OMNIBUS AMENDMENT
This Omnibus Amendment dated as of April 30, 2004 (this "Omnibus
Amendment"), is among (a) ICON/XXXXXXXX FACILITY LLC, a Delaware limited
liability company, as Owner Participant (capitalized terms being used as
hereinafter defined); (b) PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation,
as Loan Participant; (c) XXXXX FARGO BANK, N.A., a national banking association,
successor to First Interstate Bank of Oregon, N.A. ("First Interstate Bank"),
f/k/a First National Bank of Oregon, not in its individual capacity but solely
as Owner Trustee under the Trust Agreement; and (c) U.S. BANK NATIONAL
ASSOCIATION, f/k/a U.S. Bank Trust National Association, successor to United
States National Bank of Oregon, a national banking association, not in its
individual capacity but solely as Indenture Trustee.
First Interstate Bank previously issued 10.20% Secured Notes (the "1979
Secured Notes") pursuant to an Indenture and First Deed of Trust dated as of
September 1, 1979 (the "1979 Indenture") between First Interstate Bank and
United States National Bank of Oregon, as indenture trustee, and used the
proceeds of the sale of the 1979 Secured Notes to acquire the Equipment.
First Interstate Bank subsequently issued 7.49% Secured Notes (the "1993
Secured Notes") pursuant to an Indenture and First Deed of Trust dated as of
January 26, 0000, xxxxxxx Xxxxx Xxxxxxxxxx Xxxx xxx Xxxxxx Xxxxxx National Bank
of Oregon, as indenture trustee, and used the proceeds of the sale of the 1993
Secured Notes to pay in full the 1979 Secured Notes in accordance with the terms
of the 1979 Indenture.
Concurrent with the execution and delivery hereof, Owner Trustee will enter
into an Amended and Restated Indenture and First Deed of Trust dated as of April
30, 2004 (the "2004 Indenture") between Owner Trustee and U.S. Bank National
Association, f/k/a U.S. Bank Trust National Association, successor to United
States National Bank of Oregon, as Indenture Trustee pursuant to which Owner
Trustee will issue 3.65% Secured Notes (the "2004 Secured Notes"), to be
purchased by Principal Life Insurance Company pursuant to a Note Purchase
Agreement dated as of April 30, 2004 (the "2004 Note Agreement") among Owner
Trustee, Indenture Trustee, Owner Participant and Loan Participant. In
connection with the execution of the 2004 Note Agreement, certain amendments to
the Operative Documents (as defined in the 2004 Indenture) will be required. In
order to effect such amendments in an efficient manner, the parties hereto have
elected to execute this Omnibus Amendment. Capitalized terms used and not
otherwise defined herein shall have the respective meanings set forth in the
2004 Indenture or the Lease.
NOW THEREFORE, in consideration of the mutual agreements contained herein,
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Operative Documents.
1.01. Except where the context otherwise clearly requires, each of the
following terms is hereby amended and restated as of the date hereof in each of
the Operative Documents to read as follows:
"Indenture" shall mean the Amended and Restated Indenture and First Deed of
Trust, dated as of April 30, 2004, between Owner Trustee and Indenture Trustee,
as the same may be amended, restated, supplemented or otherwise modified from
time to time in accordance with the provisions thereof.
"Indenture Trustee" shall mean U.S. BANK NATIONAL ASSOCIATION, f/k/a U.S.
Bank Trust National Association, successor to United States National Bank of
Oregon, a national banking association, not in its individual capacity but
solely as Indenture Trustee, together with its successors and assigns.
"Loan Participant" shall mean and include Principal Life Insurance Company
and any other holder of a Secured Note, and their respective successors and
assigns.
"Note Agreement" in each of the Operative Documents shall mean and include
that certain Note Purchase Agreement dated as of April 30, 2004, by and among
ICON/XXXXXXXX Facility LLC, a Delaware limited liability company, as Owner
Participant; Principal Life Insurance Company, an Iowa corporation, as Loan
Participant; Xxxxx Fargo Bank, N.A., a national banking association, successor
to First Interstate Bank of Oregon, N.A., f/k/a First National Bank of Oregon,
not in its individual capacity but solely as Owner Trustee; and U.S. Bank
National Association, f/k/a U.S. Bank Trust National Association, successor to
United States National Bank of Oregon, a national banking association, not in
its individual capacity but solely as Indenture Trustee, as the same may be
amended, restated, supplemented or otherwise modified from time to time in
accordance with the provisions thereof.
"Owner Participant" means ICON/XXXXXXXX Facility LLC, a Delaware limited
liability company, together with its successors and assigns.
"Owner Trustee" means Xxxxx Fargo Bank, N.A., a national banking
association, successor to First Interstate Bank of Oregon, N.A., f/k/a First
National Bank of Oregon, not in its individual capacity but solely as Owner
Trustee, together with its successors and assigns.
"Secured Note" means each of the secured notes issued pursuant to the
Indenture, and any secured note issued in exchange therefor or replacement
thereof.
SECTION 2. Authority of Owner Trustee to Execute Documents and Perform
Obligations. Owner Participant hereby authorizes and directs Owner Trustee to,
and Owner Trustee hereby agrees for the benefit of Owner Participant that it
will, (a) execute and deliver the 2004 Note Agreement and this Omnibus
Amendment, as contemplated by the 2004 Note Agreement, (b) sign and deliver
amendments to Uniform Commercial Code financing and continuation statements with
respect to the security interests created by the Lease and the Indenture, if
any, and (c) exercise its rights and perform its duties under each of such
instruments as set forth herein and therein.
SECTION 3. Issuance of Secured Notes. Owner Participant hereby authorizes
and directs Owner Trustee to, and Owner Trustee agrees for the benefit of Owner
Participant and Loan Participant that it will on the Purchase Date (as defined
in the 2004 Note Agreement), and subject to the fulfillment of the conditions
set forth in Article III of the 2004 Note Agreement:
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(a) Upon the payment of the applicable purchase price by Loan Participant
to Owner Trustee on the Purchase Date pursuant to the terms of the 2004
Note Agreement, issue to Loan Participant one or more Secured Notes, all as
provided in the 2004 Note Agreement and the Indenture;
(b) apply the proceeds of the Secured Notes as provided in Section 2.4 of
the 2004 Note Agreement; and
(c) execute and deliver the agreements, documents, instruments and
certificates and perform all such other acts (i) which Owner Trustee shall
be obligated to execute, deliver or perform on the Purchase Date pursuant
to any of the Operative Documents or (ii) in accordance with written
instructions from Owner Participant, that are necessary or advisable in
connection with the transactions contemplated by the Operative Documents
and consistent therewith.
SECTION 4. Ratification. Each of the Operative Documents, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in all respects.
SECTION 5. Execution in Counterparts. This Omnibus Amendment may be
executed in one or more counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 6. Terms Subject to Applicable Law; Governing Law. All rights,
powers and remedies provided herein may be exercised only to the extent that the
exercise thereof does not violate any applicable law, and are intended to be
limited to the extent necessary so that they will not render this Omnibus
Amendment invalid or unenforceable under any applicable law. If any term of this
Omnibus Amendment or any application thereof shall be held to be invalid,
illegal or unenforceable under any applicable law, the validity of other terms
of this Omnibus Amendment or any other application of such term shall in no way
be affected thereby. Where, however, the provisions of such applicable law may
be waived, they are hereby waived by the parties hereto to the full extent
permitted by law, to the end that this Omnibus Amendment shall be a valid and
binding agreement enforceable in accordance with its terms. This Omnibus
Amendment shall be governed by the laws of the State of New York without regard
to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Omnibus Amendment
to be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
ICON/XXXXXXXX FACILITY LLC
By: ICON Cash Flow Partners L.P. Seven
ICON Cash Flow Partners L.P. Six
ICON Income Fund Eight A L.P.
Its sole members
By: ICON Capital Corp.,
each such entity's general partner
By: /s/ Xxxx x. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President
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PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
Its authorized signatory
By:
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Title:
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By:
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Title:
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IN WITNESS WHEREOF, the parties hereto have caused this Omnibus Amendment
to be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
ICON/XXXXXXXX FACILITY LLC
By: ICON Cash Flow Partners L.P. Seven
ICON Cash Flow Partners L.P. Six
ICON Income Fund Eight A L.P.
its sole members
By: ICON Capital Corp.,
each such entity's general partner
By:
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Name:
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Title:
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PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By: /s/ Xxx X. Xxxxx
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Title: XXX X. XXXXX, COUNSEL
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By: /s/ Xxxxx X. Xxxxxxx
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Title: XXXXX X. XXXXXXX, COUNSEL
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XXXXX FARGO BANK NORTHWEST, N.A.,
as Owner Trustee
By: /s/ Xxxxxxx X. Xxxxxx
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Title: XXXXXXX X. XXXXXX
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VICE PRESIDENT
U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee,
By:
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Title:
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XXXXX FARGO BANK NORTHWEST, N.A.,
as Owner Trustee
By:
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Title:
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U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee,
By: /s/ Xxxxx X. XxXxxxxx
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Title: Vice President
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