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EXHIBIT 10.37
EXECUTION COPY
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AMENDED AND RESTATED
LOAN AGREEMENT
dated as of February 9, 1999
among
SUMITOMO BANK LEASING AND FINANCE, INC.
as Lessor,
VARIOUS FINANCIAL INSTITUTIONS
IDENTIFIED HEREIN,
as Lenders,
THE BANK OF NOVA SCOTIA,
as Documentation Agent
and
THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH
as Agent for the Lenders
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT dated as of February 9,1999
(this "Loan Agreement"), among SUMITOMO BANK LEASING AND FINANCE, INC., a
Delaware Corporation (the "Lessor"), the various financial institutions as are
or may from time to time become parties hereto as lenders hereunder
(collectively, the "Lenders"), THE BANK OF NOVA SCOTIA, as Documentation Agent,
and THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH, as Agent (the "Agent") for
the Lenders,
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Participation Agreement
dated as of the date hereof (the "Participation Agreement"), among Symantec
Corporation, a Delaware Corporation (the "Lessee"), the Lessor, the Lenders, the
Documentation Agent and the Agent, the Lessor and the Lenders have agreed,
subject to the terms thereof, to make Lessor Amounts and Loans available to the
Lessor on each Acquisition Date, and the Lessor has agreed, subject to the terms
thereof, to make Advances for the benefit of the Lessee on each Acquisition
Date;
WHEREAS, the Lessor desires to obtain Commitments from the Lenders
pursuant to which Loans, in a maximum aggregate principal amount at any one time
outstanding not to exceed $83,848,466.00 will be made to the Lessor in
accordance with this Loan Agreement and the Participation Agreement;
WHEREAS, each Lender is willing, on the terms and subject to the
conditions hereinafter set forth (including Article III), to make Loans to the
Lessor in an aggregate amount not to exceed its Commitment as set forth on
Schedule II to the Participation Agreement, as such Schedule may be amended from
time to time; and
WHEREAS, the Lessor will use the proceeds of such Loans to fund Advances
to the Lessee pursuant to the Participation Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Capitalized terms used but not otherwise defined in this Loan Agreement
have the respective meanings specified in
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Loan Agreement
Appendix A to this Loan Agreement; and the rules of interpretation set forth in
Appendix A to this Loan Agreement shall apply to this Loan Agreement.
ARTICLE II
AMOUNT AND TERMS OF LENDERS' COMMITMENTS
SECTION 2.1. Loan Commitments. Subject to the terms and conditions
hereof and of the Participation Agreement, each Lender severally agrees to make
loans (the "Loans") to the Lessor on each Acquisition Date for the purpose of
enabling the Lessor to acquire the Properties and to pay Property Acquisition
Costs and Property Improvement Costs, in an aggregate principal amount at any
one time outstanding not to exceed the amount of such Lender's Commitment. No
amounts paid or prepaid with respect to any Loans may be reborrowed.
SECTION 2.2. Notes. The Loans made by each Lender shall be evidenced by
a promissory note of the Lessor, substantially in the form of Exhibit A (each, a
"Note"), with appropriate insertions as to payee, date and principal amount,
payable to the order of such Lender and in a principal amount equal to the
initial Commitment of such Lender. Each Lender is hereby authorized to record
the date and amount of each Loan made by such Lender, each continuation thereof,
the date and amount of each payment or prepayment of principal thereof and the
length of each Interest Period with respect thereto, on the schedule annexed to
and constituting a part of its Note, and any such recordation shall constitute
prima facie evidence of the accuracy of the information so recorded, provided
that the failure to make any such recordation or any error in such recordation
shall not affect the Lessor's obligations hereunder or under such Note. Each
Note shall (i) be dated the date of the initial Acquisition Date, (ii) be stated
to mature on the Maturity Date and (iii) provide for the payment of interest in
accordance with this Loan Agreement.
SECTION 2.3. Prepayments.
(a) Voluntary. The Lessor may in connection with a Casualty,
Condemnation or purchase by the Lessee of a Property at any time and
from time to time prepay the Loans, in whole or in part, without premium
or penalty (subject to Section 13.10 of the Participation Agreement),
upon at least three (3) Business Days' written notice to the Agent,
specifying the date and amount of prepayment and the Land Acquisition
Costs and/or Property Improvement Costs to which such Loans are
allocable. Upon receipt of any such notice
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the Agent shall promptly notify each Lender thereof. If any such notice
is given, the amount specified in such notice shall be due and payable
on the date specified therein, together with any amounts payable
pursuant to Article XIII (including without limitation Section 13.6) of
the Participation Agreement.
(b) Mandatory. Notwithstanding the foregoing, all amounts
payable by the Lessee pursuant to Article XV, XVIII or XX of the Master
Lease shall be used to prepay the Loans and shall be applied to the
Loans and the Lessor Amounts in the manner set forth in Article VII of
the Participation.
SECTION 2.4. Interest Rates and Payment Dates.
(a) Each Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
LIBO Rate (Reserve Adjusted) determined for such day plus the Loan
Margin or, at the option of the Lessee, the Alternate Base Rate plus the
Loan Margin.
(b) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a
rate per annum which is equal to the Overdue Rate. Interest accruing
pursuant to this clause (b) shall be payable from time to time on
demand.
(c) During the Base Lease Term, Interest shall accrue on
outstanding Loans and shall be paid on the Scheduled Payment Date.
(d) Each prepayment of the Loans shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
SECTION 2.5. Repayment of Loans.
(a) During the Base Lease Term the Lessor shall repay the Loans
with respect to each Property on the dates and in the amount set forth
in the Master Rent Schedule under the Lease.
(b) The Loans shall be repaid in full on the Maturity Date.
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SECTION 2.6. Computation of Interest.
(a) If interest on the Loans shall be based on the LIBO Rate
(Reserve Adjusted), then it shall be calculated on the basis of a
360-day year and, if based on the Alternate Base Rate, then on a 360-day
year basis if the Alternate Base Rate is calculated at the Federal Funds
Rate, and a 365- or, if applicable, 366-, day year basis if the
Alternate Base Rate is calculated at the Prime Rate, in each case for
the actual days elapsed. The Agent shall as soon as practicable notify
the Lessor and the Lenders of each determination of a LIBO Rate. Any
change in the interest rate on a Loan resulting from a change in the
Alternate Base Rate or the LIBOR Reserve Percentage shall become
effective as of the opening of business on the day on which such change
becomes effective. The Agent shall as soon as practicable notify the
Lessor and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant
to any provision of this Loan Agreement shall be correct and binding on
the Lessor and each Lender in the absence of demonstrable error. The
Agent shall, at the request of the Lessor, deliver to the Lessor a
statement prepared in good faith and in reasonable detail showing the
quotations used by the Agent in determining any interest rate pursuant
to Section 2.5(a).
SECTION 2.7. Pro Rata Treatment and Payments. Each borrowing by the
Lessor from the Lenders hereunder shall be made pro rata among the Lenders
according to the respective Commitment Percentage of each such Lender. Except as
otherwise provided in Article VII of the Participation Agreement, each payment
(including each prepayment) by the Lessor on account of principal of and
interest on the Loans shall be made pro rata among the Lenders according to the
respective outstanding principal amounts of the Loans then held by each such
Lender. Subject to Article V, all payments (including prepayments) to be made by
the Lessor hereunder and under the Notes, whether on account of principal,
interest or otherwise, shall be made without setoff or counterclaim and shall be
made by the Lessor to the applicable Lender prior to 12:00 p.m.,Los Angeles,
California time, to such Lender's Funding Office specified in Schedule II to the
Participation Agreement (or to such other office as may be designated by such
Lender from time to time in a written notice to the Owner Lessor) in funds
consisting of lawful currency of the United States of America which shall be
immediately available on the scheduled date when such payment is due. Payments
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received after 1:00 p.m., San Francisco, California time, on the date due shall
for the purpose of Section 5.1 be deemed received on such day; provided,
however, that for the purposes of Section 2.5(b), such payments shall be deemed
received on the next succeeding Business Day and, unless the Lenders are
otherwise able to invest or employ such funds on the date received, subject to
interest at the Overdue Rate as provided in Section 2.5(b).
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions to Effectiveness. This Loan Agreement shall be
effective on the Documentation Date upon satisfaction of the conditions
precedent set forth in Section 2.1 of the Participation Agreement.
ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
SECTION 4.1. Payments and Distributions. All payments to be made by the
Lessor hereunder, and all payments due and payable to the Lenders pursuant to
any other Operative Document, shall be distributed by the Lessor to the
Participants in accordance with Article VII of the Participation Agreement.
ARTICLE V
LOAN AGREEMENT EVENTS OF DEFAULT
SECTION 5.1. Loan Agreement Events of Default. The occurrence of any one
or more of the following events (whether such event shall be voluntary or
involuntary or come about or be effected by operation of law or pursuant to or
in compliance with any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body) shall constitute a
"Loan Agreement Event of Default":
(a) The Lessor shall (i) default, and such default shall
continue for five (5) or more days, in the payment when due (including,
without limitation, pursuant to Section 2.5(b)) of any principal of the
Loans or (ii) default, and such default shall continue for five (5) or
more days, in the payment when due of any interest on the Loans or (iii)
default, and such default shall continue for ten or more
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Loan Agreement
days after the Lessor's receipt of notice of such default, in the
payment of any other amounts owing hereunder or under any other Loan
Document to which it is a party; or
(b) The Lessor shall default in the due performance or
observance by it of any term, covenant or agreement contained in this
Loan Agreement or the Notes (other than those referred to in clause (a)
above), and such default shall have continued unremedied for a period of
at least thirty (30) days after the Lessor's receipt of notice thereof
from the Agent or Lenders holding a majority of the outstanding Loans;
(c) Any representation, warranty or statement made or deemed
made by the Lessor herein or in any other Loan Document or the
Participation Agreement, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto, shall prove to be
untrue in any material respect on the date as of which made or deemed
made, and such misrepresentation or breach of warranty shall remain
unremedied for a period of at least thirty (30) days after notice to the
Lessor from the Agent or Lenders holding a majority of the outstanding
Loans; or
(d) Any Lease Event of Default shall have occurred and be
continuing; or
(e) The Lessor shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled "Bankruptcy," as now
or hereafter in effect, or any successor thereto (the "Bankruptcy
Code"); or an involuntary case is commenced against the Lessor and the
petition is not dismissed within ninety (90) days after commencement of
the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the
property of the Lessor and is not removed within ninety (90) days; or
the Lessor commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now
or hereafter in effect relating to the Lessor; or there is commenced
against the Lessor any such proceeding which remains undismissed for a
period of ninety (90) days; or the Lessor is adjudicated insolvent or
bankrupt which adjudication is not withdrawn or reversed within ninety
(90) days; or any order of relief or other order approving any such case
or proceeding is entered which order is not withdrawn or reversed within
ninety (90) days; or the Lessor suffers any appointment of any custodian
or the like for it
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or any substantial part of its property to continue undischarged or
unstayed for a period of ninety (90) days; or the Lessor makes a general
assignment for the benefit of creditors; or any corporate action is
taken by the Lessor for the purpose of effecting any of the foregoing
and in the case of any of the foregoing, there is a delay or disruption
whether prior to or following the expiration of any of the foregoing
time periods of any amounts payable to the Lenders and Agent under this
Loan Agreement or any of the other Operative Documents.
SECTION 5.2. Remedies.
(a) Upon the occurrence of any Loan Agreement Event of Default,
(i) if such event is a Loan Agreement Event of Default specified in
clause (e) above or a Lease Event of Default specified in Section
16.1(h) or (i) of the Master Lease, the Commitments of all Lenders shall
automatically and immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Loan
Agreement and the Notes shall immediately become due and payable, and
(ii) if such event is any other Loan Agreement Event of Default, any or
all of the following actions may be taken: (x) Lenders holding a
majority in principal amount of the outstanding Loans ("Required
Lenders") may, by notice to the Lessor, declare the Loan Commitments to
be terminated forthwith, whereupon the Loan Commitments shall
immediately terminate and (y) with the consent of Lenders holding a
majority of the outstanding Loans, the Agent may, or upon the request of
Lenders holding a majority of the outstanding Loans, the Agent shall, by
notice to the Lessor, declare all Loans hereunder (with accrued interest
thereon) and all other amounts owing with respect to the Loans under
this Loan Agreement and the Notes to be due and payable forthwith,
whereupon all Loans shall immediately become due and payable (any of the
foregoing occurrences or actions referred to in clause (i) or (ii)
above, an "Acceleration"). Except as expressly provided above in this
Article V, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
(b) Upon the occurrence of any Loan Agreement Event of Default
and at any time thereafter so long as any Loan Agreement Event of
Default shall be continuing, the Agent shall, upon the written
instructions of Lenders holding a majority in principal amount of the
outstanding Loans, exercise any or all of the rights and powers and
pursue any and all of the remedies available to it hereunder and
(subject to the terms thereof) under the Lease and the other
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Loan Documents and shall have any and all rights and remedies available
under the Uniform Commercial Code or any provision of law.
(c) Upon the occurrence of any Loan Agreement Event of Default
and at any time thereafter so long as any Loan Agreement Event of
Default shall be continuing, the Agent shall, upon the written
instructions of Lenders holding a majority in principal amount of the
outstanding Loans, proceed to protect and enforce this Loan Agreement,
the Notes, the Lease and the other Operative Documents by suit or suits
or proceedings in equity, at law or in bankruptcy, and whether for the
specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted, or for foreclosure
hereunder, or for the appointment of a receiver or receivers for the
Properties or any Property or for the recovery of judgment for the
indebtedness secured thereby or for the enforcement of any other proper,
legal or equitable remedy available under Applicable Law.
(d) Subject to Section 8.11, the Lessor shall be liable for any
and all accrued and unpaid amounts due hereunder before, after or during
the exercise of any of the foregoing remedies, including all reasonable
legal fees and other reasonable costs and expenses incurred by the Agent
or any Lender by reason of the occurrence of any Loan Agreement Event of
Default or the exercise of remedies with respect thereto.
(e) With respect to the occurrence and continuance of any Lease
Default under Section 16.1(a), (b) or (c) of the Master Lease, the
Lessor agrees that the Agent or any Participant may give notice of such
Lease Default on behalf of the Lessor to the Lessee. With respect to any
other Lease Default, the Lessor agrees that the Agent may give notice of
such Lease Default on behalf of the Lessor to the Lessee. When a Lease
Event of Default has occurred and is continuing, the Agent, at the
direction of Lenders holding a majority of the outstanding Loans, may
exercise any or all of the remedies of the Lessor under Article XVI of
the Master Lease, and the Lessor shall exercise such remedies at the
direction of the Agent. The Lessor shall demand the purchase of
properties by the Lessee pursuant to Section 16.2(e) of the Master Lease
at the direction of Lenders holding a majority of the outstanding Loans.
In addition, the Lenders may request that the Agent, and upon direction
of the Required Lenders the Agent shall, exercise its rights
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against the Additional Collateral under the Pledge Agreement.
ARTICLE VI
CERTAIN REMEDIAL MATTERS; RELEASE
SECTION 6.1. Certain Remedial Matters. Notwithstanding any other
provision of this Loan Agreement or any other Loan Document the Lessor
shall at all times retain the right, but not to the exclusion of the
Agent, (A) to receive from the Lessee all notices, certificates and
other documents and all information that the Lessee is permitted or
required to give or furnish to the "Lessor" or the "Lessor" pursuant to
the Lease, the Participation Agreement or any other Operative Document,
(B) to provide such insurance as the Lessee shall have failed to
maintain and (C) subject to the other applicable provisions of this Loan
Agreement, to perform for the Lessee under Article XVII of the Master
Lease.
SECTION 6.2. Release of Properties, etc.
(a) If the Lessee shall at any time purchase any Property
pursuant to Article XV of the Master Lease, or exercise its Purchase
Option with respect to any Property under Article XVIII of the Master
Lease, or if all of the Properties shall be sold in accordance with and
the Lessee otherwise satisfies each of the obligations and conditions
set forth at Article XX of the Master Lease, then, upon application of
such amounts to prepay the Loans pursuant to Article IV and the Agent's
and the Lenders' receipt of all accrued interest and any other payments
due and owing from Lessee and/or the Lessor to the Agent and the Lenders
on such date, including without limitation pursuant to Article XIII of
the Participation Agreement, such Property shall be released from the
Lien in favor of the Lenders created by the Assignment of Lease and
Rent, to the extent relating to such Property, all without delivery of
any instrument or performance of any act by any party.
(b) Upon the termination of the Lenders' Commitments and the
payment in full of the Loans and all other amounts owing by the Lessor
hereunder or under any other Loan Document, the Properties shall be
released from the Lien in favor of the Lenders created by the Assignment
of Lease and Rent, to the extent relating to such Property, without
delivery of any instrument or performance of any act by any party.
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(c) Upon request of the Lessor following a release of any
Property described in clause (a) or (b) above, the Agent shall, at the
sole cost and expense of the Lessor, execute and deliver to the Lessor
or the Lessee such documents as the Lessor shall reasonably request to
evidence such release, including, if requested, a release of Assignment
of Lease and Rent to the extent relating to such Property.
ARTICLE VII
THE AGENT
SECTION 7.1. Appointment. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Loan Agreement and the
other Operative Documents, and each such Lender irrevocably authorizes the
Agent, in such capacity, to take such action on its behalf under the provisions
of this Loan Agreement and the other Operative Documents and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Loan Agreement and the other Operative Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Loan Agreement, the Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender or any other party to the Operative
Documents, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or any other
Operative Document or otherwise exist against the Agent.
SECTION 7.2. Delegation of Duties. The Agent may execute any of its
duties under this Loan Agreement and the other Operative Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
SECTION 7.3. Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Loan Agreement or any other Operative
Document (except for its or such Person's own gross negligence or willful
misconduct or breach of any of its representations, warranties or covenants
under the Operative Documents) or (b) responsible in any manner to any of the
Lenders or any other party to the Operative Documents for any recitals,
statements,
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representations or warranties made by the Lessor or the Lessee or any officer
thereof contained in this Loan Agreement or any other Operative Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Loan Agreement or
any other Operative Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Loan Agreement or any other
Operative Document or for any failure of the Lessor or the Lessee to perform its
obligations hereunder or thereunder. The Agent shall not be under any obligation
to any Lender or any other party to the Operative Documents to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Loan Agreement or any other Operative Document, or to
inspect the properties, books or records of the Lessor or the Lessee.
SECTION 7.4. Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, facsimile, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Lessor or the Lessee), independent accountants and
other experts selected by the Agent. The Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Loan Agreement or any other Operative Document unless it shall
first receive the advice or concurrence of Lenders holding a majority of the
outstanding Loans or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Loan Agreement and the other Operative Documents in accordance with a request of
Lenders holding a majority of the outstanding Loans, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
SECTION 7.5. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Loan Agreement Default or Loan
Agreement Event of Default hereunder unless the Agent has received notice from a
Lender or the Lessor referring to this Loan Agreement, describing such Loan
Agreement Default or Loan Agreement Event of Default and stating that such
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notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall promptly give notice thereof to the Lenders and the
Lessee. The Agent shall take such action with respect to such Loan Agreement
Default or Loan Agreement Event of Default as shall be directed by Lenders
holding a majority of the outstanding Loans; provided, however, that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Loan Agreement Default or Loan Agreement Event of Default as it
shall deem advisable in the best interests of the Lenders.
SECTION 7.6. Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Lessor or the Lessee, shall be
deemed to constitute any representation or warranty by the Agent to any Lender.
Each Lender represents to the Agent that it has, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Lessor and the Lessee and made its own
decision to make its Loans hereunder and enter into this Loan Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Loan
Agreement and the other Operative Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Lessor and the Lessee.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Lessor or the Lessee which
may come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
SECTION 7.7. Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Lessee and without
limiting the obligation of the Lessee to do so), ratably according to the
percentage each
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Lender's Commitment bears to the total Commitments of all of the Lenders on the
date on which indemnification is sought under this Section 7.7 (or, if
indemnification is sought after the date upon which the Lenders' Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with the percentage that each Lender's Commitment bears to the
Commitments of all of the Lenders immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever (including without limitation all reasonable fees and disbursements
of any law firm or other external counsel of the Agent, the allocated cost of
internal legal services and all disbursements of internal counsel of the Agent)
which may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the Agent
in any way relating to or arising out of, the Commitments, this Loan Agreement,
any of the other Operative Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Agent under or in connection with any of
the foregoing; provided, however, that no Lender shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Agent's gross negligence or willful misconduct. The agreements in this
Section 7.7 shall survive the payment of the Notes and all other amounts payable
hereunder.
SECTION 7.8. Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Lessor, the Lessee and their Affiliates as though The Sumitomo Bank, Limited,
San Francisco Branch, were not the Agent hereunder and under the other Operative
Documents and without notice to or consent of the Banks. Each Lender
acknowledges that, pursuant to such activities, The Sumitomo Bank, Limited, San
Francisco Branch, or its Affiliates may receive information regarding the
Lessee, the Lessor or their Affiliates (including information that may be
subject to confidentiality obligations in favor of the Lessee, the Lessor or
their Affiliates) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to any Loans made or renewed by
it and any Note issued to it, The Sumitomo Bank, Limited, San Francisco Branch,
shall have the same rights and powers under this Loan Agreement and the other
Operative Documents as any Lender and may exercise the same as though it were
not the Agent, and, in the event The
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Sumitomo Bank, Limited, San Francisco Branch, becomes a Lender, the terms
"Lender" and "Lenders" shall include The Sumitomo Bank, Limited, San Francisco
Branch, in its individual capacity.
SECTION 7.9. Successor Agent. The Agent may resign as Agent upon 20
days' notice to the Lenders. If the Agent shall resign as Agent under this Loan
Agreement and the other Operative Documents, then Lenders holding a majority of
the outstanding Loans shall appoint a successor agent for Lenders, which
successor agent shall be a commercial bank organized under the laws of the
United States of America or any State thereof or under the laws of another
country which is doing business in the United States of America and having a
combined capital, surplus and undivided profits of at least $100,000,000 (and if
no Lease Default or Lease Event of Default exists, shall be approved by the
Lessee (which consent shall not be unreasonably withheld)), whereupon such
successor agent shall succeed to the rights, powers and duties of the Agent, and
the term "Agent" shall mean such successor agent effective upon such appointment
and approval, and the former Agent's rights, powers and duties as Agent shall be
terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Loan Agreement or any holders of the Notes.
If no successor Agent has accepted appointment as Agent by the date which is 20
days following a resigning Agent's notice of resignation, the resigning Agent's
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of the Agent hereunder until such time, if any, as
Lenders holding a majority of the outstanding Loans appoint a successor Agent as
provided above. After any retiring Agent's resignation as Agent, all of the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Loan Agreement
and the other Operative Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Amendments and Waivers. Neither this Loan Agreement, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of Section
14.5 of the Participation Agreement.
SECTION 8.2. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be given in accordance with Section 14.3 of the
Participation Agreement.
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Loan Agreement
SECTION 8.3. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 8.4. Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Loan
Agreement and the Notes and the making of the Loans hereunder.
SECTION 8.5. Successors and Assigns; Assignment by Lessor. This Loan
Agreement shall be binding upon and inure to the benefit of the Lessor, each
Lender, the Agent, each future holder of a Note and their respective successors
and assigns.
SECTION 8.6. Adjustments. If any Lender (a "Benefitted Lender") shall at
any time receive any payment of all or part of its Loans, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by setoff, pursuant to events or proceedings of the nature
referred to in Section 5.1(e), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
SECTION 8.7. Counterparts. This Loan Agreement may be executed by one or
more of the parties to this Loan Agreement on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of
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Loan Agreement
this Loan Agreement signed by all the parties shall be lodged with the Lessor
and the Agent.
SECTION 8.8. Severability. Any provision of this Loan Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 8.9. Intention. This Loan Agreement and the other Operative
Documents represent the agreement of the Lessor, the Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other
Operative Documents.
SECTION 8.10. GOVERNING LAW. THIS LOAN AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS LOAN AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA.
SECTION 8.11. Limitation of Liability. The parties hereto agree that
except as specifically set forth in the Lease or in any other Operative
Document, Lessor shall have no personal liability whatsoever to the Lessee,
Agent, any Lender or their respective successors and assigns for any liability
or obligation hereunder or under any other Operative Document (including without
limitation, the payment of the principal of, or interest on, the Loans) or for
any claim based on or in respect of this Loan Agreement or any of the other
Operative Documents or arising in any way from the transactions contemplated
hereby or thereby and the recourse shall be solely had against the Lessor's
interest in the Property; provided, however, that Lessor shall be liable in its
individual capacity (a) for its own willful misconduct or gross negligence (or
negligence in the handling of funds), (b) breach of any of its representations,
warranties or covenants under the Operative Documents, or (c) for any Tax based
on or measured by any fees, commission or compensation received by it for acting
as the Lessor as contemplated by the Operative Documents. It is understood and
agreed that, except as provided in the preceding sentence: (i) Lessor shall have
no personal liability under any of the Operative Documents as a result of acting
pursuant to and consistent with any of the Operative Documents; (ii) all
obligations of Lessor to the Lessee or the
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Loan Agreement
Lenders are solely nonrecourse obligations except to the extent that it has
received payment from others; and (iii) all such personal liability of Lessor is
expressly waived and released as a condition of, and as consideration for, the
execution and delivery of the Operative Documents by Lessor.
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Loan Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
SUMITOMO BANK LEASING AND FINANCE,
INC. as Lessor
By /s/ WILLIAM M. GINN
-----------------------------------
Name: William M. Ginn
Title: President
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Loan Agreement
THE SUMITOMO BANK, LIMITED,
LOS ANGELES BRANCH as Agent
By /s/ AZAR SHAKERI
-----------------------------------
Name: Azar Shakeri
Title: Vice President
S-2
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Loan Agreement
THE BANK OF NOVA SCOTIA
By /s/ EDWARD KOFMAN
------------------------------------
Name: Edward Kofman
Title: Relationship Manager
S-3
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Loan Agreement
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "Rabobank
Nederland," New York Branch
By /s/ IAN REECE
-----------------------------------
Name: Ian Reece
Title: Senior Credit Manager
By /s/ M. CHRISTINA DEBLER
-----------------------------------
Name: M. Christina Debler
Title: Vice President
S-4
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS; INTERPRETATION
ARTICLE II
AMOUNT AND TERMS OF LENDERS' COMMITMENTS
SECTION 2.1. Loan Commitments.......................................................2
SECTION 2.2. Notes..................................................................2
SECTION 2.3. Prepayments............................................................2
SECTION 2.4. Interest Rates and Payment Dates.......................................3
SECTION 2.5. Repayment of Loans.....................................................3
SECTION 2.6. Computation of Interest................................................4
SECTION 2.7. Pro Rata Treatment and Payments........................................4
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions to Effectiveness............................................5
ARTICLE IV
PAYMENTS AND DISTRIBUTIONS
SECTION 4.1. Payments and Distributions.............................................5
ARTICLE V
LOAN AGREEMENT EVENTS OF DEFAULT
SECTION 5.1. Loan Agreement Events of Default.......................................5
SECTION 5.2. Remedies...............................................................7
ARTICLE VI
CERTAIN REMEDIAL MATTERS; RELEASE
SECTION 6.1. Certain Remedial Matters...............................................9
SECTION 6.2. Release of Properties, etc.............................................9
ARTICLE VII
THE AGENT
SECTION 7.1. Appointment...........................................................10
SECTION 7.2. Delegation of Duties..................................................10
SECTION 7.3. Exculpatory Provisions................................................10
SECTION 7.4. Reliance by Agent.....................................................11
SECTION 7.5. Notice of Default.....................................................11
SECTION 7.6. Non-Reliance on Agent and Other Lenders...............................12
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SECTION 7.7. Indemnification.......................................................12
SECTION 7.8. Agent in Its Individual Capacity......................................13
SECTION 7.9. Successor Agent.......................................................14
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Amendments and Waivers................................................14
SECTION 8.2. Notices...............................................................14
SECTION 8.3. No Waiver; Cumulative Remedies........................................15
SECTION 8.4. Survival of Representations and Warranties............................15
SECTION 8.5. Successors and Assigns; Assignment by Lessor..........................15
SECTION 8.6. Adjustments...........................................................15
SECTION 8.7. Counterparts..........................................................15
SECTION 8.8. Severability..........................................................16
SECTION 8.9. Intention.............................................................16
SECTION 8.10. GOVERNING LAW.........................................................16
SECTION 8.11. Limitation of Liability...............................................16
EXHIBIT
Exhibit A Form of Note
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EXHIBIT A
TO LOAN AGREEMENT
NOTE
$__________________ [Acquisition Date]
FOR VALUE RECEIVED, the undersigned, SUMITOMO BANK LEASING AND FINANCE,
INC., a Delaware corporation (the "Lessor"), promises to pay to the order of
____________________ (the "Lender") on the Maturity Date the principal sum of
_________________ DOLLARS ($ ________) or, if less, the aggregate unpaid
principal amount of all Loans made by the Lender pursuant to that certain Loan
Agreement, dated as of October 18, 1996 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the "Loan
Agreement"), among the Lessor and the various financial institutions (including
the Lender) as are, or may from time to time become, parties thereto.
The Lessor also promises to pay interest on the unpaid principal amount
hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Loan Agreement.
Payments of both principal and interest are to be made without setoff or
counterclaim in lawful money of the United States of America in same day or
immediately available funds to the account of the Lender specified in Schedule
II to the Participation Agreement (or to such other account as the Lender may
from time to time designate in a written notice to the Lessor).
This Note is one of the Notes referred to in, and evidences indebtedness
incurred under, the Loan Agreement, to which reference is made for a description
of the security for this Note, the limitations on recourse for this Note and for
a statement of the terms and conditions on which the Lessor is permitted and
required to make prepayments and repayments of principal of the indebtedness
evidenced by this Note and on which such indebtedness may be declared to be or
automatically become immediately due and payable.
The Lender is authorized to endorse the schedule attached hereto (and
any continuation thereof) in accordance with the provisions of the Loan
Agreement.
26
Capitalized terms used but not otherwise defined herein have the
respective meanings specified in Appendix A to the Loan Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN CALIFORNIA, AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA.
SUMITOMO BANK LEASING AND FINANCE, INC.,
as Lessor
By____________________________________
Name:
Title:
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LOANS AND PRINCIPAL PAYMENTS
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Amount of Unpaid
Amount of Principal Principal Notation
Date Loans Made Repaid Balance Total Made By
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Amount of Unpaid
Amount of Principal Principal Notation
Date Loans Made Repaid Balance Total Made By
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