EXHIBIT A
INTERCREDITOR AGREEMENT
This Intercreditor Agreement is made as of _______________, 1995 (this
"Agreement"), between [NAME OF LENDER], a ____________________ ("Lender"), and
[the Holders of the 14% Debentures (the "Debenture Holders").
WITNESSETH:
WHEREAS, Rockefeller Center Properties, Inc., a Delaware corporation
(the "Company"), and the Lender, as agent and lender, have entered into a Loan
Agreement dated as of the date hereof (as amended or replaced pursuant to its
terms (including without limitation Section _____ thereof), the "Loan
Agreement"), pursuant to which the Lender and the other lenders thereunder
(together with their respective successors and assigns, the "Note Holders") have
agreed to make loans to the Company in the aggregate principal amount of
$___________, such loans to be evidenced by one or more notes (as amended or
replaced pursuant to the terms of the Loan Agreement, the "Notes") bearing
interest at the rate provided for in the Loan Agreement, including during
continuance of an Event of Default thereunder a rate __% per annum in excess of
the rate otherwise applicable (interest during an Event of Default to the extent
it exceeds the rate otherwise applicable being hereinafter referred to as
"Default Interest"); and
WHEREAS, the Company and Debenture Holders have entered into a
Debenture Purchase Agreement dated as of December 18, 1994 (as amended or
replaced pursuant to its terms (including without limitation Section _____
thereof), the "Debenture Purchase Agreement"), pursuant to which Debenture
Holders (together with its successors and assigns, the "Debenture Holders") has
purchased $75,000,000 aggregate principal amount of the Company's 14% Debentures
(as amended or replaced pursuant to the terms of the Debenture Purchase
Agreement, the "Debentures"); and
WHEREAS, for value received and in connection with the transactions
contemplated by the Loan Agreement and the Debenture Purchase Agreement, the
parties hereto desire to enter into this Agreement to determine the priority, as
between the Note Holders and the Debenture Holders, of the Notes and the
Debentures;
NOW, THEREFORE, the Lender and Debenture Holders hereby agree as
follows:
1. DEFINITIONS. All capitalized terms used but not defined herein
shall have the meanings assigned to them in the Debenture Purchase Agreement
and, if not defined therein, the Loan Agreement. All references herein to
"interest" on the Notes (other than Default Interest) shall include interest
(other than Default Interest) accruing (a) at the rate otherwise applicable to
the Notes subsequent to the occurrence of an Event of Default (including without
limitation an Event of Default under Section ____ of the Loan Agreement),
whether or not the claim for such interest is allowed or allowable under the
Bankruptcy Code (as defined in Section ______ of the Loan Agreement) or any
similar law and (b) at the rate otherwise applicable to the Notes on overdue
principal or interest (other than Default Interest). "Allowable Amounts" means
amounts owing to the Agent and the Note Holders under Section ______ of the Loan
Agreement, but only in the event that such amounts represent reimbursement or
indemnification for costs, expenses, taxes, losses, liabilities, claims or
damages incurred in respect of acts or omissions by the Agent or any Note Holder
that are beneficial to the Debenture Holders. Solely for the purpose of this
Agreement and notwithstanding any provision of the Loan Agreement, the Debenture
Purchase Agreement or the Collateral Trust Agreement to the contrary, (x)
payments received by the Note Holders shall be deemed applied (unless otherwise
designated by order of a court in the bankruptcy of the Company) first to
Allowable Amounts, then to interest (other than Default Interest) on the Notes
and then to principal of and premium, if any, on the Notes and (y) payments
received by the Debenture Holders shall be deemed applied (unless otherwise
designated by order of a court in the bankruptcy of the Company) first to
Allowable Expenses, then to interest on the Debentures and then to principal of
and premium, if any, on the Debentures. "Allowable Expenses" means amounts
owing to Debenture Holders and the Debenture Holders under Section 9.04 of the
Debenture Purchase Agreement, but only in the event that such amounts represent
reimbursement or indemnification for costs, expenses, taxes, losses,
liabilities, claims or damages incurred in respect of acts or omissions by
Debenture Holders or any Debenture Holder that are beneficial to the Agent or
the Note Holders.
2. SUBORDINATION. Notwithstanding any provision to the contrary in
any of the Loan Documents, Debenture Holders and each Debenture Holder agree by
accepting or having accepted a Debenture that all principal of, premium, if any,
and interest on the Debentures shall be subordinate
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and junior in right of payment to all principal of, premium, if any, and
interest (other than Default Interest) on the Notes and all Allowable Amounts,
to the extent set forth below.
a. PRIORITY IN CERTAIN PROCEEDINGS. In the event of (i) any
insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its assets, or (ii) any
liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors or any
other marshalling of assets and liabilities of the Company, or any similar
event or proceeding relating to the Company or its assets, then and in any
such event the Note Holders shall be entitled to receive payment in full of
all principal of, premium, if any, and interest (other than Default
Interest) on the Notes and all Allowable Amounts before any amounts shall
be paid to Debenture Holders on account of the Debentures, and to that end,
each Note Holder shall be entitled to receive, for application to the
payment of the Notes held by it (other than payment of Default Interest),
any payment or distribution of any kind or character, whether in cash,
property or securities which may be payable or deliverable in respect of
the Debentures in any such case, proceeding, dissolution, liquidation or
other winding up or event, pro-rata on the basis of the principal amount of
the Notes then outstanding.
b. EVENTS OF DEFAULT UNDER THE SENIOR LOAN AGREEMENT. In the
event and during the continuation of any Event of Default under the Loan
Agreement, no direct or indirect payments shall be made to the Debenture
Holders on account of the Debentures and all payments owing by the Company
on account of any of the Debentures shall be paid instead to the Note
Holders until all amounts then due (including by reason of acceleration) in
respect of principal of, premium, if any, and interest (other than Default
Interest) on the Notes and all Allowable Amounts shall have been paid in
full.
3. PAYMENT TO THE NOTE HOLDERS OF CERTAIN AMOUNTS RECEIVED BY THE
DEBENTURE HOLDERS. In the event that, notwithstanding the foregoing, any
distribution of assets by the Company or payment by or on behalf of the Company
of any kind or character, whether in cash,
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securities or other property, to which the Debenture Holders would be entitled
but for the provisions of this Agreement, shall be received by the Debenture
Holders before all amounts due in respect of principal of, premium, if any, and
interest (other than Default Interest) on the Notes and all Allowable Amounts
shall have been paid in full, such distribution or payment shall be held in
trust for the benefit of, and shall, immediately upon receipt thereof, be paid
over or delivered to each Note Holder for application to the payment of Notes
(other than payment of Default Interest) pro-rata on the basis of the principal
amount of the Notes then outstanding.
4. AUTHORIZATIONS TO THE NOTE HOLDERS. The Debenture Holders
(x) irrevocably authorize and empower (without imposing any obligation on) the
Note Holders to demand, xxx for, collect, receive and receipt for all payments
and distributions in respect to the Debentures which are required to be paid or
delivered to the Note Holders as provided in this Agreement, and to file and
prove all claims therefor and take all such other action, in the name of the
Debenture Holders or otherwise, as the Note Holders may determine to be
necessary or appropriate for the enforcement of this Agreement; and (y) agree to
execute and deliver to the Note Holders all such further instruments confirming
the above authorization, and all such powers of attorney, proofs of claim,
assignments of claim and other instruments, and to take all such other action,
as may be requested by the Note Holders in order to enable the Note Holders to
enforce all claims upon or in respect of the Debentures.
5. NO WAIVER. No right of the Note Holders to enforce the
provisions contained herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any Note Holder or by any noncompliance by
the Company with the terms, provisions and covenants of this Agreement, the Loan
Agreement, the Notes, the Debenture Purchase Agreement or the Debentures,
regardless of any knowledge thereof which any Note Holder may have or be
otherwise charged with.
6. SUBROGATION. Subject to the payment in full of all amounts due
in respect of all Notes (other than Default Interest), the Debenture Holders
shall be subrogated to the rights of the Note Holders to receive distribution of
assets of the Company, or payments by or on behalf of the Company, made on the
Notes, until the obligations under the Debentures shall be fully satisfied.
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7. BENEFIT OF THIS AGREEMENT. This Agreement is intended solely to
define the relative rights of the Note Holders and the Debenture Holders and the
Company and their respective successors and assigns. Nothing contained in this
Agreement is intended to or shall impair, as between the Company and the
Debenture Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Debenture Holders all amounts due or to become due
on or in respect of the Debentures as and when the same shall become due and
payable in accordance with the terms thereof, or is intended to or shall affect
the relative rights of the Debenture Holders and creditors of the Company other
than the Note Holders.
8. FURTHER ASSURANCES. The Debenture Holders, at their own cost,
will take all such further actions, including entering into additional
agreements, giving notices to offerees of the Debentures in any public or
private offering and taking such further action as the Note Holders may
reasonably request in order more fully to carry out the intent and purpose of
this Agreement.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. AMENDMENT, TERMINATION AND ASSIGNMENT. This Agreement may not be
amended, modified or terminated without the prior written consent of each Note
Holder or such lesser percent as may be provided in the Loan Agreement. The
Note Holders may assign, sell, transfer or offer in any public or private
offering any of the Notes from time to time, and any such assignee, purchaser,
transferee or holder of a Note shall be entitled to all of the rights of the
Note Holders hereunder with respect to the Notes so assigned, sold or otherwise
transferred.
11. AGENT OR TRUSTEE. Any payment to Note Holders provided for
herein may be made to any duly authorized agent or trustee on their behalf, and
any actions provided for herein to be taken by any Note Holders may be taken by
any duly authorized agent or trustee acting on their behalf.
12. NO PARTNERSHIP. Nothing contained in this Agreement, and no
action taken by any party pursuant hereto, is intended to constitute or shall be
deemed to constitute two or more parties hereto a partnership, association,
joint venture or other common entity.
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13. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, and all of which
taken together shall constitute a single agreement. This Agreement shall become
effective only upon the execution and delivery of the Loan Agreement and the
closing of the transactions contemplated thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
[NAME OF LENDER]
By:
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Name:
Title:
Name of Debenture Holder
The Company hereby acknowledges
and accepts notice of the foregoing
Intercreditor Agreement and agrees to
recognize the rights of the Note Holders
provided therein and to make payments
as provided therein.
Rockefeller Center Properties, Inc.
By:
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Name:
Title:
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