EXHIBIT 4.9
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PROMISSORY NOTE A
IN REPLACEMENT OF REPLACEMENT NOTE #1
$28,370,074.56 December 29, 2000
(One of Two Notes Given
In Replacement for Replacement Note #1,
dated January 1, 1998)
FOR VALUE RECEIVED, the undersigned, AMFAC/JMB HAWAII, L.L.C.,
(herein called "Borrower"), a Hawaii limited liability company, hereby
promises to pay to FRED HARVEY TRANSPORTATION COMPANY, an Arizona
corporation (the "Payee") the principal sum of TWENTY EIGHT MILLION THREE
HUNDRED SEVENTY THOUSAND SEVENTY FOUR AND 56/100 DOLLARS ($28,370,074.56)
on February 17, 2007 (the "Maturity Date"), or such earlier date on which
this Note becomes due and payable, with interest (computed on the basis of
a 365- (or, if applicable, 366-) day year) on the unpaid balance thereof at
a PER ANNUM rate equal to the "Base Rate" as announced from time to time by
Bank of Hawaii plus 2% PER ANNUM (changing as and when such Base Rate
changes) from the original date of this Note, being January 1, 1998,
payable on the 15th day of February, May, August and November in each year;
provided, that the Payee may, at its option, defer all or a portion of the
interest payable on any such date, but in no event shall such payment be
deferred beyond the Maturity Date. Payee hereby agrees that, so long as
there is no Event of Default which has occurred and is continuing, Payee
shall defer Borrower's obligation to pay, and shall not demand payment of,
any installment of interest under this Note that would otherwise become due
and payable prior to December 31, 2006 (collectively, the "Deferred
Interest"). Without limiting any of Payee's rights or remedies under the
Note (or respecting the Security, or otherwise in the event of an Event of
Default under the Note or this Agreement) all such Deferred Interest
(including interest thereon) shall be due and payable on December 31, 2006,
and, thereafter, installments of interest and principal shall continue to
be payable as set forth in the Note. Any installment of interest under this
Note that is deferred by the Payee on or after January 1, 1998, whether
pursuant to the terms hereof or otherwise (including, without limitation,
under the Prior Note (as defined below)), shall not be added to principal,
but shall also bear interest from the due date of such installment through
the date of payment at the Base Rate, plus 2% PER ANNUM and shall be
compounded on each date that such interest would otherwise be payable were
it not for the deferral permitted hereunder.
Payments of principal and premium, if any, and of interest on this
Note are to be made in lawful money of the United States of America at the
principal office of the Payee in Chicago, Illinois.
The unpaid principal amount of this Promissory Note may be prepaid in
whole or in part at any time by the Borrower without premium, penalty or
costs whatsoever, provided that all accrued and unpaid interest on the
principal amount so prepaid is paid at such time. In addition, this Note
shall be subject to mandatory prepayment in accordance with the provisions
set forth below.
THIS NOTE, TOGETHER WITH THAT CERTAIN PROMISSORY NOTE B IN
REPLACEMENT OF REPLACEMENT NOTE #1 (THE "OTHER REPLACEMENT NOTE"), IS GIVEN
IN SUBSTITUTION FOR, AND COLLECTIVELY WITH THE OTHER REPLACEMENT NOTE,
AMENDS AND RESTATES, THAT CERTAIN REPLACEMENT NOTE #1 (THE "PRIOR NOTE"),
DATED AS OF JANUARY 1, 1998, MADE BY AMFAC/JMB HAWAII, INC., A HAWAII
CORPORATION, AS PREDECESSOR BY MERGER TO THE UNDERSIGNED, IN FAVOR OF
PAYEE, AS AMENDED BY THAT CERTAIN NOTE MODIFICATION AGREEMENT, DATED AS OF
DECEMBER 31, 1998. BORROWER FURTHER ACKNOWLEDGES THAT SUCH PRIOR NOTE, WHEN
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TAKEN TOGETHER WITH THAT CERTAIN REPLACEMENT NOTE #2 MADE BY BORROWER IN
FAVOR OF PAYEE, AS OF JANUARY 1, 1998, IN THE STATED PRINCIPAL AMOUNT OF
$15,000,000 (WITH AN ORIGINAL OUTSTANDING BALANCE THEREUNDER OF
$7,920,322.37), WAS MADE IN AMENDMENT, RESTATEMENT, DIVISION AND
REPLACEMENT OF A CERTAIN NOTE, DATED FEBRUARY 17, 1997, MADE BY BORROWER IN
FAVOR OF PAYEE IN THE ORIGINAL PRINCIPAL AMOUNT OF $104,759,324, AS FURTHER
SET FORTH IN THAT CERTAIN NOTE SPLIT AGREEMENT, DATED AS OF JANUARY 1,
1998, BETWEEN BORROWER AND PAYEE. AS OF THE DATE OF THIS NOTE, THE
OUTSTANDING PRINCIPAL BALANCE OF THE PRIOR NOTE WAS $96,429,402.90, AND THE
ACCRUED AND UNPAID INTEREST UNDER THE PRIOR NOTE WAS $39,529,919.54 WHICH
SHALL BE ALLOCATED AMONG THIS NOTE AND THE OTHER REPLACEMENT NOTE SUCH THAT
THE AMOUNT OF ACCRUED AND UNPAID INTEREST UNDER THIS NOTE AS OF THE DATE
HEREOF IS AS SET FORTH ON THE SCHEDULE ATTACHED TO THIS NOTE.
This Note is guaranteed by separate Guarantees (the "Guarantees")
made by various direct and indirect subsidiaries of Borrower (each a
"Guarantor"), in accordance with a certain separate Guaranty of Payment
made by each Guarantor in favor of Payee, executed on July 19, 1999 and
effective as of the date of the Prior Note. Each such Guarantee has been
ratified and affirmed by each Guarantor in accordance with that certain
Ratification of Guarantees, of even date herewith, made by the Guarantors
in favor of Payee and the holders of additional notes referred to therein.
The Guarantees are secured by, among other things, mortgages on real
property. Borrower hereby covenants and agrees that, from and after the
date hereof, Borrower shall provide Payee with such additional security for
the Note ("Additional Security") in such amount and in such form or forms
as Payee shall deem acceptable, as Payee may request in Payee's sole and
absolute discretion (provided that Borrower shall not be required to
provide Additional Security that would violate any existing obligations of
Borrower), and Borrower agrees to execute and deliver such documents as
Payee may reasonably require in order to evidence and perfect Payee's
security interest therein. Borrower and Payee acknowledge and agree that
such Additional Security may be in the form of mortgages on real or
personal property, pledges of interests in corporations, partnerships or
limited liability companies or other securities, or pledges of other assets
as may be identified by Borrower and Payee. In the event that Borrower
fails to provide such Additional Security in a manner acceptable to Payee
within thirty (30) days after Borrower requests same, Payee may thereafter
declare all Principal and accrued Interest under this Note to be
immediately due and payable, upon written notice to Borrower.
If any of the following events ("Events of Default") occurs and is
continuing:
(a) Borrower fails to pay any principal hereon when the same shall
become due and payable, or fails, within five days after the same becomes
due and payable, to pay any interest hereon;
(b) Borrower fails to make any payment in respect of any of
Borrower's indebtedness for borrowed money having an aggregate principal
amount of more than $1,000,000 when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise, but subject to any
applicable grace period) or fails to perform or observe any other condition
or covenant, or any other event shall occur or condition shall exist, under
any agreement or instrument relating to any such indebtedness for borrowed
money (including, without limitation, under the Indenture (as defined
below)), if the effect of such failure, event or condition is to cause such
indebtedness to become due prior to its expressed maturity;
(c) Borrower becomes insolvent or generally fails to pay, or admits
in writing its inability to pay its debts as they become due; Borrower
applies for a trustee, receiver or other custodian for it or a substantial
part of its property; a trustee, receiver or other custodian is appointed
for Borrower or for a substantial part of its property; or any bankruptcy,
reorganization, debt arrangement, or other cause or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding,
is commenced in respect of Borrower;
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(d) A final judgment or order for the payment of money in excess of
$100,000 shall be rendered against Borrower or any of its subsidiaries and
such judgment or order shall continue unsatisfied and unstayed for a period
of 30 days;
(e) The Borrower has received a notice of default by the Trustee
(as defined below) under the Indenture (as defined below), which default is
not cured by the expiration of any applicable cure period provided therefor
in the Indenture, if the effect of such failure, event or condition is to
cause such indebtedness to become due prior to its expressed maturity;
(f) Holders of any COLA Units (as defined in the Indenture) or the
Trustee have instituted suit or otherwise brought any action or claim
against the Borrower or any of its affiliates respecting such COLA Units,
which suit, action or claim has not been dismissed, discharged, settled or
otherwise satisfied within sixty (60) days after the institution thereof,
nor has Borrower obtained a third party bond reasonably acceptable to the
Lender to cover the amount demanded by any such suit, action or claim; or,
(g) A default of Borrower or any Guarantor has occurred and is
continuing (beyond any applicable cure period set forth therein) under any
document or instrument provided by Borrower or any Guarantor to Lender as
security for this Note or any Guaranty.
then, in the case of any Event of Default under CLAUSES (c), (e) OR (f)
above, all indebtedness evidenced by this Note and all interest hereon
shall automatically be and become immediately due and payable, and in the
case of any other Event of Default, the holder hereof may, by notice to
Borrower, declare all indebtedness evidenced by this Note and all interest
hereon to be forthwith due and payable, whereupon all indebtedness
evidenced by this Note and all such interest will become and be forthwith
due and payable, all without presentation, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Borrower.
Borrower and Payee acknowledge that Borrower's obligations hereunder
constitute "Senior Indebtedness" for purposes of the Indenture, dated as of
March 14, 1989, among Borrower, certain of Borrower's affiliates, and Bank
One, N.A., as successor-in-interest to Continental Bank, National
Association, as trustee (the "Trustee"), as the same may be amended,
supplemented or otherwise modified from time to time (the "Indenture").
Upon a sale of property which is collateral for this Note ("Sale
Property"), Payee agrees to release its liens upon the Sale Property to the
extent necessary to allow the Borrower or any Guarantor to effectuate the
sale, provided there is no default or event of default under any note
(including this Note) that constitutes Senior Indebtedness and is held by
Payee or any of its affiliates, and the sale realizes the fair value of the
Sale Property, as determined in the sole discretion of the holders of all
such Senior Indebtedness (the "Senior Debtholders"). In the event of a
sale or other disposition of Sale Property to which the Senior Debtholders
have consented, for which the Senior Debtholders have released their liens,
or which the Senior Debtholders have otherwise effectuated (whether or not
the conditions of the first sentence of this paragraph have been met), the
Borrower or such Guarantor, as applicable, shall be entitled to the
proceeds of, or other consideration for, such sale or disposition in an
amount sufficient for the Borrower and such Guarantor to (i) pay any
expenses associated with the sale or disposition (including a reasonable
estimate of the anticipated cash amounts that will be payable under any
then-existing tax agreement between any Senior Debtholder and Borrower
respecting such sale), and (ii) satisfy their anticipated cash needs for
the 12 month period after the date of such sale or disposition, taking into
account cash on hand and reasonably expected receipts and expenditures
from all sources, with due consideration for (i) the probability and
uncertainty of receipts and the impact upon the Borrower and such Guarantor
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if any such expected receipts are not received as and when reasonably
anticipated, and (ii) the probability of expenditures beyond those
reasonably expected and the impact upon the Borrower and such Guarantor if
any such additional expenditures must be incurred or any expected
expenditures must be incurred prior to the time reasonably expected. The
AHI Group agrees that Payee shall be entitled to all other proceeds of any
such sales or dispositions within five (5) days of demand therefor.
Notwithstanding anything in this Note to the contrary, this Note is
subject to the terms of that certain Restructuring Agreement, dated as of
December 29, 2000, by and among, Borrower, Payee, each Guarantor and
certain of their respective affiliates.
Notwithstanding anything to the contrary contained in this Note, no
director, officer or employee of the Borrower shall have any personal
liability of any kind or nature directly or indirectly in connection with
this Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Illinois applicable to contracts made and to be wholly
performed in said State, including, but not limited to, the legality of
interest rate.
AMFAC/JMB HAWAII, L.L.C.
a Hawaii limited liability company
By:
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Title: Manager
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SCHEDULE 1
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Attached to Promissory Note A in Replacement of Replacement Note #1
(original note dated January 1, 1998) of Amfac/JMB Hawaii, L.L.C., payable
to the order of Fred Harvey Transportation Company.
PRINCIPAL PAYMENTS
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Amount of Unpaid
Principal Interest Unpaid
Advanced as of date Principal Notation
Date (Repaid) specified) Balance Made by
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12/29/00 $11,629,925.44 $28,370,074.56