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EXECUTION COPY
AMENDMENT
AMENDMENT, dated as of April 12, 1999 (this "Amendment"), among RCPI
TRUST, a Delaware business trust (the "Borrower"), the lenders parties hereto
and NATIONSBANK, N.A., a national banking association (successor by merger to
NationsBank of Texas, N.A.), as agent (in such capacity, the "Agent") for the
Lenders, to the Existing Credit Agreement (as defined below). Capitalized terms
used but not otherwise defined herein shall have the meanings given to them in
the Existing Credit Agreement.
RECITALS
The Borrower, the lenders from time to time parties hereto (the
"Lenders") and the Agent are parties to that certain Credit Agreement, dated as
of May 16, 1997 (as previously amended and as otherwise amended, supplemented or
otherwise modified, the "Existing Credit Agreement").
The Borrower has requested that the Lenders amend the Existing Credit
Agreement to, among other things, allow the Borrower to enter into an additional
credit agreement, dated as of the date hereof, among the Borrower, the lenders
from time to time parties thereto and NationsBank, N.A., as agent (as amended,
supplemented or otherwise modified, the "Additional Credit Agreement"). Subject
to the terms and conditions of this Amendment, the Lenders and the Agent have
agreed to so amend the Existing Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Lenders and the Agent hereby agree as follows:
1. Amendment. The Existing Credit Agreement is hereby amended as
follows:
(a) Section 1.1 is hereby amended by adding the following
definitions:
"'Additional Credit Agreement': that certain Credit Agreement, dated
April 12, 1999, among the Borrower, the lenders from time to time
parties thereto, and NationsBank, N.A., as agent for the lenders, as
amended, supplemented or otherwise modified from time to time."
"'Additional Loan Documents': the "Loan Documents", as defined under
the Additional Credit Agreement.
"'Additional Loans': the loans made under the Additional Credit
Agreement."
(b) Section 1.1 is hereby amended by deleting from the definition of
"Investors" the phrase "Derrycroft Enterprises, Inc., a Delaware
corporation; FIMA
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Finance Management Inc., a British Virgin Islands corporation;" and
substituting in lieu thereof the phrase "EXOR Group, a Luxembourg investment
holding company; EXOR America Inc., a Delaware corporation;".
(c) Section 3.8(d) is hereby amended by inserting the words "Loan
Documents, the Additional" after the word "Leases,".
(d) Section 5.2(g) is hereby amended by deleting the reference to
"this Section 5.3(g)" and substituting in lieu thereof the words "this
Section 5.2(g)".
(e) Section 5.6(b) is hereby amended by deleting such clause (b) and
substituting in lieu thereof a new clause (b) to read in its entirety as
follows:
"(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
the prepayment of the Loans and, to the extent that the Loans have
been paid in full, the Additional 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 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 the
prepayment of the Loans and, to the extent the Loans have been paid
in full, the Additional 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
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be diligently continuing such restoration, replacement or
rebuilding, in the case of each of (x) and (y), subject to force
majeure."
(f) Section 5.6(d) is hereby amended by deleting such clause (d) and
substituting in lieu thereof a new clause (d) to read in its entirety as
follows:
"(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 the prepayment of the Loans
and, to the extent the Loans have been paid in full, the Additional
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 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 the prepayment of the Loans and, to the
extent the Loans have been paid in full, the Additional 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."
(g) Section 6 is hereby amended by deleting the words "directly or
indirectly" and substituting in lieu thereof the words "nor shall it permit
any of its subsidiaries to".
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(h) Section 6.1(f) is hereby amended by deleting such clause (f) and
substituting in lieu thereof a new clause (f) to read in its entirety as
follows:
"(f) the Hedging Obligations under this Agreement required
pursuant to Section 4.1(r) hereof and under the Additional Credit
Agreement".
(i) Section 6.1(g) is hereby amended by deleting the word "and"
following the semicolon at the end of the clause.
(j) Section 6.1(h) is hereby amended by deleting the period at the
end of the clause and substituting in lieu thereof "; and".
(k) Section 6.1 is hereby amended by adding a new clause (i) to read
in its entirety as follows:
"(i) Indebtedness of the Borrower under the Additional Credit
Agreement."
(l) Section 6.2(f) is hereby amended by deleting the word "and"
following the semicolon at the end of the clause.
(m) Section 6.2 (g) is hereby amended by deleting the period at the
end of the clause and substituting in lieu thereof "; and".
(n) Section 6.2 is hereby amended by adding a new clause (h) to read
in its entirety as follows:
"(h) Liens arising from tenant improvements; provided that such
Liens are either bonded or released within thirty (30) days and the
aggregate amount secured by such Liens does not exceed $500,000 at
any one time."
(o) Section 6.5 is hereby amended by deleting subclause (ii) of
clause (a) of such Section and substituting in lieu thereof a new subclause
(ii) of clause (a) to read in its entirety as follows:
"(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 Additional Loans and/or prepays,
redeems or repurchases Zeros, in an aggregate amount so that,
immediately after giving effect to such Release, the prepayment of
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the Loans required in connection therewith pursuant to Section
2.11(a) and such prepayment, redemption or repurchase of Loans, the
Additional Loans and/or 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) hereof 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;"
(p) Section 6.6(c) is hereby amended by deleting clause (i) of such
Section and substituting in lieu thereof a new clause (i) to read in its
entirety as follows:
"(i) the Borrower shall have made all prepayments required to be
made pursuant to Section 2.11 hereof and Section 2.11 of the
Additional Credit Agreement in respect of such Release, and"
(q) Section 6.9 is hereby amended by adding the phrase ", may repay
Indebtedness under the Additional Credit Agreement" after the word "Zeros"
in the 'except' clause to subsection (a) thereof.
(r) Section 6.9(b) is hereby amended by inserting the words "(except
for the Amendment to the 14% Debenture Purchase Agreement to be dated April
12, 1999)" after the words "14% Debentures".
(s) Section 6.12 is hereby amended by deleting the word "and"
following the comma in clause (c) and adding a new clause (e) following the
parenthetical phrase to read in its entirety as follows:
"and (e) the Additional Credit Agreement,"
(t) Section 7(f) is hereby amended by deleting clause (i) of such
Section and substituting in lieu thereof a new clause (i) to read in its
entirety as follows:
"(i) Any "Event of Default" as defined in the 14% Debentures
Purchase Agreement, any "Event of Default" as defined in the Zeros
Indenture, or any "Event of Default" as defined in the Additional
Credit Agreement shall occur, or"
(u) Section 7.1(k) is hereby amended by inserting the words "or the
Key Principals" after the words "any Key Principals" in clause (iii) thereof
and by inserting the words "(or such transferee as contemplated by (iii)
above)" after the word "Investors" in clause (v) thereof.
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(v) Section 9.2 is hereby amended by deleting the address of
Cadwalader, Xxxxxxxxxx & Xxxx from such Section and substituting in lieu
thereof the following address:
"227 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxxxxx X. XxXxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000"
2. Waiver. The Lenders parties hereto hereby waive any Default or Event
of Default occurring as a result of the transfer by FIMA Finance Management Inc.
of its interest in Holdings to EXOR Group whether pursuant to Section 7(k)(iii)
of the Existing Credit Agreement or otherwise.
3. Approval. The Agent hereby approves of the Major Space Lease entered
into between Borrower and Lazard Freres & Co., LLC, dated December 14, 1998 (the
"Lazard Lease"), a copy of which has been previously furnished to the Agent. The
Lenders parties hereto hereby waive any Default or Event of Default now or
hereinafter occurring as a result of the entering into the Lazard Lease.
4. Effectiveness. This Amendment shall become effective upon (a)
execution and delivery by the Borrower and the Required Lenders and (b) the
execution and delivery of the Additional Credit Agreement by the parties
thereto.
5. No Other Amendments. Except as expressly amended and waived hereby,
the Credit Agreement, the Notes and the other Loan Documents shall remain in
full force and effect in accordance with their respective terms, without any
waiver, amendment or modification of any provision thereof.
6. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Expenses. The Borrower agrees to pay and reimburse the Agent for all
of the out-of-pocket costs and expenses incurred by the Agent in connection with
the preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of Cadwalader, Xxxxxxxxxx &
Xxxx, counsel to the Agent.
8. Applicable Law. this amendment shall be governed by, and construed
and interpreted in accordance with, the law of the state of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
RCPI TRUST, as Borrower
By: _______________________________
Name:
Title:
NATIONSBANK, N.A., as Agent
By: _______________________________
Name:
Title:
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The undersigned Lenders hereby consent and agree to the foregoing
Amendment:
ORIX USA CORPORATION
By: _______________________________
Name:
Title:
BANKBOSTON, N.A.
By: _______________________________
Name:
Title:
MASS MUTUAL
By: _______________________________
Name:
Title:
