[Execution Copy]
FIRST AMENDMENT AND RESTATEMENT
Dated as of June 20, 1997
TO
LOAN AGREEMENT
Dated as of December 15, 1994
TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I
Definitions............................ 1
ARTICLE II
Notes............................... 1
2.01 Loans....................................................... 1
2.02 Characteristics of all Notes................................ 2
2.03 Characteristics of Series A Notes and the Series B Notes.... 5
2.04 Prepayment of Notes......................................... 5
2.05 Register, Transfer, and Exchange of Notes................... 6
2.06 Application of Payments Prior to an Event of Default........ 7
2.07 Amendments of Lease Agreement; the Lessor Actions........... 8
2.08 Investment of Funds......................................... 9
ARTICLE III
Covenants of the Lessor...................... 10
ARTICLE IV
Limitation of Liability...................... 11
ARTICLE V
Events of Default; Remedies.................... 12
5.01 Events of Default........................................... 12
5.02 Specific Remedies........................................... 13
5.03 Application of Proceeds..................................... 13
5.04 Rescission.................................................. 14
5.05 Rights and Remedies Cumulative; No Waiver................... 14
5.06 Restoration of Rights and Remedies.......................... 14
5.07 Compliance with Law......................................... 15
ARTICLE VI
Agent............................... 15
6.01 Appointment................................................. 15
6.02 Delegation of Duties........................................ 15
6.03 Nature of Duties; Independent Credit Investigation.......... 15
i
6.04 Actions in Discretion of the Agent; Required Lenders' Consent. 16
6.05 Exculpatory Provisions........................................ 16
6.06 Reimbursement and Indemnification............................. 16
6.07 Reliance by the Agent......................................... 17
6.08 Individual Capacity........................................... 17
6.09 Holders of Notes.............................................. 17
6.10. Successors.................................................... 17
6.11. Distributions to the Lenders.................................. 17
ARTICLE VII
Miscellaneous............................. 18
7.01 Notices....................................................... 18
7.02 Survival...................................................... 18
7.03 Amendments and Waivers........................................ 18
7.04 Entire Agreement.............................................. 18
7.05 Governing Law................................................. 18
7.06 Non-Recourse To Certain Parties............................... 18
7.07 Invalidity of Provisions...................................... 19
7.08 Counterparts.................................................. 19
7.09 Effectiveness................................................. 19
7.10. Headings...................................................... 19
7.11. Holders of Notes.............................................. 19
7.12. Successors and Assigns........................................ 19
ii
FIRST AMENDMENT AND RESTATEMENT, dated as of June 20, 1997, to the
LOAN AGREEMENT (the "Original Loan Agreement"), dated as of December 15, 1994,
among FLEET NATIONAL BANK (as successor to SHAWMUT BANK CONNECTICUT, NATIONAL
ASSOCIATION), a national banking association, not in its individual capacity but
solely as the Owner Trustee under the Trust Agreement (the "Lessor"); CREDIT
LYONNAIS LOS ANGELES BRANCH, a branch duly licensed under the laws of the State
of California of a banking corporation organized and existing under the laws of
the Republic of France; BANK LEUMI-LE-ISRAEL, B.M., a banking corporation
organized and existing under the laws of Israel; THE FUJI BANK, LIMITED, LOS
ANGELES AGENCY, an agency duly licensed under the laws of the State of
California, of a banking corporation organized and existing under the laws of
Japan; THE INDUSTRIAL BANK OF JAPAN LIMITED, LOS ANGELES AGENCY, an agency duly
licensed under the laws of the State of California of a banking corporation
organized and existing under the laws of Japan and VIA BANQUE, S.A., a banking
corporation organized and existing under the laws of the Republic of France
(each of the foregoing which holds a Series A Note being, in such capacity as
"Series A Lender"; and each of the foregoing which holds a Series B Note being,
in such capacity, a "Series B Lender") and CREDIT LYONNAIS NEW YORK BRANCH, a
branch duly licensed under the laws of New York of a banking corporation
organized and existing under the laws of the Republic of France, as agent for
the Series A Lenders and the Series B Lenders (the "Agent").
The parties hereto hereby agree that the Original Loan Agreement is
amended and restated to read in its entirety as follows:
ARTICLE I
---------
Definitions
-----------
Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Definition Schedule attached as
Exhibit A to the Participation Agreement.
ARTICLE II
----------
Notes
-----
2.01 Loans.
-----
(a) General. The Series A Lenders and the Series B Lenders have
-------
severally, and on the other terms and subject to the conditions set forth in
this Loan Agreement and the other Transaction Documents, made loans to the
Lessor on each Closing Date and Advance Date. The Lessor's obligation to repay
the loans hereunder is evidenced by its non-recourse promissory notes, referred
to as the Series A Notes and the Series B Notes, executed in favor of the Series
A Lenders and the Series B Lenders, respectively, as more fully described below.
1
(b) Procedure for Borrowings. All loans having been disbursed, this
------------------------
Subsection is intentionally left blank.
2.02 Characteristics of all Notes.
----------------------------
(a) General. The Notes (i) shall be dated as of the initial Closing
-------
Date under the Participation Agreement, (ii) shall entitle the holders thereof
to payments of interest on the outstanding principal amount thereof for each day
during each Payment Period applicable thereto from the date thereof, (iii) shall
entitle the holders thereof to repayment of principal on the last day of each
Payment Period beginning March 31, 2001, in the amounts and to the extent set
forth in the payment schedules attached to such Notes, and (iv) as provided in
Section 2.06 hereof, shall be exchangeable for an equal aggregate principal
amount of Notes of like tenor. Unless sooner paid, by reason of acceleration or
otherwise, the entire unpaid principal balance of the Notes, together with
interest accrued thereon, shall be due and payable on the Maturity Date. Except
as otherwise provided in paragraphs (d) and (e) below, borrowings evidenced by
the Notes shall consist of (i) for the period beginning on the initial Closing
Date and ending on the last day of the Payment Period next following the
Completion Date, one or more (but not greater than four) of the following: Base
Rate Notes, Eurodollar Notes and LIBOR Notes (the LIBOR Notes being available
only for a full Payment Period of three months), and (ii) thereafter,
consecutive LIBOR Notes having Payment Periods of three months.
(b) Interest. So long as no Event of Default has occurred and is
--------
continuing, the Lessor shall pay interest to the Lenders on the outstanding and
unpaid principal amount of the Notes at a rate per annum as follows:
(i) For each LIBOR Series A Note at a rate equal to the LIBOR Rate
plus 0.50% per annum for the period through December 31, 1999 and the LIBOR Rate
plus 0.80% thereafter; and for each LIBOR Series B Note at a rate equal to the
LIBOR Rate plus 0.75% per annum for the period through December 31, 1999 and the
LIBOR Rate plus 1.00% per annum thereafter;
(ii) For each Eurodollar Series A Note, at a rate equal to the
Eurodollar Rate plus 0.50% per annum and for each Eurodollar Series B Note, at a
rate equal to the Eurodollar Rate plus 0.75% per annum; and
(iii) For a Base Rate Note, whether a Series A Note or a Series B
Note, at a rate equal to the Base Rate.
Interest on all Notes shall be paid on the last day of each Payment
Period by wire transfer of federal funds or other immediately available funds to
the Agent at the times and in the same manner as set forth under Section 2.02(c)
hereof in respect of payments of principal. In computing interest on any Note,
the first date of the Payment Period shall be included and the date of payment
shall be excluded. Except in the case of an Event of Default, any amounts under
the Notes not paid when due shall bear additional interest at the Late Payment
Rate for the period for which the same shall be overdue. Upon the occurrence and
during the continuance of an Event of Default, the Lessor shall pay interest on
the
2
outstanding and unpaid principal of the Notes and on all overdue payments of
interest on such Notes at the Late Payment Rate. Payments of interest at the
Late Payment Rate are due and payable on demand.
(c) Method of Payment. The Lessor shall make each payment of
-----------------
principal under this Loan Agreement not later than 11 A.M., New York City time,
on the day when due to the Agent by wire transfer of federal funds or other
immediately available funds, identifying each payment in such manner and payable
to such account of Agent as provided on the signature pages of the Participation
Agreement. The Agent will promptly thereafter distribute to each registered
holder of Notes its ratable share of each such payment received by the Agent for
the account of such holders at such place as has been provided to Agent in
writing, to be applied with and subject to the terms of this Loan Agreement,
including, without limitation, Section 2.07 hereof. Unless the Agent shall have
received notice from the Lessor prior to the date on which any payment is due
from the Lessor to one or more of the holders of Notes hereunder that the Lessor
will not make such payment in full, the Agent may assume that the Lessor has
made such payment in full to the Agent on such date and distributed to each
holder of Notes on such due date an amount equal to the amount then due such
holder of Notes from the Lessor. If and to the extent that the Lessor shall not
have so made such payment, each holder of Notes shall repay to the Agent
forthwith on demand such amount distributed to such holder of Notes together
with interest thereon, for each day from the date such amount is distributed to
such holder of Notes until the date such holder of Notes pays such amount to the
Agent, at the Federal Funds Rate.
(d) Illegality. Notwithstanding any other provision in this Loan
----------
Agreement, if on any date on which the LIBOR Rate or Eurodollar Rate would
otherwise be set, any Lender determines that any applicable law, rule, or
regulation, or any change therein, or any change in the interpretation or
administration thereof by, or any guideline of, any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank, or comparable agency shall make it unlawful or impracticable for
any Lender to maintain or fund its respective LIBOR Notes or Eurodollar Notes in
good faith, then upon notice of such event to the Lessor by such Lender, as the
case may be, the affected Notes held by Lender shall thereafter consist of, and
shall be converted into Base Rate Notes either (i) on the last day of the then-
current Payment Period applicable to such LIBOR Notes or Eurodollar Notes if
such Lender may lawfully continue to maintain and fund such LIBOR Notes or
Eurodollar Notes to such day or (ii) immediately if such Lender shall determine
it may not lawfully continue to maintain and fund such LIBOR Notes or Eurodollar
Notes to such day, and shall remain Base Rate Notes until such time that such
Lender notifies the Lessor that the circumstances giving rise to such conversion
no longer exist.
(e) Disaster. Notwithstanding any other provision of this Agreement,
--------
if on any date on which the LIBOR Rate or Eurodollar Rate would otherwise be
set, the Agent (in the case of clauses (i), or (ii) below) or any Lender,
including any subsequent holder of a Series A Note, (in the case of clause (iii)
below) shall have determined in good faith (which determination shall be
conclusive) that (i) adequate and reasonable means do not exist for
3
ascertaining the LIBOR Rate or Eurodollar Rate, (ii) a contingency has occurred
which materially and adversely affects the interbank Eurodollar market, or (iii)
the effective cost to lenders of funding loans from funds obtained in the London
interbank market shall exceed the LIBOR Rate or Eurodollar Rate; then, and in
any such event, the Agent or such Lender, as the case may be, may notify the
Lessor of such determination. Upon such date as shall be specified in such
notice (which shall not be earlier than the date such notice is given) the
affected Notes shall be converted to Base Rate Notes on the last day of the
then-current Payment Period applicable thereto until such time that the Agent or
Lender, as the case may be, notifies the Lessor that the circumstances giving
rise to such conversion no longer exist.
(f) Increased Cost. The Lessor shall pay to the Lenders from time to
--------------
time such amounts as any Lender may determine to be necessary to compensate such
Lender for any costs incurred by such Lender which such Lender determines are
attributable to its funding or maintaining the Notes held by it hereunder, or
any reduction in any amount receivable by such Lender under this Loan Agreement
in respect of any Note (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any change
after the date of this Loan Agreement in U.S. federal, state, municipal, or
foreign laws or regulations (including Regulation D), or the adoption or making
after such date of any interpretations, directives, or requirements applying to
a any U.S. federal, state, municipal, or any foreign laws or regulations
(whether or not having the force of law) by any court or governmental or
monetary authority charged with the interpretation or administration thereof
("Regulatory Change"), which: (i) imposes or modifies any reserve, special
deposit, compulsory loan, or similar requirements relating to any extensions of
credit or commitments to extend credit or other assets of (funded or
contingent), or any deposits with or the liabilities of, such Lender (including
any of such liabilities or any deposits referred to in the definition of LIBOR
Rate or Eurodollar Rate, as applicable); or (ii) imposes any other condition
affecting this Loan Agreement or the extension of credit hereunder. Each Lender
will notify the Lessor of any event occurring after the date of this Loan
Agreement which will entitle such Lender to compensation pursuant to this
paragraph as promptly as practicable after it obtains knowledge thereof and
determines to request such compensation. Determinations by such Lender for
purposes of this paragraph of the effect of any Regulatory Change on its costs
of funding or maintaining the Notes or on amounts receivable by it in respect of
Notes, and of the additional amounts required to compensate such Lender in
respect of any Additional Costs, shall be conclusive, provided that such
determinations are made on a reasonable basis.
(g) Capital. In the event any Lender determines that (i) the adoption
-------
of any applicable law, rule or regulation regarding capital adequacy, or any
change therein, (ii) compliance with any interpretation by any judicial,
administrative, or other governmental or central bank or comparable agency
charged with the interpretation or administration of any such law, rule or
regulation or (iii) compliance by such Lender with any guideline or request from
any such central bank, government authority or comparable agency (whether or not
having the force of law) has or would have the effect of requiring an increase
in the amount of capital required or expected to be maintained by such Lender,
or any person controlling such Lender, and such Lender determines (taking into
consideration such Lender's policies with respect to capital adequacy) that such
increase is based upon its obligations hereunder, and other similar obligations,
the Lessor shall pay to such Lender such additional amount as
4
shall be certified by such Lender to be the amount allocable to such Lender's
obligations to the Lessor hereunder. The Lender will notify the Lessor of any
event occurring after the date of this Loan Agreement that will entitle such
Lender to compensation pursuant to this paragraph as promptly as practicable
after it obtains knowledge thereof and determines to request such compensation.
Determinations by such Lender for purposes of this paragraph of the effect of
any increase in the amount of capital required to be maintained by such Lender
or any person controlling the Lender, and of the amount allocable to such
Lender's obligations to the Lessor hereunder shall be conclusive, provided that
such determinations are made on a reasonable basis.
(h) Funding Loss Indemnification. The Lessor shall pay to the Agent,
----------------------------
upon the request of the Agent, such amount or amounts as shall be sufficient (in
the reasonable opinion of the Agent) to compensate it for any loss, cost, or
expense incurred as a result of any payment of a LIBOR Note or Eurodollar Note
on a date other than the last day of the Payment Period for such Note including,
but not limited to, acceleration of the Notes by the Agent hereunder.
2.03 Characteristics of Series A Notes and the Series B Notes.
--------------------------------------------------------
(a) The Series A Notes shall be in the stated aggregate principal
amount of $25,284,000.00 (which shall represent the amount of the maximum
commitment of the Series A Lenders), shall be in registered form, in
substantially the form set forth in Annex A hereto, with blanks appropriately
filled in, shall bear interest at such rate, be payable as to principal and
interest on such date or dates, and shall contain such other terms and
provisions as shall be set forth herein and in the form set forth in Annex A.
The unpaid principal balance of the Series A Notes shall be repaid on the
Maturity Date.
(b) The Series B Notes shall be in the initial aggregate principal
amount of $3,816,000.00 (which shall represent the amount of the maximum
commitment of the Series B Lenders), shall be in registered form in
substantially the form set forth in Annex B hereto, with blanks appropriately
filled in, and shall bear interest at such rate, be payable as to principal and
interest on such date or dates, and shall contain such other terms and
provisions as shall be set forth herein. The unpaid principal balance of the
Series B Notes shall be repaid on the Maturity Date.
2.04 Prepayment of Notes. The Lessor shall not be permitted to prepay
-------------------
the Notes except as set forth below.
(a) Mandatory Prepayment on Termination of Lease Agreement. Upon the
------------------------------------------------------
sale of the Leased Premises pursuant to Section 15(a) or 16 of the Lease
Agreement, the Lessor shall on the last day of the Lease Term under the Lease
Agreement prepay the Notes in whole in an amount equal to the unpaid principal
amount thereof, together with all interest accrued thereon and any other amounts
due and payable to the Lenders under the Loan Agreement, and no amounts
(including sales proceeds) shall be distributed to the Equity Participant until
all amounts due and owing under the Notes have been paid in full.
5
(b) Mandatory Prepayment Upon Event of Loss or Certain Purchases of
---------------------------------------------------------------
Leased Premises. Upon the occurrence of an Event of Loss with respect to some
- ---------------
or all of the Leased Premises for which payment of Termination Value is due
under Section 14(b) of the Lease Agreement or upon the purchase of any Leased
Premises pursuant to Sections 15(a) and 15(c) of the Lease Agreement or pursuant
to Section 4.10(b) of the Agency Agreement, the Lessor shall, on the next date
for which an installment of principal is due on the Notes, prepay a principal
amount of Notes, together with interest accrued thereon, equal to 97% of the
amount of the payment of Termination Value in respect of such Event of Loss or
purchase, as the case may be, and any other amounts due and payable to the
Lenders under the Loan Agreement, and no amounts (including payments of
Termination Value) shall be distributed to the Equity Participant until all
amounts due and owing under the Notes have been paid in full.
(c) Notice. Upon receipt by the Agent of notice from the Lessor or
------
the Lessee of an event which shall result in a prepayment of the Notes,
specifying the principal amount of Notes to be prepaid, such principal amount of
Notes, together with accrued interest thereo notice which in any event shall be
the last day of a Payment Period. Such notice shall be given to Agent no later
than five (5) London Business Days prior to the date of the payment specified.
In the event of any partial prepayment of the principal amount of any Note
pursuant to this Loan Agreement, the amount of each payment of such Note
becoming due, with any other amounts set forth in Section 2.04(d), after
application of such prepayment shall be adjusted by an appropriate amendment to
the payment schedules attached to each Note so that the principal paid on each
date for an installment of principal shall bear the same proportion to the
original amount payable on such date as the total unpaid balance bears to the
original balance unpaid on such date but for such prepayment and that, upon the
due payment of all payments thereafter, the entire unpaid principal amount of
and interest on such Note shall have been paid in full.
(d) Payment of Certain Sums. In each case under this Section 2.04, if
-----------------------
the Lessor makes a prepayment, the Lenders shall be reimbursed on the date
specified in Section 2.04(c) or upon demand for any resulting loss or expense
incurred by such Lenders including, without limitation, any loss incurred in
obtaining, liquidating or employing deposits from third parties, but excluding
loss of margin for the period after any such prepayment as such Lender shall
have determined and notified the Lessor, which determination shall be conclusive
provided it is made on a reasonable basis.
2.05 Register, Transfer, and Exchange of Notes.
-----------------------------------------
(a) Register. The Lessor shall maintain a register for the purpose of
--------
registration, and registration of transfer and exchange, of Notes, in which
shall be entered the names and addresses of the holders of such Notes and
particulars of the Notes held by them, respectively. The Lessor and Agent may
deem and treat the registered holder of any Note as the absolute owner of such
Note for the purpose of receiving payment of all amounts payable with respect to
such Note and for all other purposes.
6
(b) Transfer; Exchange. Subject to the restrictions on assignability
------------------
of Notes contained in the Participation Agreement, a holder of any Note
intending to transfer or exchange any Note may deliver such Note to Agent for
prompt presentment to the Lessor duly endorsed for transfer by, or accompanied
by a written instrument of transfer duly executed by, the registered holder of
such Note, together with the written request of such registered holder and
evidence satisfactory to the Agent that such transfer complies with the
applicable provisions of the Participation Agreement, for the issuance of a new
Note or Notes, specifying the denomination or denominations of the same, the
name and address of the new registered holder or holders, and the information
required in order that the Agent may make wire transfer of payments on such
Notes to or for the account of such new holder or holders. Promptly upon such
presentation, the Lessor shall execute, authenticate and deliver such new Note
or Notes, in the principal amount equal to the unpaid principal amount or
amounts of such Note or Notes so surrendered, having the same terms and dated
the same date as the Notes so surrendered, in such denomination or denominations
and registered in the name or names of the transferee specified in the written
request. The Lessor shall make a notation on each transferred or exchanged Note
of the amount of all payments of principal and interest theretofore made, or the
r exchanged. Prompt notice of the foregoing shall be delivered by the Lessor to
Agent. The holder of the transferred or exchanged Note shall, at the time such
transfer or exchange, pay the Agent an administrative fee of $3,000 for each
such transfer or exchange.
(c) Replacement. If any Note shall be destroyed, mutilated, lost, or
-----------
stolen, the Lessor shall, upon the written request of the registered holder of
such Note, execute and deliver in replacement thereof a new Note, payable in the
same original principal amount and dated the same date as the Note so destroyed,
mutilated, lost, or stolen. The Lessor may make a notation on each new Note of
the amount of all payments of principal and interest theretofore made, or the
date to which such payments have been made, on the Note so destroyed, mutilated,
lost or stolen. Prompt notice of the foregoing shall be delivered by the Lessor
to the Agent. If the Note being replaced has been mutilated, such Note shall be
delivered to the Lessor and shall be cancelled by it. If the Note being
replaced has been destroyed, lost, or stolen, the registered holder of such Note
shall furnish to the Lessor such indemnity agreement or bond as shall be
reasonably satisfactory to it together with evidence satisfactory to the Lessor
of the destruction, loss or theft of such Note and of the ownership thereof. If
the registered holder of such destroyed, lost, or stolen Note is a party to the
Participation Agreement or an Affiliate of any such Person, the written
statement of such party shall be sufficient proof of such destruction, loss or
theft and an indemnity agreement of such party signed by a duly authorized
officer thereof delivered to the Lessor shall be sufficient security and
indemnity.
2.06 Application of Payments Prior to an Event of Default. Prior to
----------------------------------------------------
the occurrence of an Event of Default described in Section 5.01, the Agent shall
apply all Basic Rent, Supplemental Rent (other than Supplemental Rent payable to
the Agent or any Lender for reimbursement for its own account for expenses or
indemnities under Section 2.02(f), (g) or (h) hereof or payable under the Lease
Agreement or the Participation Agreement or pursuant to any insurance policies
maintained under Section 10 of the Lease Agreement) and payments of Termination
Value under the Lease Agreement to the payment of principal and interest on the
Notes ratably in accordance with the amount due thereon without priority of
7
any Notes or Series of Notes over any other Notes or Series of Notes, except
that upon a sale of the Leased Premises to a third party pursuant to Section 16
of the Lease Agreement, or the purchase by the Lessee of the Leased Premises
pursuant to Section 15 of the Lease Agreement and so long as no Event of Default
or Unmatured Default shall have occurred and be continuing, (x) the net amount
pursuant to Section 16(b) or (y) the purchase price under Section 15(a) and
Section 15(c) of the Lease Agreement, as the case may be, shall be first applied
to pay the principal of, and accrued interest on, the Series A Notes and, only
upon payment in full of all outstanding Series A Notes, to pay the principal of,
and interest on, the Series B Notes; provided, however, the Principal Component
--------
of any payment of Basic Rent shall be applied to the payment of principal on the
Series A Notes only.
2.07 Amendments of Lease Agreement; the Lessor Actions. The Lessor
-------------------------------------------------
shall be entitled to receive, and the Agent agrees to send to the Lessor, copies
of all notices, demands, consents, approvals and waivers which may, from time to
time, be given or granted by the Agent to the Lessee pursuant to the provisions
of the Lease Agreement. Prior to the time that the Notes and other amount due
hereunder have been discharged, Agent and the Lenders shall be entitled to
receive, and the Lessor agrees to send to the Agent and the Lenders, copies of
all notices, demands, consents, approvals and waivers which may, from time to
time, be given or granted by the Lessor to the Lessee or received by the Lessor
from the Lessee pursuant to the provisions of the Lease Agreement provided, that
--------
without the prior consent of each Lender and the Agent, the Lessor shall not:
(a) modify or waive any provision of any Transaction Document
requiring the Required Lender's Consent or release any collateral (except
as otherwise specifically provided in any Transaction Document);
(b) reduce the amount or change the time of payment of any amount of
principal owing or interest owing or payable on any Note;
(c) modify, amend, waive or supplement any of the provisions of
Sections 15, 16, 19 and 20 of the Lease;
(d) reduce, modify, amend or waive any indemnities in favor of any
Lender or Agent;
(e) reduce the amount or change the time of payment of Rent,
Termination Value or Supplemental Rent;
(f) consent to any assignment of the Lease releasing the Lessee from
its obligations to pay Rent, Termination Value or Supplemental Rent or
changing the absolute and unconditional character of such obligations; or
(g) permit the creation of any Lien on the Trust Estate or any part
thereof except as contemplated by the Transaction Documents, or deprive any
Lender of the benefit of the security interest and lien secured by the
Trust Estate.
8
2.08 Investment of Funds. The Agent shall hold all moneys received by
-------------------
it hereunder as to which no immediate application thereof is provided, and shall
invest such moneys in U.S. Treasury securities having maturities of no greater
than one year or in the commercial paper of any issuer rated in the highest
rating category by both Moody's Investors Service, Inc. and Standard & Poor's
Ratings Group. The earnings from any such investments, less the Agent's
expenses incurred in making such investments and any losses therefrom, shall be
for the account of the Person or Persons ultimately entitled to receive such
moneys.
9
ARTICLE III
-----------
Covenants of the Lessor
-----------------------
The Lessor hereby covenants and agrees as follows:
(a) Payment of Principal and Interest. The Lessor shall duly and
---------------------------------
punctually pay (or cause to be paid) to Agent the principal of and interest on
the Notes in accordance with the terms thereof and this Loan Agreement when such
payments shall become due, including, but not limited to, mandatory prepayments
hereunder;
(b) Liens. The Trust Estate shall be and shall remain free and clear
-----
of the Lessor Liens and the Lessor shall take such action as may be necessary to
discharge any Lessor Liens;
(c) Lease and Other Obligations. The Lessor shall faithfully abide
----------------------------
by, perform and discharge each and every obligation, covenant and agreement that
the Lease Agreement and the Participation Agreement provide are to be performed
by the Lessor; the Lessor shall upon the prior written request of the Agent, at
the expense of the Lenders to the extent not paid or reimbursed by the Lessee,
enforce any or all of its rights as the Lessor under the Lease Agreement and the
Participation Agreement; without the Required Lenders' Consent, the Lessor shall
not anticipate the rents under the Lease Agreement or waive, excuse, condone,
forgive or in any manner release or discharge the Lessee thereunder of or from
the obligations, covenants, conditions and agreements to be performed by the
Lessee that are intended to satisfy the Lessor obligations or to preserve and
protect the interest of Lenders in the Lease Agreement and the Leased Premises,
including, without limitation, the obligation to make payments in the manner and
at the time and place specified in the Lease Agreement, or enter into any
agreement or take any action the result of which would be to amend, modify or
terminate the Lease Agreement or the obligations of the Lessee thereunder;
(d) Transfers. The Lessor shall not sell, assign or transfer its
---------
rights under this Loan Agreement or in or to the Trust Estate, except as may be
permitted by the express provisions of Article V of the Participation Agreement;
(e) Lease Termination Remedies. Unless and until the Notes and all
--------------------------
other obligations of the Lease hereunder have been discharged, the Lessor,
without the consent of each of the Lenders, shall not terminate the Lease
Agreement, or otherwise exercise the remedies available under the Lease
Agreement against the Lessee or the Leased Premises; and
(f) Defaults. The Lessor shall promptly notify the Lenders of any
--------
Event of Default hereunder or under the Lease Agreement of which the Lessor
shall have knowledge.
10
ARTICLE IV
----------
Limitation of Liability
-----------------------
Notwithstanding anything in this Loan Agreement or any Mortgage and
Assignment Agreement to the contrary, the liability of the Lessor for all
payments to be made under and pursuant to the Notes, hereunder and thereunder
and the performance of all other obligations hereunder and under any other
Transaction Document shall not exceed an amount equal to, and shall be payable
only out of, the Income and Proceeds from the Trust Estate. As used herein the
term "Income and Proceeds from the Trust Estate shall mean:
(i) if an Event of Default shall have occurred and while it shall be
continuing so much of the following amounts as are indefeasibly received by
the Lessor or Agent or Lenders as assignee of the Lessor at any time after
the occurrence of such Event of Default and during the continuance thereof:
(A) all payments and any other sums due and to become due under the Lease
Agreement except Excluded Amounts, and (B) any and all other payments or
proceeds received pursuant to the Lease Agreement or for or with respect to
the Trust Estate as the result of the sale, lease or other disposition
thereof, after deducting all costs and expenses of such sale, lease or
other disposition; and
(ii) at any other time only that portion of the amounts referred to in
the foregoing clause (i) or otherwise payable to the Lessor pursuant to the
Lease Agreement as are indefeasibly received by the Lessor, the Agent or
the Lenders as assignee of the Lessor and as shall equal the payments
specified in clause (a) of Article III hereof due and payable by the Lessor
on the date such amounts so received were required to be paid pursuant to
the Lease Agreement or as shall equal any other payments (including
payments in respect of loss or destruction of the Leased Premises and early
termination of the Lease Agreement) then due and payable under this Loan
Agreement.
The Lessor shall not be liable for any deficiency arising out of the
sale by the Lessor of all or any portion the Leased Premises pursuant to the
Lease Agreement and the Lenders agree to look only to the Trust Estate and the
rights of the Lessor against the Lessee under the Lease Agreement and the
Participation Agreement for the amount of such deficiency. Each Lender agrees
that if it obtains a judgment against the Lessor for an amount in excess of the
amounts payable by the Lessor pursuant to the limitations set forth in this
Article IV, it will, accordingly, limit its execution of such judgment to such
amount and it will not bring suit against the Lessor for any sums in addition to
the amounts payable by the Lessor pursuant to said limitations (or obtain a
judgment, order or decree against the Lessor for any relief other than the
payment of money) except as may be required by applicable rules of procedure to
enforce against the Trust Estate and the Lessee (rather than against the Lessor
personally), by appropriate proceedings against obligee at law or in equity or
otherwise, the obligation to make the payments due to such Lender under the
Notes and this Loan Agreement. Nothing contained herein limiting the liability
of the Lessor shall derogate from the right of the Agent on behalf of the
Lenders to proceed against the Trust Estate or the Lessee (to the extent of the
Lessor's rights against the Lessee under the Lease
11
Agreement and the Participation Agreement) as provided for herein or in the
Mortgage and Assignment Agreements for the full unpaid principal amount of the
Notes and interest thereon, or to proceed against the Lessor for damages and
exercise other remedies for breach of the covenants of this Loan Agreement
(subject to the aforesaid limitations) or the inaccuracy of the representations
and warranties of the Lessor contained herein or in the Participation Agreement.
ARTICLE V
---------
Events of Default; Remedies
---------------------------
5.01 Events of Default. If any of the following events (each such
-----------------
event being hereinafter referred to as an "Event of Default") shall have
occurred (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary) and be continuing:
(a) failure to pay principal or interest or make any mandatory
prepayment of principal on the Notes when due (except to the extent
attributable to any failure of Agent to pay any amount due to holders of
Series A Notes on account of interest pursuant to Section 2.02(c) hereof)
and such failure shall continue unremedied for three (3) Business Days; or
(b) an "Event of Default" under the Lease Agreement shall have
occurred and be continuing; or
(c) the Lessor shall become insolvent or bankrupt or make an
assignment for the benefit of creditors or consent to the appointment of a
trustee or receiver; or a trustee or a receiver shall be appointed for the
Lessor or for a substantial part of the Lessor's property without the
Lessor's consent and shall not be dismissed within a period of ninety (90)
days; or bankruptcy, reorganization or insolvency proceedings shall be
instituted by or against the Lessor and, if instituted against the Lessor,
shall not be dismissed for a period of thirty (30) days; or
(d) the Lessor shall fail to observe any covenant contained in clause
(c) or (d) of Article III hereof and such failure shall continue for a
period of ten days after written notice thereof;
then, the Agent, upon receipt of the Required Lenders' Consent shall, by notice
to the Lessor and the Lessee, declare the unpaid principal amount of the Notes,
interest accrued thereon and all other amounts owing by the Lessor hereunder,
under the Notes or under any other Transaction Document to be immediately due
and payable without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived, and an action therefor shall
immediately accrue; provided, however, that in the event of an actual or deemed
--------
entry of an order for relief with respect to the Lessor under the Federal
Bankruptcy Code, (x) the obligation of any Lender to make loans hereunder shall
automatically terminate
12
and (y) the Notes, all interest thereon and all other amounts payable hereunder
shall automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Lessor; the Agent shall, upon receipt of the Required Lenders' Consent, be
entitled and empowered to institute such action or proceedings at law or in
equity for the collection of any amounts due and unpaid as shall be consistent
with such Required Lenders' Consent, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Lessor and collect in the manner provided by law out of
the Trust Estate, wherever situated, the moneys adjudged or decreed to be
payable (subject to the provisions of Article IV hereof).
5.02 Specific Remedies. Upon the occurrence and during the
-----------------
continuance of an Event of Default, the Agent may, and upon receipt of the
Required Lenders' Consent and indemnification reasonably satisfactory to the
Agent, shall:
(i) take any and all action available to a creditor to recover from
the Lessor (subject to the limited recourse provisions contained herein and
in the Notes) all amounts then due and payable by the Lessor under the
Notes or otherwise to each Lender; or
(ii) exercise any and all of the rights remedies available to it
against the Trust Estate under the Mortgage and Assignment Agreements; or
(iii) subject to the rights of the Lessee under the Lease Agreement,
exercise, as assignee of the Lessor any and all of the rights and remedies
of the Lessor under the Lease Agreement;
provided, however, that if the only Event of Default which has occurred and is
- -------- -------
continuing hereunder is an Event of Default described in Section 5.01(b) hereof
or any other Event of Default which has resulted from an Event of Default
described in Section 5.01(b) hereof (such Events of Default called "the Lessee
Defaults"), the Agent shall be entitled to exercise a right or remedy hereunder
only if it concurrently pursues, to the extent it has not already done so and is
then entitled to do so hereunder and under the Lease Agreement and is not then
stayed against the Lessee or otherwise prevented from doing so by operation of
law, one or more remedies available to the Agent as assignee of the Lessor's
interest in the Lease Agreement.
Written notice shall be given by the Agent to the Lessor of any
election by the Agent to retain the Trust Estate.
5.03 Application of Proceeds. If an Event of Default shall have
-----------------------
occurred and be continuing and the Agent shall exercise any of the powers
conferred upon it by Sections 5.01 and 5.02 hereof, all payments made by the
Lessor to the Agent hereunder after such Event of Default, and the proceeds of
any judgment collected hereunder from the Lessor by the Agent, and the proceeds
of every sale by the Agent of any of the Trust Estate, together with any other
sums which may then be held or obtained by the Agent or the Lenders under any of
the provisions hereof or any other Transaction Document, shall be
13
applied by the Agent to the payment in the following order of priority: (i) of
all proper charges, expenses (including without limitation all reasonable
attorney's fees) or advances made or incurred by the Lenders or the Agent or, in
the case of an Lessee Default, the Lessor in the exercise of the Lenders', the
Agent's or the Lessor's remedies hereunder or under any other Transaction
Document, (ii) of the interest then due on the Notes, ratably and without
priority of any Notes or any Series of Notes over any other Notes or Series of
Notes, with interest on overdue interest at the Late Payment Rate to the extent
legally enforceable, and (iii) of the principal of all outstanding Notes,
without priority as aforesaid, with interest thereon at the Late Payment Rate to
the extent legally enforceable from the first date on which such principal was
due and not paid, whether such Notes shall have then matured by their terms or
not.
If after applying as aforesaid the sums of money realized by the Agent
on behalf of Lenders there shall remain a surplus in the possession of the
Agent, such surplus shall be paid to the Lessor.
5.04 Rescission. If, at any time after the outstanding principal
----------
amount of the Notes shall have become due and payable by acceleration pursuant
to Section 5.01 hereof, no judgment for any amount so becoming due shall have
been entered and the Collateral has not been sold or otherwise disposed of in
the exercise of remedies hereunder, (i) all amounts of principal and interest on
the Notes which have become due otherwise than pursuant to Section 5.01 hereof,
together with interest on all such overdue principal and, to the extent
permitted by law, interest at the Late Payment Rate and an amount sufficient to
cover all costs and expenses of collection of Agent and the Lenders shall have
been paid in full and (ii) every other Event of Default shall have been cured or
waived, then the Agent may, with the Required Lenders' Consent, and by notice to
the Lessor and the Lessee, rescind and annul such acceleration and any related
declaration of acceleration under the Lease Agreement and their related
consequences, but no such rescission and annulment shall extend to or affect any
subsequent Event of Default hereunder or under the Lease Agreement or impair any
right consequent thereon.
5.05 Rights and Remedies Cumulative; No Waiver. Each and every right,
-----------------------------------------
power and remedy herein specifically given to the Agent or any or all of the
Lenders under this Loan Agreement shall be cumulative and shall be in addition
to every other right, power and remedy herein specifically given or now or
hereafter existing at Law, in equity or by statute, and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time and as often and in such order as may be deemed
expedient by the Agent, and the exercise or the beginning of the exercise of any
power or remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any other right, power or remedy. No delay or
omission by the Agent or the Lenders in the exercise of any right, remedy or
power or in the pursuance of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part of the Lessor
or the Lessee or to be an acquiescence therein. No waiver in respect of any
Event of Default shall extend to any subsequent or other Event of Default.
5.06 Restoration of Rights and Remedies. In case the Lenders shall
----------------------------------
have directed the Agent to proceed to enforce any right, power or remedy under
this Loan
14
Agreement by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Agent or the Lenders, then and in every such case the Lessor,
the Agent and the Lenders shall be restored to their former positions and rights
hereunder with respect to the Trust Estate, and all rights, remedies, and powers
of the Agent and the Lenders shall continue as if no such proceedings had been
taken.
5.07 Compliance with Law. The foregoing provisions of this Article V
-------------------
are subject in all respects to all mandatory legal requirements at the time in
force and applicable.
ARTICLE VI
----------
Agent
-----
6.01 Appointment. The Lenders hereby appoint Credit Lyonnais New York
-----------
Branch to act as the Agent as herein specified for the Lenders hereunder. Each
of the Lenders by its execution and delivery of the Participation Agreement
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agent to take such action on
its behalf under the provisions of this Loan Agreement and any other Transaction
Document, or other instruments and agreements referred to herein or therein, and
to exercise such powers and to perform such duties hereunder and thereunder, as
are specifically delegated to or required of the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. Credit
Lyonnais New York Branch agrees to act as the Agent on behalf of the Lenders to
the extent provided in this Loan Agreement.
6.02 Delegation of Duties. The Agent may perform any of its duties
--------------------
hereunder by or through agents or employees and shall be entitled to rely on the
advice of independent counsel concerning all matters pertaining to its duties
hereunder and thereunder.
6.03 Nature of Duties; Independent Credit Investigation. The Agent
--------------------------------------------------
shall have no duties or responsibilities except those expressly set forth in
this Loan Agreement and the Participation Agreement. The duties of the Agent
shall be mechanical and administrative in nature. The Agent shall not have by
reason of this Loan Agreement or any Transaction Document a fiduciary
relationship in respect of any Lender and nothing in this Loan Agreement or any
Transaction Document, expressed or implied, is intended to or shall be so
construed as to impose upon the Agent any obligations in respect of this Loan
Agreement or any Transaction Document except as expressly set forth herein or
therein. Each Lender expressly acknowledges (i) that the Agent has not made any
representations or warranties to it and that no act by the Agent hereafter taken
shall be deemed to constitute any representation or warranty by the Agent to any
Lender; (ii) that it has made and will make its own independent investigation of
the financial condition and affairs, and its own appraisal of the
creditworthiness of the Lessor and the Lessee, in connection with this Loan
Agreement; (iii) that it has made its own independent investigation of the legal
matters relating to this Loan Agreement, the Transaction Documents and the Notes
to be issued to it hereunder; and (iv) that the Agent shall have no duty or
responsibility, either initially or on a continuing
15
basis, to provide any the Lender with any information, except for notices,
reports or other information, if any, expressly required to be furnished to the
Lenders by the Agent hereunder.
6.04 Actions in Discretion of the Agent; Required Lenders' Consent.
-------------------------------------------------------------
The Agent agrees, upon receipt of the Required Lenders' Consent and indemnity
reasonably satisfactory to it, to take any action of the type specified therein
so long as the same is not inconsistent with the other Transaction Documents.
The Agent shall take, or refrain from taking, such action hereunder in
accordance with the Required Lenders' Consents. In the absence of receipt of
the Required Lenders' Consent, the Agent shall take no action and shall not be
subject to any liability, penalty, cost or expense for such inaction. Any
action taken or failure to act pursuant to such Required Lenders' Consent shall
be binding on the Lenders and on all holders of Notes. No Lender shall have any
right of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the Required Lenders'
Consent, or in the absence of the Required Lenders' Consent, in the absolute
discretion of Agent, subject to the provisions of Section 6.05 hereof.
6.05 Exculpatory Provisions. Neither the Agent nor any of its
----------------------
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it hereunder or under the Notes or
Transaction Documents, or in connection herewith or therewith, unless caused by
its own gross negligence or willful misconduct. In performing its functions and
duties hereunder on behalf of Lenders, the Agent shall exercise the same care
which it would exercise in dealing with loans for its own account, but it shall
not (i) be responsible in any manner to any of the Lenders for the
effectiveness, enforceability, genuineness, validity or the due execution of
this Loan Agreement, the Transaction Documents or any of the Notes, or for any
recital, representation, warranty, document, certificate, report or statement
herein or therein made or furnished under or in connection with this Loan
Agreement or (ii) be under any obligation to any of the Lenders to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions hereof or thereof on the part of the Lessor, the Lessee or any other
Person, or the financial condition of the same or the existence or possible
existence of any Event of Default or Unmatured Event of Default.
6.06 Reimbursement and Indemnification. Each holder of Notes shall
---------------------------------
reimburse and indemnify the Agent to the extent not reimbursed by the Lessee
(and without limiting the obligation of the Lessee), ratably in the proportion
which the sum of the principal balance of Notes then held by such holder bears
to the sum of the then outstanding principal balance of the Series A Notes and
Series B Notes, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against the Agent, in its capacity as such, in any way relating to or
arising out of this Loan Agreement, the Transaction Documents, the Notes or any
action taken or omitted by the Agent hereunder or thereunder, provided, that no
holder shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent that the same result from the Agent's gross negligence or willful
misconduct.
16
6.07 Reliance by the Agent. The Agent shall be entitled to rely upon
---------------------
any writing, telegram, telex or teletype message, resolution, notice, consent,
certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper party or parties, and upon
opinions of counsel and other professional advisers selected by the Agent.
Subject to Section 6.05 hereof, the Agent shall be fully justified in failing or
refusing to take any action hereunder unless 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.
6.08 Individual Capacity. With respect to this Loan Agreement and the
-------------------
Series A Notes held by it, Credit Lyonnais, as Series A Lender or as Series B
Lender, shall have the same rights and powers hereunder as any other holder of a
Series A Note or Series B Note and may exercise the same as though it were not
the Agent, and the terms, "Lenders", "Series A Lender", "Series B Lender" shall,
unless the context hereof otherwise indicates, include Credit Lyonnais in its
individual capacity.
6.09 Holders of Notes. The Agent may deem and treat the payee of any
----------------
Note as the owner of such Note for all purposes hereof unless and until written
notice of the assignment or transfer thereof shall have been filed with the
Agent in accordance with Section 2.06 hereof. Any request, authority or consent
of any party who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
6.10. Successors. The Agent may resign at any time by giving
----------
written notice thereof to the Lenders. Upon any such resignation, the holders
of the Series A Notes and the Series B Notes, by execution and delivery of a
Required Lenders' Consent, shall agree upon a successor Agent. If no successor
Agent shall have been so agreed upon and appointed, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent, any holder of a Note or the Lessor may
petition (or in the absence of such petition, the Lessee may petition) a court
of competent jurisdiction to appoint a successor Agent which shall be a
commercial bank organized under the Laws of the United States of America or any
state thereof, having a combined capital and surplus of at least $250,000,000.
Upon the acceptance by a successor Agent of its appointment as Agent hereunder,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties under this Loan Agreement. After any
retiring Agent's resignation hereunder as the Agent, the provisions of this
Article VI shall inure to its benefit as to any actions taken or omitted by it
while it was the Agent under this Loan Agreement.
6.11. Distributions to the Lenders. The Agent agrees that all
----------------------------
sums paid by the Lessee to the Agent under any Transaction Document for
distribution to the holders of Notes pursuant hereto, and any other proceeds of
the Collateral or any portion thereof (i) shall, until paid to the holders of
Notes in accordance with the provisions hereof, be held by the Agent for the
benefit of the holders of Notes, and (ii) if received by the Agent prior to
17
12:00 Noon, New York City Time, shall be disbursed to holders of Notes no later
than 4:00 P.M. on the same Business Day, and if received by the Agent after
12:00 Noon, New York City Time, shall be disbursed to holders of Notes no later
than 4:00 P.M. on the next succeeding Business Day.
ARTICLE VII
-----------
Miscellaneous
-------------
7.01 Notices. Any notice required or permitted under this Loan
-------
Agreement, or by law in respect of this Loan Agreement, shall be in writing and
shall be deemed effective, when personally delivered or if sent by registered or
certified mail, three Business Days after the date of delivery to the post
office, or if sent by overnight delivery (express mail or overnight courier),
when received, or if sent by telex or telecopy, upon receipt, in each case
addressed to the Person required to receive the same at the address stated on
the signature pages of the Participation Agreement or in accordance with the
last unrevoked written direction from such Person to the other parties hereto.
7.02 Survival. All covenants, agreements, indemnities,
--------
representations, and warranties contained in this Loan Agreement, or any
document, agreement, or certificate delivered pursuant hereto shall survive the
expiration or other termination of this Loan Agreement.
7.03 Amendments and Waivers. The terms of this Loan Agreement shall
----------------------
not be waived, altered, modified, amended, supplemented, or terminated in any
manner whatsoever except by written instrument signed by the Lessor and the
Agent following receipt of the Required Lenders' Consent; provided, however,
that no such amendment shall revise or delete Sections 2.07, 2.08, 5.03 hereof
or this Section 7.03 without the prior written consent of the holders of each of
the Series A Notes and the Series B Notes respectively.
7.04 Entire Agreement. This Loan Agreement and the other agreements
----------------
and documents referred to herein constitute the final and entire expression of
the agreement of the parties with respect to the matters contemplated hereby.
7.05 Governing Law. The provisions of Section 6.06 of the
-------------
Participation Agreement are hereby incorporated herein by reference.
7.06 Non-Recourse To Certain Parties. This Loan Agreement is solely a
-------------------------------
corporate obligation and no recourse shall be had in respect of any obligation,
covenant, or agreement of this Loan Agreement, or referred to herein, against
any stockholder, incorporator, director, or officer, as such, past, present, and
future, of the parties hereto by the enforcement of any assessment or by any
legal or equitable proceeding, by virtue of statute or otherwise.
18
7.07 Invalidity of Provisions. Any provision of this Loan Agreement
------------------------
which may be 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.
7.08 Counterparts. This Loan Agreement may be executed in any number
------------
of counterparts and by the different parties hereto on separate counterparts,
all of which together shall constitute a single agreement.
7.09 Effectiveness. Although this Loan Agreement is dated as of the
-------------
date first above written for convenience, the actual dates of execution hereof
by the parties hereto are respectively the dates set forth under the signatures
hereto, and this agreement shall be effective on the latest of such dates.
7.10. Headings. Any headings or captions preceding the individual
--------
sections hereof are intended solely for the convenience of the parties and shall
not alter or vary the meaning, construction or effect of this Loan Agreement.
7.11. Holders of Notes. All representations, warranties,
----------------
covenants, and agreements contained herein shall be binding on, and shall inure
to the benefit of, the Series A Lender and the Series B Lender and any
registered transferee of the Series A Lender or the Series B Lender as holder of
a Note or Notes. Any request, notice, direction, consent, waiver or other
instrument or action by any holder of a Note or Notes shall bind the successor
and assigns of such holder.
7.12. Successors and Assigns. The provisions of this Loan
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, subject to Section 2.06 hereof and
the provisions of the Participation Agreement.
19
IN WITNESS WHEREOF the parties hereto have each caused this Agreement
to be duly executed by their respective officers thereunto duly authorized.
FLEET NATIONAL BANK,
not in its individual capacity (except as
expressly stated above) but solely as Owner
Trustee under the Trust Agreement
By /s/ E.C. Hammer
_______________
Date:
CREDIT LYONNAIS LOS ANGELES
BRANCH, as Series A Lender and
Series B Lender
By: /s/ Dianne M. Scott
--------------------
Date: June 20, 1997
BANK LEUMI LE-ISRAEL B.M.,
as Series A Lender and Series B Lender
By: /s/ Jacques Delvoy, Vice President
----------------------------------
Date:
THE FUJI BANK, LIMITED
LOS ANGELES AGENCY
as Series A Lender and Series B Lender
By: /s/ Hirotoshi Naito
-------------------
Date:
THE INDUSTRIAL BANK OF JAPAN LIMITED,
LOS ANGELES AGENCY
as Series A Lender and Series B Lender
By: /s/ Shusai Nagai, General Manager
---------------------------------
Date:
VIA BANQUE, S.A.
as Series A Lender and Series B Lender
By: /s/ Christel Prot, Sous-Directeur
---------------------------------
Date:
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent
By: /s/ David C. Fink, Vice President
---------------------------------
Date:
R-__
[FORM OF SERIES A NOTE]
THE STATED PRINCIPAL AMOUNT OF THIS NOTE REPRESENTS
THE MAXIMUM AMOUNT THEREOF PAYABLE TO THE HOLDER
HEREOF AND MAY NOT CORRESPOND TO THE ACTUAL UNPAID
PRINCIPAL BALANCE HEREOF.
THE AMOUNT OF THE UNPAID PRINCIPAL BALANCE AT ANY
TIME MAY BE OBTAINED FROM THE OWNER TRUSTEE.
FLEET NATIONAL BANK,
(as successor to Shawmut Bank Connecticut, National Association)
not in its individual capacity but solely as Owner Trustee
under Trust Agreement dated as of December 15, 1994
NON-RECOURSE SERIES A PROMISSORY NOTE DUE DECEMBER 31, 2001
New York, N.Y.
December 29, 1994
FOR VALUE RECEIVED, the undersigned, not in its individual capacity
but solely as Owner Trustee (herein in such capacity called the "Owner Trustee")
under that certain Trust Agreement dated as of December 15, 1994, between the
Equity Participant named therein and FLEET NATIONAL BANK (as successor to
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION) ("the Lessor"), hereby promises
to pay, to ________________________ or registered assigns (hereinafter together
with any other holder hereof referred to as the "Holder"), the maximum principal
amount of $____________ in lawful money of the United States and in immediately
available funds payable in installments beginning on March 31, 2001 and payable
on the last day of each Payment Period thereafter, subject to the second
paragraph hereof, as provided in the Loan Agreement and the schedule hereto,
provided however, that the last payment hereunder shall be in the amount
necessary to repay in full on December 31, 2001 the unpaid principal amount of
this Series A Note. Interest shall accrue from the date of this Series A Note
on the outstanding principal amount hereof in accordance with the Loan Agreement
and shall be payable on such dates and in such amounts as determined in
accordance with the Loan Agreement. All such payments of principal and interest
shall be made to such place or places and to such account or accounts as Holder
shall direct by written notice to the Lessor.
This Series A Note is one of the Series A Notes issued in an original
principal amount of $25,284,000 referred to in, and is entitled to the benefits
of, the Loan Agreement
27
dated as of December 15, 1994 between the Lessor, as Series A Lender and Series
B Lender, and Credit Lyonnais New York Branch as the Agent as amended from time
to time, including without limitation pursuant to the First Amendment and
Restatement thereto dated as of ______, 1997, (the "Loan Agreement") as to which
reference is hereby made for a statement of the terms, conditions and covenants
under which the indebtedness evidenced hereby was and will be made and is to be
repaid, including, among others, those related to the acceleration of the
indebtedness represented hereby upon the occurrence of an Event of Default or
the mandatory prepayment of any of the indebtedness represented hereby as
provided in the Loan Agreement. This Series A Note is not subject to prepayment
except as provided in the Loan Agreement. All capitalized terms used herein and
not defined herein shall have the respective meanings ascribed thereto in the
Loan Agreement.
This Series A Note is secured by Trust Estate as provided in the Loan
Agreement and Mortgage and Assignment Agreements.
This Series A Note is a non-recourse obligation of the Owner Trustee,
and all payments of principal and interest to be made by the Owner Trustee on
this Series A Note shall be made only from the Income and Proceeds from the
Trust Estate. The Holder hereof, by its acceptance of this Series A Note,
agrees that it will look solely to the Income and Proceeds from the Trust Estate
to the extent available for distribution to the Holder hereof and that the
Lessor shall not be personally liable to the Holder hereof for any amounts
payable under this Series A Note or, except as expressly provided in the Loan
Agreement, for any liability under the Loan Agreement or the other Transaction
Documents.
This Note is a registered Note and may be transferred only by
registration of transfer as provided in Section 2.06 of the Loan Agreement. THIS
NOTE IS ALSO SUBJECT TO ADDITIONAL TRANSFER RESTRICTIONS SET FORTH IN THE
PARTICIPATION AGREEMENT DEFINED IN THE SECOND "WHEREAS" CLAUSE OF THE LOAN
AGREEMENT.
To the extent permitted by applicable law, the Lessor waives notice,
presentment, and demand.
This Series A Note shall be governed by the laws of the State of New
York without giving effect to the principles of conflicts of law.
FLEET NATIONAL BANK,
not in its individual capacity, but solely as
Owner Trustee under the Trust Agreement
By: ________________________________________
28
SERIES A NOTE AMORTIZATION SCHEDULE/1/
Payment Date Principal Payment Percentage
------------ ----------------------------
On or before
December 31, 2000 0%
March 31, 2001 1.042%
June 30, 2001 1.042%
September 30, 2001 1.042%
December 31, 2001 remaining principal balance
- ----------------------
/1/ The principal payment for any date is the percentage set forth opposite
such date multiplied by the excess of the Outstanding Property Cost on
December 31, 2000 over the aggregate amount of any Termination Value payments
made by the Lessee after December 31, 2000.
29
R-__
[FORM OF SERIES B NOTE]
THE STATED PRINCIPAL AMOUNT OF THIS NOTE REPRESENTS
THE MAXIMUM AMOUNT THEREOF PAYABLE TO THE HOLDER
HEREOF AND MAY NOT CORRESPOND TO THE ACTUAL UNPAID
PRINCIPAL BALANCE HEREOF.
THE AMOUNT OF THE UNPAID PRINCIPAL BALANCE AT ANY
TIME MAY BE OBTAINED FROM THE OWNER TRUSTEE.
FLEET NATIONAL BANK
(as successor to SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION)
not in its individual capacity but solely as Owner Trustee
under Trust Agreement dated as of December 15, 1994
NON-RECOURSE SERIES B PROMISSORY NOTE DUE DECEMBER 31, 2001
New York, N.Y.
December 29, 1994
FOR VALUE RECEIVED, the undersigned, not in its individual capacity but
solely as Owner Trustee (herein in such capacity called the "Owner Trustee")
under that certain Trust Agreement dated as of December 15, 1994, between the
Equity Participant named therein and FLEET NATIONAL BANK (as successor to
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION ("the Lessor"), hereby promises
to pay, to ______________________ or registered assigns, (hereinafter together
with any other holder hereof referred to as the "Holder"), the maximum principal
amount of $ _________ in lawful money of the United States and in immediately
available funds payable, to the extent not previously repaid, on December 31,
2001. Interest shall accrue from the date of this Series B Note on the
outstanding principal amount hereof in accordance with the Loan Agreement and
shall be payable on such dates and in such amounts as determined in accordance
with the Loan Agreement. All such payments of principal and interest shall be
made to such place or places and to such account or accounts as Holder shall
direct by written notice to the Lessor.
This Series B Notes is one of the Series B Note originally issued in a
principal amount of $3,816,000 referred to in, and is entitled to the benefits
of, the Loan Agreement dated as of December 15, 1994 between the Lessor, the
Series A Lender and the Series B Lender referred to therein and Credit Lyonnais
New York Branch as Agent as amended from time to time, including without
limitation, pursuant to the First Amendment and Restatement thereto dated as of
_____ ___, 1997 (the "Loan Agreement") as to which reference is hereby made for
a statement of the terms, conditions and covenants under which the indebtedness
evidenced hereby was and will be made and is to be repaid, including, among
others, those related to the acceleration of the indebtedness represented hereby
upon the occurrence of an Event of Default
30
or the mandatory prepayment of any of the indebtedness represented hereby as
provided in the Loan Agreement. This Series B Note is not subject to prepayment
except as provided in the Loan Agreement. All capitalized terms used herein and
not defined herein shall have the respective meanings ascribed thereto in the
Loan Agreement.
This Series B Note is secured by the Trust Estate as provided in the Loan
Agreement and Mortgage and Assignment Agreements.
This Series B Note is a non-recourse obligation of the Owner Trustee, and
all payments of principal and interest to be made by the Owner Trustee on this
Series B Note shall be made only from the Income and Proceeds from the Trust
Estate. The Holder hereof, by its acceptance of this Series B Note, agrees that
it will look solely to the Income and Proceeds from the Trust Estate to the
extent available for distribution to the Holder hereof and that the Lessor shall
not be personally liable to the Holder hereof for any amounts payable under this
Series B Note or, except as expressly provided in the Loan Agreement, for any
liability under the Loan Agreement or the other Transaction Documents.
Under certain conditions provided for in the Loan Agreement, payments on
the Series A Notes issued pursuant to the Loan Agreement may have a priority in
right of payment over the Series B Notes.
This Note is a registered Note and may be transferred only by
registration of transfer as provided in Section 2.06 of the Loan Agreement.
THIS NOTE IS ALSO SUBJECT TO ADDITIONAL TRANSFER RESTRICTIONS SET FORTH IN THE
PARTICIPATION AGREEMENT DEFINED IN THE SECOND "WHEREAS" CLAUSE OF THE LOAN
AGREEMENT.
To the extent permitted by applicable law, the Lessor waives notice,
presentment, and demand.
This Series B Note shall be governed by the laws of the State of New York
without giving effect to the principles of conflicts of law.
FLEET NATIONAL BANK
not in its individual capacity, but solely as
Owner Trustee
By:
-------------------------------------------
31