Exhibit 22
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 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 respectus continue in full force and effect.
(b) 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
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
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
Schedule 1
Projected REIT Cash Flow for April 1996(*)
------------------------------------------
Cash Sources April 1996
------------ ----------
Beginning Cash Balance $0.2
Estimated Interest Income -
GSMC Loan 2.5
____
$2.7
Cash Requirements
-----------------
Interest Expense
Current Coupon Convertible
Debentures -
Zero Coupon Convertible
Debentures -
Floating Rate Notes -
14% Debentures -
Working Capital -
Total Interest Expense -
Total G&A Expenses $1.7
Swap Expenses 0.9
Repayment of Unsecured Debt -
____
Total Cash Requirements $2.6
Ending Cash Balance(**) $0.1
_____________
(*) All numbers have been rounded to the nearest $100,000.
(**) Assumes waiver of the net cash flow sweep and interest reserve
requirements upon signing of the Merger Agreement.
