKPROP, L.L.C.
By: Tishman Speyer Crown Equities
its Managing Member
By: Tishman Speyer Associates
Limited Partnership,
General Partner
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
By: TSE Limited Partnership,
General
Partner
By: /s/ XXXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
/s/ XXXXX XXXXXXXXXXX*
--------------------------------------
Xxxxx Xxxxxxxxxxx
* By: /s/ XXXXX X. XXXXXX
---------------------------------
Xxxxx X. Xxxxxx
Attorney-in-Fact
EXOR GROUP S.A.
By: /s/ XXXXXX XXXXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Attorney-in-Fact
TROUTLET INVESTMENTS CORPORATION
By: /s/ SQUIRE X. XXXXXXX
-----------------------------------
Name: Squire X. Xxxxxxx
Title: Attorney-in-Fact
4
For Purposes of Section 4 hereof only:
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., General Partner
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:President
5
