The Lenders and certain of their affiliates are holders of the Issuer’s outstanding 6.00% / 9.00% Convertible Senior PIK Toggle Notes due 2027 (the “Existing Notes”). Pursuant to a side letter agreement between RXR FP Investor LP and RXR FP Investor II LP, each an affiliate of RXR Realty LLC, and the Issuer, dated as of October 26, 2022 (the “Side Letter”), each of RXR FP Investor LP and RXR FP Investor II LP may not convert their Existing Notes into shares of Common Stock to the extent that the delivery of any shares of Common Stock or any other security otherwise deliverable upon such conversion would result in them, together with their affiliates or persons whose beneficial ownership would be aggregated with RXR FP Investor LP or RXR FP Investor II LP, in the aggregate, having “beneficial ownership,” as determined in accordance with Section 13(d) of the Act, including the definition of any “group” of which either RXR FP Investor LP or RXR FP Investor II LP is a member, of shares of Common Stock in excess of 4.99% (the “Beneficial Ownership Limitation”). Accordingly, because the Reporting Persons may be deemed to be members of a “group” that includes RXR FP Investor LP, the Reporting Persons may be deemed subject to the Beneficial Ownership Limitation. The foregoing description of the Side Letter does not purport to be complete and is qualified in its entirety by reference to the execution version of the Side Letter, a copy of which is attached as Exhibit 10.4 to the Issuer’s Form 8-K filed with the SEC on October 27, 2022 and is incorporated by reference herein.
As a material inducement for each Lender to enter into the Credit Agreement, CF Principal Investments LLC, the Other Lenders and certain affiliates of RXR Realty LLC (such affiliates together with the Other Lenders, the “RXR Consortium Members” and, together with CF Principal Investments LLC, the “Investors”) entered into a participation and intercreditor agreement (the “Intercreditor Agreement”) dated as of October 16, 2023, with Cantor Fitzgerald Securities serving as administrative agent and collateral agent. Pursuant to the Intercreditor Agreement: (i) the RXR Consortium Members agreed, among other things, (A) to transfer an undivided 50% participation interest in the Existing Notes held by the RXR Consortium Members (the “RXR Consortium Notes”), other than the Existing Notes included in the SPV II Interest (as defined below), to CF Principal Investments LLC and (B) use commercially reasonable efforts to transfer to CF Principal Investments LLC an undivided 50% participation interest in (x) RXR FP GP LLC’s interest in the equity of (including promote), and any management fees in, RXR FP Investor II LP (“RXR FP Investor II”) and (y) the portion of the RXR Consortium Notes held by RXR FP Investor II solely attributable to RXR FP Investor LLC (the “SPV II Interest”); and (ii) CF Principal Investments LLC agreed, among other things, to transfer an undivided 50% participation interests in the Existing Notes held by CF Principal Investments LLC to the RXR Consortium Members. Each of RXR FP GP LLC and CF Principal Investments, acting jointly, serve as Lender Representatives for the Investors under the Intercreditor Agreement (the “Lender Representatives”). Each Investor agreed to exercise any rights or powers available to it to (i) reject and oppose, and if applicable, vote against, any amendment, waiver, consent, supplement or other modification (or any transaction requiring any of the foregoing) that is rejected by the Lender Representatives and (ii) support and, if applicable, vote in favor of, any amendment, waiver, consent, supplement or other modification (or any transaction requiring any of the foregoing) that has been approved by the Lender Representatives, in each case, in respect the Existing Notes indenture or the Credit Agreement or otherwise. In addition, pursuant to the Intercreditor Agreement, any additional Existing Notes acquired by any Investor after the effective date of the Intercreditor Agreement shall be treated consistent with the terms of the Intercreditor Agreement, and each of the Investors agreed to not transfer or convert any of their Existing Notes or, subject to certain limited exceptions, their Commitments or Loans (as each such term is defined in the Credit Agreement) without the consent of the Lender Representatives. Each Investor further agreed that it will not, without each of the Lender Representatives’ prior written consent: (i) commence or continue any bankruptcy, liquidation or similar proceeding (“Proceeding”) against the Issuer or its subsidiaries, (ii)(x) solicit, support, propose or vote in favor of any arrangement, plan in any Proceeding, sale, or proposal or (y) file or support any motion, pleading or material in support of any motion, arrangement, plan in any Proceeding, sale, or proposal that, in the case of (x) and (y), challenges the priority of the Collateral (as such term is defined in the Credit Agreement), is inconsistent with the terms of the Intercreditor Agreement, is opposed by the Lender Representatives, or is adverse to the interests of the Lender Representatives, (iii) materially impair the rights of the Lender Representatives, or (iv) oppose any sale or plan in any Proceeding that is supported by the Lender Representatives.
