AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT AND WAIVER, dated as
of November 7, 1996 (the "Amendment"), among Sunrise Resources, Inc. (the
"Original Borrower"), Sunrise Leasing Corporation ("SLC;" and together with the
Original Borrower being sometimes hereinafter referred to collectively as the
"Borrowers" and individually as a "Borrower") and The Daiwa Bank, Limited (the
"Lender").
RECITALS:
A. The Original Borrower and the Lender are parties to that certain Loan
and Security Agreement dated as of February 7, 1995 (the "1995 Loan Agreement").
B. On or about March 31, 1995, the Original Borrower transferred to SLC, a
wholly-owned Subsidiary of the Original Borrower, a substantial portion of the
Original Borrower's assets including, without limitation, the "Loan Support
Leases" in violation of the Original Agreement. In connection therewith, SLC
agreed with the Original Borrower to assume all of the Original Borrower's
obligations under the Loan Documents but has failed to execute an assumption
agreement in form and substance satisfactory to the Lender.
C. On July 27, 1995, the Original Borrower and the Lender entered into an
Amendment No. 1 to Loan and Security Agreement and Waiver (the "First
Amendment;" the 1995 Loan Agreement as amended by the First Amendment being the
"Original Agreement") pursuant to which the Original Borrower and the Lender
agreed to amend certain provisions of the Original Agreement and the Lender
agreed to waive the "Defaults" and "Events of Default" specified therein;
provided, however that the waiver granted by the First Amendment was rendered
void, ab initio, because of the failure of certain condition subsequent set
forth in the First Amendment.
D. The Original Borrower has requested that the Lender waive all existing
"Defaults" and "Events of Default" under the Original Agreement and the Lender
has required as a condition precedent to doing so, that the Original Agreement
be amended and restated in accordance with this Agreement.
NOW, THEREFORE, the parties hereto agree to amend and restate the Original
Agreement in its entirety to read as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms when used in this Agreement (such
terms and other capitalized terms being used herein with the meanings ascribed
to them in this Article I) shall, except where the context otherwise requires,
have the following meanings (such definitions to be equally applicable to the
singular and plural forms thereof):
"Affiliate" shall include, with respect to any Person, any other Person who
directly or indirectly controls, is controlled by, or is under common control
with such party and in addition, in the case of the Borrowers, each officer,
director, or shareholder of any Borrower or any Subsidiary, and each joint
venturer and partner of any Borrower.
"Agreement" shall mean this Agreement as originally executed and as
amended, modified or supplemented from time to time.
"APT" shall mean Advanced Promotion Technologies, Inc., a Delaware
corporation, which is the debtor-in-possession in that certain reorganization
proceeding captioned In Re: Advanced Promotion Technologies, Inc. pending in the
United States Bankruptcy Court for the Southern District of Florida (the
"Bankruptcy Court") as Case No. 96-23875- RBR/Chapter 11.
"APT Loan Support Lease" shall mean the following Lease Schedules (the "APT
Lease Schedules") entered into pursuant to that certain Master Lease Agreement
between the Original Borrower and/or SLC, as lessor, and APT, as lessee, dated
as of May 22, 1992 (the "APT Master Lease") and rights of lessor under the APT
Master Lease as they relate to the APT Lease Schedules:
Schedule C dated as of November 10, 1993 Schedule D dated as of October 13,
1993 Schedule E dated as of February 23, 1994 Schedule F dated as of March 21,
1994 Schedule H dated as of August 24, 1994 Schedule I dated as of January 31,
1995.
"APT Loan Support Leased Goods" shall mean the items of property leased by
the Original Borrower and/or SLC to APT pursuant to the APT Loan Support Lease.
"Borrower(s)" shall have the meaning provided in the preamble hereto.
"Business Day" shall mean any day on which commercial banks in Minneapolis,
Minnesota and Chicago, Illinois are open for the transaction of business of the
kind contemplated by this Agreement.
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"Capital Base" shall mean the sum of the Original Borrower's consolidated
Tangible Net Worth plus Subordinated Debt.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean all property in which a Security Interest is
granted pursuant to any Loan Document.
"Controlled Account" shall mean any bank account maintained by a Borrower
with a financial institution acceptable to the Lender, provided, that such
account is subject to a collateral account agreement which is in a form
acceptable to the Lender in its sole discretion pursuant to which such financial
institution agrees: (x) to act as the agent of the Lender, and (y) upon notice
from the Lender that an Event of Default has occurred and is continuing, to
deliver to the Lender all collected funds which are in such account.
"Default" shall mean any event which if continued uncured would, with
notice or lapse of time or both, constitute an Event of Default.
"Effective Date" shall mean the day on which this Agreement becomes
effective upon the satisfaction of all of the conditions precedent specified in
Article III.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute, together with regulations thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which any Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
"Event of Default" shall mean any Event of Default described in Article
VIII.
"GAAP" shall mean generally accepted accounting principles as applied in
the preparation of the audited consolidated financial statement of the Original
Borrower referred to in Section 5.4.
"Indebtedness": Without duplication, all obligations, contingent or
otherwise, which in accordance with GAAP should be classified upon the obligor's
balance sheet as liabilities, but in any event including the following (whether
or not they should be classified as liabilities upon such balance sheet): (a)
obligations secured by any mortgage, pledge, security interest, lien, charge or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the obligation secured thereby shall have been assumed and
whether or not the obligation secured is the obligation of the owner or another
party; (b) any obligation on account of deposits or advances; (c) any obligation
for the deferred purchase price of any property or services, except trade
accounts payable, (d) any obligation as lessee under any capitalized lease; (e)
all guaranties, endorsements and other contingent obligations in respect to
Indebtedness of others; and (f) undertakings or agreements to reimburse or
indemnify issuers of letters of credit. For all purposes of this Agreement, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a joint venturer.
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"ILC Merger" shall mean the merger of The X.X. Xxxx Companies, Inc. d/b/a
International Leasing Corporation with and into the Original Borrower.
"Instruments" shall mean any negotiable instrument or certificated or
non-certificated security or any other writing which evidences a right to the
payment of money and is not itself a security agreement or lease and is of a
type which is in the ordinary course of business transferred by delivery with
any necessary endorsement or assignment.
"Lease" shall mean any lease or rental agreement relating to real or
personal property and the related payments thereunder of which any Borrower is
the lessor or an assignee of the lessor, whether now existing or hereafter
arising.
"Lender" shall have the meaning provided in the preamble hereto.
"Lessee(s)" shall mean the lessee or lessees under a Lease.
"Loan" shall mean the loan made to the Borrower, jointly and severally, by
the Lender pursuant to Section 2.1.
"Loan Document(s)" shall mean individually or collectively, as the case may
be, this Agreement, the Note and all other documents executed and delivered by
the Borrower pursuant to this Agreement, as originally executed and as amended,
modified or supplemented from time to time.
"Loan Rate" shall mean 8.90% per annum.
"Loan Support Leased Goods" shall mean the items of property leased by the
Borrower to a Lessee pursuant to a Loan Support Lease.
"Loan Support Lease" shall mean: (a) collectively, the Master Lease
Agreement (Agreement Number 1215) dated February 2, 1995 (the "Avi Casino
Lease") between SLC, as lessor, and Avi Casino Enterprises, Inc. ("Avi Casino"),
as lessee as amended by that certain First Amendment to Master Lease Agreement
dated May 1, 1996 (as corrected on May 23, 1996) together with the following
related documents; (i) Schedule A dated February 2, 1995; (ii) Purchase
Leaseback Agreement (Agreement No. 11692) dated February 16, 1995 as amended by
a First Amendment dated February 24, 1995; (iii) Acceptance Certificate No. A1
dated February 2, 1995 as amended by a First Amendment dated February 24, 1995;
(iv) Purchase Leaseback Agreement (Agreement No. 11753) dated March 27, 1995;
and (v) Acceptance Certificate No. A2 dated March 31, 1995 as amended by a First
Amendment dated as of March 27, 1995; (b) the APT Loan Support Lease; or (c) any
replacement or substitute lease for the AVI Casino Lease accepted by the Lender,
in its sole discretion; in each case as amended, modified, or supplemented in
accordance with this Agreement.
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"Loan Support Security" shall mean all guarantees, security deposits or
other security or Collateral provided by any Lessee as security for its
obligations under the Loan Support Lease.
"Material Adverse Occurrence" shall mean any occurrence of whatsoever
nature (including, without limitation, any adverse determination in any
litigation, arbitration or governmental investigation or proceeding) which
materially impairs the ability of the Borrowers (taken as a whole) to perform
their obligations under the Loan Documents.
"Maturity" of the Loan shall mean the earlier of: (i) the date upon which
the Loan is declared due and payable (or automatically becomes due and payable)
upon the occurrence of an Event of Default as provided in Article VII; or (ii)
September 1, 1999.
"Monthly Payment Date" shall mean the first day of each month.
"Note" shall mean the promissory note in the form of Exhibit A attached
hereto made by the Borrower payable to the order of the Lender to evidence the
Loan and each substitute, renewal or replacement note therefor.
"Obligations" shall mean the Loan and all other liabilities, obligations,
covenants and duties owing by any Borrower to the Lender of any kind or nature,
present or future, arising under the Loan Documents.
"Original Agreement" shall have the meaning provided in the recitals
hereto.
"Original Borrower" shall have the meaning provided in the preamble hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, established
pursuant to Subtitle A of Title IV or ERISA, and any successor thereto or to the
functions thereof.
"Permitted Lien(s)" shall mean:
(a) liens for taxes, assessments or governmental charges or levies not
yet due and payable;
(b) liens imposed by law, such as materialmen's, mechanic's,
carriers', workmen's, employees' and repairmen's liens; and
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(c) Security Interest in favor of First Bank National Association,
provided that such lien is in all respects subordinate to the Lender's
Security Interest in the Collateral;
(d) the rights of Lessees under the applicable Leases;
provided, however, that none of the liens, Security Interests or other
encumbrances listed in clauses (a), (b) or (c) above shall, in any event,
constitute a "Permitted Lien" on and after the commencement in respect thereof
of any enforcement, collection, execution, levy or foreclosure or forfeiture
proceeding, which remains unstayed or unbonded for five consecutive days.
"Person" shall mean any natural person, corporation, firm, association,
government, governmental agency or any other entity, whether acting in an
individual, fiduciary or other capacity.
"Plan" shall mean an employee benefit plan or other plan, maintained for
employees of the Borrower or of any ERISA Affiliate, and subject to Title IV of
ERISA or Section 412 of the Code.
"Primary Credit Agreement" shall mean that certain Amended and Restated
Credit Agreement dated April 1, 1996, between the Borrower and First Bank
National Association, as amended to the date of this Agreement; and any future
credit agreement pursuant to which the Borrower obtains a substitute or
replacement line of credit.
"Primary Credit Documents" shall mean any document or agreement executed by
the Borrower pursuant to or in connection with any Primary Credit Agreement.
"Proceeds" shall mean whatever is received upon the sale, exchange,
collection or other disposition of Collateral or Proceeds, including but not
limited to proceeds of insurance assigned to the Lender pursuant to Section 4.3.
"Quarterly Measurement Date" shall mean each March 31, June 30, September
30 and December 31.
"Regulatory Change" means any change after the date hereof in any (or the
adoption after the date hereof of any new) (i) federal or state law or foreign
law applying to the Lender; or (ii) regulation, interpretation, directive or
request (whether or not having the force of law) applying or in the reasonable
opinion of the Lender applicable to, the Lender of any court or governmental
authority charged with the interpretation or administration of any law referred
to in clause (i) of this definition or of any fiscal, monetary, or other
authority having jurisdiction over the Lender.
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"Related Party" shall mean any Person (other than a Subsidiary): (a) which
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Borrower, (b) which
beneficially owns or holds 5% or more of the equity interest of the Borrower, or
(c) 5% or more of the equity interest of which is beneficially owned or held by
the Borrower or a Subsidiary. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Rent" shall mean with respect to each Lease all monies due or to become
due under such Lease.
"Reportable Event" shall have the meaning given to that term in Title IV of
ERISA.
"Security" shall mean each and every guaranty, security interest, mortgage,
pledge or other security securing the payment and performance of a Loan Support
Lease, whether now or hereafter existing.
"Security Interest" shall mean any lien, pledge, mortgage, encumbrance,
charge or security interest of any kind whatsoever (including, without
limitation, the lien or retained security title of a conditional vendor) whether
arising under a security instrument or as a matter of law, judicial process or
otherwise or the agreement by any Borrower to grant any lien, security interest
or pledge, mortgage or encumber any asset.
"SLC" shall have the meaning provided in the recitals hereto.
"Subordinated Debt" shall mean Indebtedness of any Borrower which is
subordinated to the Loan on terms and conditions satisfactory to the Lender in
its sole and absolute discretion.
"Subsidiary" shall mean any Person of which or in which any Borrower and
its other Subsidiaries own directly or indirectly 50% or more of: (a) the
combined voting power of all classes of stock having general voting power under
ordinary circumstances to elect a majority of the board of directors of such
Person, if it is a corporation, (b) the capital interest or profit interest of
such Person, if it is a partnership, joint venture or similar entity, or (c) the
beneficial interest of such Person, if it is a trust, association or other
unincorporated organization.
"Tangible Net Worth" means, at any date, the sum of the common stock,
preferred stock, additional paid-in capital, and retained earnings of the
Original Borrower (excluding treasury stock) and its consolidated Subsidiaries,
less the book value of all assets of the Original Borrower and its consolidated
Subsidiaries that would be treated as intangibles under GAAP including, without
limitation, goodwill, licenses, patents, trademarks, treasury stock, unamortized
debt discount and expenses, leasehold improvements, cost of investments in
excess of net assets at the time of acquisition by the Borrower or any of its
consolidated Subsidiaries, and write-ups in the book value of the assets of the
Original Borrower or any of its consolidated Subsidiaries resulting from a
revaluation thereof.
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Other terms defined herein shall have the meaning ascribed to them herein.
1.2 Accounting Terms and Calculations. Except as may be expressly provided
to the contrary herein, all accounting terms used herein shall be interpreted
and all accounting determinations hereunder (including, without limitation,
determination of compliance with financial ratios and restrictions in Articles
VII and VIII hereof) shall be made in accordance with GAAP consistently applied.
Any reference to "consolidated" financial terms shall be deemed to refer to
those financial terms as applied to the Original Borrower and its Subsidiaries
in accordance with GAAP.
l.3 Computation of Time Periods. In this Agreement, in the computation of a
period of time from a specified date to a later specified date, unless otherwise
stated, the word "from" means "from and including" and the words "to" or "until"
each means "to but excluding."
1.4 Other Definitional Provisions. The words "hereof," "herein," and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. References to Sections, Exhibits, Schedules and like references are
to this Agreement unless otherwise expressly provided.
ARTICLE II
THE LOAN
2.1 The Loan.
(a) Making of the Loan. On the Effective Date of this Agreement, the
outstanding principal balance of the "Loan" made under the Original
Agreement in the amount of $4,464,778.55 shall be subject to the terms and
conditions of this Agreement and shall constitute the loan (the "Loan")
made to the Borrowers, jointly and severally, under this Agreement. SLC
acknowledges that, as part of the consideration for the Original Borrower's
transfer of assets to SLC, SLC agreed with the Original Borrower to assume
all of the Original Borrower's "Obligations" under the Original Agreement
and that the Lender was a third-party beneficiary of such agreement.
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(b) The Note. The Loan shall be evidenced by the Note made by the
Borrowers jointly and severally payable to the order of the Lender in a
principal amount equal to the Loan.
(c) Interest on the Loan; Scheduled Payments.
(i) Subject to the provisions of Section 2.1(c)(vi), the
Borrowers jointly and severally agree to pay interest on the
outstanding principal amount of the Loan from the date of this
Agreement until all principal and interest thereon has been paid at a
rate equal to the Loan Rate.
(ii) On each Monthly Payment Date, commencing December 1, 1996,
and continuing until Maturity, the Borrowers shall jointly and
severally make blended monthly payments of principal of and interest
on the Loan in the amount set forth in the table below for the
applicable period:
Monthly Monthly Principal
Payment Date and Interest Payment
December 1, 1996 to and including
September 1, 1998 $ 184,733.05
November 1, 1998 to and including
December 1, 1998 $ 116,889.63
January 1, 1999 to and including
March 1, 1999 $ 99,326.78
April 1, 1999 to and including
September 1, 1999 $ 39,933.53.
(iii) The entire outstanding principal amount of the Loan,
together with accrued and unpaid interest, shall be payable at
Maturity of the Loan.
(iv) Interest accrued after Maturity of the Loan shall be payable
upon demand.
(v) If the Borrowers shall fail to make scheduled payments
pursuant to Section 2.1(c)(ii) and such failure continues for a period
of ten days, then the Borrowers shall promptly jointly and severally
pay to the Lender a late payment fee of an amount equal to one and
one-half percent (1.5%) of such delinquent payment. The provisions of
this Section 2.1(c)(v) shall not apply to any payment which is due as
a result of the acceleration of the maturity of the Loan.
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(vi) Notwithstanding the provisions of Section 2.1(c)(i), after
the occurrence and during the continuance of an Event of Default, the
Loan shall bear interest at a rate equal to the Loan Rate plus one and
one-half percent (1.5%) per annum.
(vii) No provision of this Agreement or the Note shall require
the payment or permit the collection of interest in excess of the rate
permitted by applicable law.
2.2 Mandatory Prepayment. Contemporaneously with any Borrower's receipt of
any proceeds from the sale, financing, discounting or other disposition of any
Collateral, the Borrowers shall jointly and severally make a prepayment with
respect to the Loan in an amount equal to the lesser of 100% of such proceeds or
the Obligations. All prepayments pursuant to this Section 2.2 shall be applied
to the Obligations in such order of application as elected by the Lender, in its
sole discretion, but any application to the outstanding principal balance of the
Loan shall be applied to the installments of principal in the inverse order of
the maturity thereof.
2.3 Voluntary Prepayment.
(a) The Borrowers shall have the right, upon one Business Day's prior
written notice, to prepay the Loan in whole or in part; provided, that any
such prepayment shall be in the minimum amount of $50,000 or an integral
multiple thereof.
(b) All prepayments made pursuant to this Section 2.3 shall be applied
to the Obligations in such order of application as elected by the Lender,
in its sole discretion, but any application to the outstanding principal
balance of the Loan shall be applied to the installments of principal in
the inverse order of the maturity thereof.
2.4 Payments. Any other provision of this Agreement to the contrary
notwithstanding, all payments of interest on and principal of the Loan and fees
due under this Agreement shall be made by the Borrowers without setoff or
counterclaim in immediately available funds to the Lender at:
The Sumitomo Bank, Ltd.
ABA Number 000000000
for credit account of The Daiwa Bank, Ltd.
Tokyo A/C Number 010021413
Reference: Sunrise Resources
by not later than 2:00 p.m. (Chicago time) on the date due. Funds received after
such time shall be deemed to have been received on the next Business Day.
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2.5 Funding Losses. If, at the time of any prepayment pursuant to Section
2.2 or 2.3, the Interest Differential is greater than zero, the Borrowers shall
jointly and severally pay to the Lender a prepayment premium equal to the
present value (determined in accordance with standard financial practice) of the
product of the Interest Differential times the amount prepaid times the Average
Maturity Period. The amount of the prepayment premium shall be calculated as
follows. The amount prepaid shall be multiplied by (a) the Interest
Differential, times (b) a fraction, the numerator of which is the number of days
in the Average Maturity Period and the denominator of which is 360. The
resulting product shall then be divided by the number of whole months (using a
thirty-day month) in the Average Maturity Period, yielding a quotient (the
"Quotient"). The amount of the prepayment premium shall be the present value
(determined in accordance with standard financial practice) on the date of
prepayment (using the Loan Rate as the discount factor) of a stream of equal
monthly payment in number equal to the number of whole months (using a
thirty-day month) in the Average Maturity Period, with the amount of each
hypothetical monthly payment equal to the Quotient and with the first payment
payable thirty days after the date of prepayment.
For purposes of this Agreement, the following terms shall have the
following meanings:
"Average Maturity Period": The weighted average time to scheduled
maturity of all Loan principal prepaid at any one time. Average Maturity
Period shall be computed by multiplying the dollar amount of each
installment of Loan principal prepaid by the number of days until the
scheduled maturity of that installment, adding together the resulting
products and dividing the resulting sum by the total dollar amount of the
principal being prepaid.
"Government Yield": As of any date of determination, the yield
(converted as necessary to the equivalent monthly compound rate) on U.S.
Treasury securities having a maturity date closest to the Average Maturity
Period, as published in The Wall Street Journal (or, if not so published,
as determined by the Lender by using the average of quotes obtained by the
Lender from three primary dealers that market U.S. Treasury securities in
the secondary market). "U.S. Treasury securities" means actively traded
U.S. Treasury bonds, bills and notes.
"Interest Differential": As of the date of any full or partial
prepayment of the Loan, the Loan Rate minus the Government Yield as of the
date of prepayment.
2.6 Substitution of Leases. Intentionally Deleted.
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2.7 Capital Adequacy. If any Regulatory Change imposes, modifies or deems
applicable any reserve, special deposit, compulsory loan, FDIC insurance or
similar requirement against assets held by, or deposits or other liabilities in
or for the account of, or advances or loans by, or other credit extended by, or
any other acquisition of funds by, the Lender or any capital adequacy, capital
maintenance or similar requirement (including a request or requirement which
affects the manner in which the Lender allocates capital resources to its
commitments and loans (including, without limitation, the commitment of the
Lender and the Loan hereunder)), and as a result thereof, in the opinion of the
Lender, the rate of return on the Lender's capital (including, but not limited
to, the Lender's cost increases resulting from such Regulatory Change) as a
consequence of its commitment and the Loan made hereunder is reduced to a level
below that which the Lender could have achieved but for such circumstances,
then, and in each such case, upon ninety (90) days notice to the Borrowers of
the nature of such Regulatory Change, the Borrowers shall jointly and severally
pay to the Lender such additional amount or amounts as shall compensate the
Lender for such reduction in rate of return for the period from and after such
ninetieth (90th) day after such notice is given. A statement of the Lender as to
any such additional amount or amounts (including calculations thereof in
reasonable detail) shall be rebuttable presumptive evidence of the matters
stated therein. In determining such amount, the Lender may use any method of
averaging and attribution that it, in its sole and absolute discretion, shall
deem applicable. The obligations of the Borrower under this Section 2.7 shall
survive the termination of this Loan and Security Agreement; provided that the
Lender shall be obligated to make any claim pursuant to this Section 2.7 within
one year after any such termination.
ARTICLE III
CONDITIONS TO LOAN
3.1 Documentation. The Effective Date of this Agreement is subject to the
condition precedent that the Lender shall have received, all of the following,
unless waived by the Lender:
(a) A favorable opinion of counsel to the Borrowers, substantially in
the form of Exhibit B attached hereto;
(b) The Note appropriately completed and duly executed by the
Borrowers;
(c) Recent UCC searches from the filing offices in all states required
by the Lender which reflect that no Person holds a Security Interest in the
Borrower's interest in the Collateral except Permitted Liens;
(d) UCC financing statements appropriately completed and duly executed
by each Borrower, including UCC-3 assignments of the relevant Borrower's
existing filings in which a Lessee is named as debtor;
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(e) A certified copy of Resolutions of the Board of Directors of each
Borrower authorizing or ratifying the execution, delivery and performance
of the transactions contemplated by the Loan Documents;
(f) A Certificate by the Secretary or any Assistant Secretary of each
Borrower certifying the names of the officers of such Borrower authorized
to sign the Loan Documents together with a sample of the true signature of
such officers;
(g) A copy of the articles of incorporation of each Borrower certified
by the Minnesota Secretary of State;
(h) A copy of the bylaws of each Borrower certified by its Secretary
or Assistant Secretary;
(i) Certificates of Good Standing for each Borrower issued by its
state of incorporation;
(j) Immediately available funds equal to the sum of:
(i) $49,110.00 to the payment of default interest on the "Loan"
under the Original Agreement, which payment shall satisfy and
discharge the Borrowers' liability for default interest on such
"Loan", notwithstanding that the actual amount of such default
interest may be greater than the amount required to be paid hereunder;
(ii) $15,000.00 as a restructuring fee; and
(iii) amounts required to be paid by the Borrowers pursuant to
Section 9.4;
(k) A subordination agreement from First Bank National Association in
form and substance satisfactory to the Lender pursuant to which First Bank
National Association subordinates its Security Interest in the Collateral
to the Lender's Security Interest therein;
(l) Originals of Loan Support Lease and related documents certified by
the Borrowers to be true, correct and complete copies thereof;
(m) Lessee estoppel letter from Avi Casino; and
(n) Such other approvals, opinions or documents as the Lender may
reasonably request.
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3.2 Additional Conditions Precedent. The Effective Date of this Agreement
shall be further subject to the satisfaction of each of the following
conditions, unless waived in writing by the Lender:
(a) The representations and warranties set forth in Article IV shall
be true and correct on the Effective Date (and after giving effect
thereto);
(b) No Default or Event of Default and no Material Adverse Occurrence
shall result from this Agreement becoming effective; and
(c) No litigation, arbitration or governmental investigation or
proceeding shall be pending, or to the knowledge of any Borrower
threatened, against any Borrower or affecting the business or operations of
any Borrower which was not disclosed by the Borrowers to the Lender
pursuant to Section 5.6, and no development shall have occurred in any
litigation, arbitration or governmental investigation or proceeding so
disclosed, which, in either event, would constitute a Material Adverse
Occurrence.
ARTICLE IV
SECURITY INTEREST; COLLECTIONS
4.1 Grant of Security Interest. As security for the payment and performance
of all Obligations, each Borrower hereby grants to the Lender a Security
Interest in all of such Borrower's now owned or hereafter acquired or arising
interest in the Loan Support Leases, the Loan Support Leased Goods, the Loan
Support Security and Proceeds thereof and, to the extent assignable, any
landlord lien waivers obtained by the Borrower in connection with any Loan
Support Leases.
4.2 Servicing and Collections. Except as otherwise provided in this Section
4.2 and in Article VIII, the Borrowers shall continue to service the Loan
Support Leases and to collect, at their own expense, all amounts due or to
become due any Borrower under the Loan Support Leases and all other Collateral.
In connection with such collections, the Borrowers may take such action as the
Borrowers may deem necessary or advisable to enforce collection of the Loan
Support Leases and such other Collateral; provided, however, that the Lender
shall have the right at any time after the occurrence and during the
continuation of an Event of Default to direct the Lessees under any Loan Support
Leases or obligors with respect to such other Collateral to make payment of all
amounts due or to become due to any Borrower thereunder directly to the Lender
and, upon such notification and at the expense of the Borrowers, to enforce
collection of any such Loan Support Leases or other Collateral, and to adjust,
settle or compromise the amount or payment thereof in the same manner and to the
same extent as any Borrower might have done, but unless and until the Lender
does so or gives the Borrowers other instructions, the Borrowers shall make all
collections. After the occurrence and during the continuation of an Event of
Default, all full and partial payments on any Collateral received by any
Borrower shall immediately be delivered by such Borrower to the Lender in their
original form, except for endorsement where necessary, to be applied in
accordance with Section 8.4; and until such payments are so delivered to the
Lender, such payments shall be held in trust by such Borrower for and as the
Lender's property and shall not be commingled with any funds of such Borrower.
The Lender shall apply all such collections toward the payment of Obligations in
such order as the Lender may elect; provided, however, that any application is
conditioned upon final payment of any check or other instrument.
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4.3 Assignment of Insurance. Each Borrower hereby assigns to the Lender, as
additional security for payment of the Obligations, any and all monies due or to
become due under, and any and all other rights of such Borrower with respect to,
any and all policies of insurance covering casualty loss to the Collateral.
After the occurrence and during the continuation of an Event of Default, the
Lender may (but need not) in its own name or in the relevant Borrower's name
execute and deliver proofs of claim, receive such monies, endorse checks and
other instruments representing such monies, and settle or litigate any claim
against the issuer of any such policy.
4.4 Release of Security Interest at End of Initial Lease Term. Promptly
after the end of the initial lease term of any Loan Support Lease, provided that
no Event of Default has occurred and is continuing, the Lender shall terminate
its Security Interest in such Loan Support Lease, the related Loan Support
Security, and the related Loan Support Leased Goods and shall execute such
termination statements, releases and other documents as the Borrower may
reasonably request to effect such termination.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers jointly and severally represent and warrant to the Lender as
follows:
5.1 Organization, etc. Each of the Borrowers and its corporate Subsidiaries
is a corporation validly organized and existing and in good standing under the
laws of the state of its incorporation, has full power and authority to own its
property and conduct its business substantially as presently conducted by it and
is duly qualified to do business and in good standing as a foreign corporation
in each jurisdiction where the nature of its business makes such qualification
necessary and where the failure to qualify would be a Material Adverse
Occurrence. Each Borrower has full power and authority to enter into and to
perform its obligations under the Loan Documents to which it is a party and to
obtain the Loan hereunder.
5.2 Due Authorization. The execution, delivery and performance by each
Borrower of the Loan Documents to which it is a party have been duly authorized
by all necessary corporate action, do not require any approval or consent of, or
any registration, qualification or filing with, any governmental agency or
authority or any approval or consent of any other Person (including, without
limitation, any stockholder) other than such consents, registrations,
qualifications and filings as have been obtained, do not and will not conflict
with, result in any violation of or constitute any default under, any provision
of such Borrower's articles of incorporation or by-laws, any agreement binding
on or applicable to such Borrower or any of its property, or any law or
governmental regulation or court decree or order, binding upon or applicable to
such Borrower or of any of its property and will not result in the creation or
imposition of any Security Interest in any of its property pursuant to the
provisions of any agreement binding on or applicable to such Borrower or any of
its property, except the Security Interest in favor of the Lender in the
Collateral. Neither any Borrower nor any Subsidiary is in default under or in
violation of any such law, statute, rule or regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, loan or credit
agreement or other agreement, lease or instrument in any case in which the
consequences of such default or violation could constitute a Material Adverse
Occurrence. No Default or Event of Default has occurred and is continuing.
15
Section 5.3 Government Consent. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority is required on the
part of any Borrower to authorize, or is required in connection with, the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, the Loan Documents to which such Borrower is a
party.
Section 5.4 Financial Statements and Condition. The Original Borrower's
audited consolidated financial statements as at March 31, 1995, and its
unaudited consolidated financial statements as at December 31, 1995, as
heretofore furnished to the Lender, have been prepared in accordance with GAAP
on a consistent basis and fairly present the financial condition of the Original
Borrower and its consolidated Subsidiaries as at such dates and the results of
their operations and changes in financial position for the respective periods
then ended. As of the dates of such financial statements, neither the Original
Borrower nor any Subsidiary had any material obligation, contingent liability,
liability for taxes or long-term lease obligation which is not reflected in such
financial statements or in the notes thereto. Since December 31, 1995, there has
not been any Material Adverse Occurrence.
5.5 Validity of this Agreement, etc. Each Loan Document is the legal, valid
and binding obligation of each Borrower which is a party thereto and is
enforceable in accordance with its terms, subject only to bankruptcy,
insolvency, reorganization, moratorium or similar laws, rulings or decisions at
the time in effect affecting the enforceability of rights of creditors generally
and to general equitable principles which may limit the right to obtain
equitable remedies.
5.6 Litigation, etc. Except as disclosed to the Lender on Schedule 5.6
attached hereto, there is no action, suit or proceeding at law or equity, or
before or by any federal, state, local or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
pending, or to the knowledge of any Borrower threatened, against any Borrower or
any of its Subsidiaries or any of their property which, if determined adversely,
would be a Material Adverse Occurrence; and neither any Borrower nor any
Subsidiary is in default with respect to any final judgment, writ, injunction,
decree, rule or regulation of any court or federal, state, local or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, where the effect of such default would be a Material
Adverse Occurrence.
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5.7 Title to Collateral. Each Borrower has good and marketable title to all
of the Collateral pledged by it and none of the Collateral is subject to any
Security Interest except for the Security Interests created pursuant to the Loan
Documents and Permitted Liens.
5.8 Validity of Avi Casino Lease; etc. (a) The Avi Casino Lease and the
Loan Support Security relating thereto are genuine, legally valid and
enforceable against SLC and, to the best of the Borrowers' knowledge, against
Avi Casino and each other party thereto; and the unpaid Rent thereon and any
Security therefor will be as represented in the Lease Schedules and will arise
out of the lease of inventory to customers in the ordinary course of business.
The Borrowers have delivered to the Lender true and complete copies of the Avi
Casino Lease and its Loan Support Security. Neither the Avi Casino Lease nor any
of its Loan Support Security has been amended or modified except as disclosed to
the Lender. To the Borrowers' knowledge, no default now exists under the Avi
Casino Lease. No Borrower has received notice of any casualty loss occurring
with respect to the Loan Support Leased Goods subject to the Avi Casino Lease.
None of the Loan Support Security for the Avi Casino Lease has been revoked in
whole or in part. The financial statements and spreadsheets prepared by the
Borrowers and delivered to the Lender which set forth (a) the status and amounts
of payments which have been, or are scheduled to be, made by Lessees under the
Avi Casino Lease, (b) the Borrower's costs incurred to acquire the goods leased
under the Avi Casino Lease, (c) the type of goods leased, and (d) the term of
the Avi Casino Lease, which statements were used by the Lender to agree to enter
into this Agreement, are all complete, accurate, true and correct in all
material respects.
(b) The APT Loan Support Lease and the Loan Support Security relating
thereto are genuine, legally valid and enforceable against each Borrower party
thereto and, to the best of the Borrowers' knowledge, against APT and each other
party thereto; and the unpaid Rent thereon and any Security therefor were as
represented in the Lease Schedules comprising part of the APT Loan Support Lease
and arose out of the lease of inventory to customers in the ordinary course of
business. The Borrowers have delivered to the Lender true and complete copies of
the APT Loan Support Lease and its Loan Support Security. Neither the APT Loan
Support Lease nor any of its Loan Support Security has been amended or modified
except as disclosed to the Lender. To the Borrowers' knowledge, no default now
exists under the APT Loan Support Lease except as disclosed on Schedule 5.8
attached hereto and incorporated herein by reference. No Borrower has received
notice of any casualty loss occurring with respect to the APT Loan Support
Leased Goods. None of the Loan Support Security for the APT Loan Support Lease
has been revoked in whole or in part.
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5.9 Chief Executive Office. The location of the chief executive office of
each Borrower is set forth on the signature page hereof and will not be changed
without 30 days' prior written notice to the Lender. Each Borrower warrants that
its books and records concerning the Collateral are located at its chief
executive office.
5.10 Name of Borrower. Each Borrower's true name is as set forth in the
preamble hereto. No Borrower has used any other name within the past five years
except that the Original Borrower has previously used the name Sunrise Leasing
Corporation and, the Original Borrower's merger partner in the ILC Merger has
previously used the names The X. X. Xxxx Companies, Inc. and International
Leasing Corporation.
Section 5.11 Contingent Liabilities. Except as described in Schedule 5.11,
neither any Borrower nor any Subsidiary has any contingent liabilities which are
material to the Borrowers and the Subsidiaries as a consolidated enterprise.
Section 5.12 Compliance. The Borrowers and the Subsidiaries are in material
compliance with all statutes and governmental rules and regulations applicable
to them.
Section 5.13 Environmental, Health and Safety Laws. There does not exist
any violation by any Borrower or any Subsidiary of any applicable federal, state
or local law, rule or regulation or order of any government, governmental
department, board, agency or other instrumentality relating to environmental,
pollution, health or safety matters which will or threatens to impose a material
liability on such Borrower or such Subsidiary or which would require a material
expenditure by any Borrower or such Subsidiary to cure. Neither any Borrower nor
any Subsidiary has received any notice to the effect that any part of its
operations or properties is not in material compliance with any such law, rule,
regulation or order or notice that it or its property is the subject of any
governmental investigation evaluating whether any remedial action is needed to
respond to any release of any toxic or hazardous waste or substance into the
environment, the consequences of which non-compliance or remedial action could
constitute a Material Adverse Occurrence.
Section 5.14 ERISA. Each Plan complies with all material applicable
requirements of ERISA and the Code and with all material applicable rulings and
regulations issued under the provisions of ERISA and the Code setting forth
those requirements. No Reportable Event has occurred and is continuing with
respect to any Plan. All of the minimum funding standards applicable to such
Plans have been satisfied and there exists no event or condition which would
permit the institution of proceedings to terminate any Plan under Section 4042
of ERISA. The current value of the Plans' benefits guaranteed under Title IV of
ERISA does not exceed the current value of the Plans' assets allocable to such
benefits.
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Section 5.15 Regulation U; Use of Proceeds. No Borrower is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (as defined in Regulation U of the Board of Governors of the Federal
Reserve Board), and no part of the proceeds of the Loan will be used to purchase
or carry margin stock or for any other purpose which would violate any of the
margin requirements of the Board of the Governors of the Federal Reserve System.
Section 5.16 Ownership of Property; Liens. The Borrowers and the
Subsidiaries have good and marketable title to their respective real properties
and good and sufficient title to their respective other properties, including
all properties and assets referred to as owned by the Borrower and the
Subsidiaries in the audited financial statement of the Borrowers referred to in
Section 5.4 (other than property disposed of since the date of such financial
statement in the ordinary course of business).
Section 5.17 Taxes. Each of each Borrower and each Subsidiary has filed all
federal, state and local tax returns required to be filed and has paid or made
provision for the payment of all taxes due and payable pursuant to such returns
and pursuant to any assessments made against it or any of its property and all
other taxes, fees and other charges imposed on it or any of its property by any
governmental authority (other than taxes, fees or charges the amount or validity
of which is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in accordance with GAAP have been provided on
the books of the Borrowers or the Subsidiaries). No tax liens have been filed
and no material claims are being asserted with respect to any such taxes, fees
or charges. The charges, accruals and reserves on the books of each Borrower and
each Subsidiary in respect of taxes and other governmental charges are adequate.
The Borrowers and the Subsidiaries have made all required withholding payments.
Section 5.18 Trademarks, Patents. The Borrowers and the Subsidiaries
possess or have the right to use all of the patents, trademarks, trade names,
service marks and copyrights, and applications therefor, and all technology,
know-how, processes, methods and designs used in or necessary for the conduct of
their respective businesses, without known conflict with the rights of others.
Section 5.19 Investment Company Act. Neither any Borrower nor any
Subsidiary is an "investment company" or "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
Section 5.20 Public Utility Holding Company Act. Neither any Borrower nor
any Subsidiary is a "holding company" or a "subsidiary company" of a holding
company or an "affiliate" of a holding company or of a subsidiary company of a
holding company within the meaning of the Public Utility Holding Company Act of
1935, as amended.
Section 5.21 Subsidiaries. Schedule 5.21 sets forth as of the date of this
Agreement a list of all Subsidiaries and the number and percentage of the shares
of each class of capital stock owned beneficially or of record by any Borrower
or any Subsidiary therein and the jurisdiction of incorporation of each
Subsidiary.
19
Section 5.22 Partnerships and Joint Ventures. Schedule 5.22 sets forth as
of the date of this Agreement a list of all partnerships or joint ventures in
which any Borrower or any Subsidiary is a partner (limited or general) or joint
venturer.
Section 5.23 Escrow Agreement. No Borrower has terminated that certain
Escrow Agreement (the "APT Escrow Agreement") dated as of February 2, 1995 among
APT, Fort Xxxx Escrow Services, Inc. ("Fort Xxxx"), and the Original Borrower or
has agreed to any amendment or modification thereto or waiver of any provision
thereof. To the best of the Borrowers' knowledge, APT has complied with all of
its obligations under the APT Escrow Agreement so that Fort Xxxx has a current
version of the "Information" described in the APT Escrow Agreement.
Section 5.24 No Defenses. As of the Effective Date of this Agreement, no
events have taken place and no circumstances exist at the date hereof which
would give any Borrower the right to assert a defense, offset or counterclaim to
any claim by the Lender for payment of the Obligations.
Section 5.25 Survival of Representations. All representations and
warranties contained in this Article V shall survive the Effective Date of this
Agreement.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrowers jointly and severally agree with the Lender that, as long as
the Loan shall be outstanding, unless the Lender shall otherwise consent in
writing:
Section 6.1 Financial Statements and Reports. The Borrowers shall furnish
to the Lender:
(a) As soon as available and in any event within 100 days after the
end of each fiscal year of the Original Borrower, the annual audit report
of the Original Borrower and its Subsidiaries prepared on a consolidated
basis and in conformity with GAAP, consisting of at least statements of
income, cash flow, changes in financial position and stockholders' equity,
and a consolidated balance sheet as at the end of such year, setting forth
in each case in comparative form corresponding figures from the previous
annual audit, certified without qualification by independent certified
public accountants of recognized standing selected by the Original Borrower
and acceptable to the Lender, together with any management letters,
management reports or other supplementary comments or reports to the
Borrower or its board of directors furnished by such accountants.
20
(b) As soon as available and in any event within 60 days after the end
of each fiscal quarter of each fiscal year, a copy of the unaudited
financial statement of the Original Borrower and its Subsidiaries prepared
in the same manner as the audit report referred to in Section 6.1(a),
except that such statements may exclude footnotes and may be subject to
normal, year-end adjustments, signed by the Original Borrower's chief
financial officer, consisting of at least consolidated statements of
income, cash flow, changes in financial position and stockholders' equity
for the Original Borrower and the Subsidiaries for such quarter and for the
period from the beginning of such fiscal year to the end of such quarter,
and a consolidated balance sheet of the Original Borrower as at the end of
such quarter.
(c) Together with the financial statements furnished by the Borrowers
under Sections 6.1(a) and 6.1(b), a compliance certificate in the form of
Exhibit C attached hereto and made a part hereof signed by the chief
financial officer of the Original Borrower demonstrating in reasonable
detail compliance (or noncompliance, as the case may be) with each of the
financial ratios and restrictions contained in Article VII and stating that
as at the date of each such financial statement there did not exist any
Default or Event of Default, or if such Default or Event of Default
existed, specifying the nature and period of existence thereof and what
action the Borrowers propose to take with respect thereto.
(d) Promptly after receipt (i) annual audited financial statements and
quarterly unaudited financial statements for APT or any Lessee, (ii) Forms
10-K and 10-Q for APT or any Lessee if it is required to file such periodic
reports with the Securities and Exchange Commission and (iii) any other
financial statements or other material information received by the Borrower
from APT and/or any Lessee.
(e) Within 30 days after the end of each month, the Borrowers'
internally prepared monthly aging report with respect to the Loan Support
Lease including lease payments and lease payment delinquencies as of the
last day of such month.
(f) Immediately upon becoming aware of any Default or Event of
Default, a notice describing the nature thereof and what action the
Borrowers propose to take with respect thereto.
(g) Immediately upon becoming aware of the occurrence of any
Reportable Event or any "prohibited transaction" (as defined in Section
4975 of the Code), a notice specifying the nature thereof and what action
the Borrowers propose to take with respect thereto, and, when received,
copies of any notice from PBGC of intention to terminate or have a trustee
appointed for any Plan.
(h) Promptly upon the mailing or filing thereof, copies of all
financial statements,reports and proxy statements mailed to any Borrower's
shareholders, and copies of all registration statements, periodic reports
and other documents filed with the Securities and Exchange Commission (or
any successor thereto) or any national securities exchange.
21
(i) Immediately upon becoming aware of the occurrence thereof, notice
of the institution of any litigation, arbitration or governmental
proceeding, or the rendering of a judgment or decision in such litigation
or proceeding, which is material to the Borrowers and the Subsidiaries as a
consolidated enterprise, and the steps being taken by the Person(s)
affected by such proceeding.
(j) From time to time, such other information regarding the business,
operation and financial condition of the Borrowers and the Subsidiaries as
the Lender may reasonably request.
6.2 Maintenance of Corporate Existences, etc. The Borrowers shall cause to
be done at all times all things necessary to maintain and preserve the corporate
existence of the Borrowers and of the Subsidiaries, and their respective
qualification to transact business in each jurisdiction in which the character
of the properties owned, leased or operated by it or the business conducted by
them would be materially adversely affected by their failure to so qualify.
6.3 Notation on Chattel Paper. The Borrowers shall deliver to the Lender
the original of all Loan Support Leases and will stamp any Master Lease which
relates to Loan Support Leases which are scheduled thereunder with a legend
reflecting the Lender's Security Interest in such schedules. The Lender may
stamp all such Loan Support Leases with a legend reflecting the Lender's
Security Interest therein.
6.4 Protection of Collateral. The Borrowers shall jointly and severally
bear and pay all expenses of protecting, storing, warehousing, insuring,
handling and shipping of the Collateral, all costs of keeping the Collateral
free of any Security Interests prohibited by this Agreement and of removing the
same if they should arise, and any and all excise, property, sales and use taxes
imposed by any state, federal or local authority on any of the Collateral or in
respect of the sale thereof.
6.5 Insurance. The Borrowers shall ensure that each applicable Lessee
complies with the insurance maintenance obligations set forth in the applicable
Loan Support Lease.
6.6 Compliance with Law. Each Borrower shall, and shall cause each
Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees and awards to which
it may be subject. The Borrowers shall not use the Collateral, or knowingly
permit the Collateral to be used, for any unlawful purpose or in violation of
any federal, state or municipal law.
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6.7 Books and Records; Access.
(a) The Borrowers shall permit any Person designated by the Lender to
visit and inspect any of its properties, corporate books and financial
records, to examine and to make copies of its books of accounts and other
financial records, and to discuss the affairs, finances and accounts of the
Borrowers and the Subsidiaries with, and to be advised as to the same by,
its officers at such reasonable times and intervals as the Lender may
designate; provided, that, so long as no Default or Event of Default has
occurred, such visits and inspections shall not occur more often than once
during any six-month period.
(b) The Lender shall have authority, at any time, to place, or require
each Borrower to place, upon such Borrower's books and records relating to
the Collateral a notation or legend stating that such Collateral is subject
to a Security Interest in favor of the Lender.
6.8 Additional Documentation. The Borrower shall execute, from time to
time, such financing statements, assignments, and other documents covering the
Collateral as the Lender may reasonably request in order to create, evidence,
perfect, maintain or continue its Security Interest in the Collateral, and the
Borrowers shall jointly and severally pay the cost of filing the same in all
public offices in which the Lender may deem filing to be appropriate.
6.9 ERISA. The Borrower shall maintain each Plan in compliance with all
material, applicable requirements of ERISA and the Code and with all material,
applicable rulings and regulations issued under the provisions of ERISA and of
the Code.
6.10 Payment of Taxes and Claims. Each Borrower shall, and shall cause each
Subsidiary to, file all tax returns and reports which are required by law to be
filed by it and pay before they become delinquent all taxes, assessments and
governmental charges and levies imposed upon it or its property and all claims
or demands of any kind (including, without limitation, those of suppliers,
mechanics, carriers, warehouses, landlords and other like Persons) which, if
unpaid, might result in the creation of a Security Interest upon its property;
provided that the foregoing items need not be paid if they are being contested
in good faith by appropriate proceedings, and as long as such Borrower's or such
Subsidiary's title to its property is not materially adversely affected, its use
of such property in the ordinary course of its business is not materially
interfered with and adequate reserves with respect thereto have been set aside
on such Borrower's or such Subsidiary's books in accordance with GAAP.
6.11 Maintenance of Account. Each Borrower agrees that, after the
occurrence of any Default or Event of Default, and upon the written request of
the Lender, all payments received by the Borrower pursuant to any Collateral
will promptly be deposited by such Borrower into a Controlled Account. Until
such payments are so deposited, such payments shall be held in trust by such
Borrower for the Lender and shall not be commingled with any other funds of such
Borrower. The Borrower further agrees that it will not deposit any monies into a
Controlled Account other than payments received by such Borrower pursuant to any
Collateral.
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6.12 Changes to Primary Credit Agreement. The Borrower shall promptly
notify the Lender of any changes in the covenants which are applicable to any
Borrower and/or its Subsidiaries pursuant to the Primary Credit Agreement or any
other Primary Credit Document. If requested by the Lender, the Borrowers will
enter into such amendments to the Loan Documents to incorporate such changes as
the Lender shall request.
6.13 Minimum Tangible Net Worth. The Borrowers shall maintain at all times
a minimum Tangible Net Worth of not less than $26,442,922 plus 75% of the
Borrower's cumulative net income after March 31, 1996, with no allowance for
losses plus 100% of the net proceeds of any new equity issued by the Borrower
after March 31, 1996, and consented to by the Lender.
6.14 Minimum Cash Flow. The Borrowers shall maintain the ratio of the
Borrowers' consolidated cash receipts to consolidated cash expenses at not less
than 1.25 to 1.00 calculated as of the end of each fiscal quarter of the
Borrowers and determined on a rolling four quarter basis.
6.15 Ratio of Senior Recourse Debt to Capital Base. The Borrowers shall
maintain at all times the ratio of the Borrowers' consolidated senior recourse
debt to their consolidated Capital Base at not more than 4.50 to 1.0.
ARTICLE VII
NEGATIVE COVENANTS
The Borrowers jointly and severally agree with the Lender that, as long as
the Loan shall be outstanding, unless the Lender shall otherwise consent in
writing:
7.1 Merger. The Borrowers shall not, and shall not permit any Subsidiary
to, merge or consolidate or enter into any analogous reorganization or
transaction with any Person.
7.2 Sale of Assets. The Borrowers shall not, and shall not permit any
Subsidiary to, sell, transfer, lease, or otherwise convey all or any substantial
part of its assets.
7.3 Purchase of Assets. The Borrowers shall not, and shall not permit any
Subsidiary to, purchase or lease or otherwise acquire all or substantially all
of the assets of any Person to the extent that such purchases or leases would,
in the aggregate, exceed $500,000 during the term of this Agreement.
24
7.4 Plans. The Borrowers shall not, and shall not permit any Subsidiary to,
permit any condition to exist in connection with any Plan which might constitute
grounds for the PBGC to institute proceedings to have such Plan terminated or a
trustee appointed to administer such Plan; permit any Plan to terminate under
any circumstances which would cause the lien provided for in Section 4068 of
ERISA to attach to any property, revenue or asset of the Borrower or any
Subsidiary; or permit the underfunded amount of Plan benefits guaranteed under
Title IV of ERISA to exceed $50,000.
7.5 Change in Nature of Business. The Borrowers shall not, and shall not
permit any Subsidiary to, make any material change in the nature of its business
as carried on at the date of this Agreement.
7.6 Subsidiaries, Partnerships and Joint Ventures. The Borrowers shall not,
and shall not permit any Subsidiary to, either (a) form or acquire any
corporation which would thereby become a Subsidiary; or (b) form or enter into
any partnership as a limited or general partner or into any joint venture.
7.7 Other Agreements. The Borrowers shall not, and shall not permit any
Subsidiary to, enter into any agreement, bond, note or other instrument with or
for the benefit of any Person other than the Lender which would be violated or
breached by any Borrower's performance of its obligations under the Loan
Documents.
7.8 Restricted Payments. The Borrowers shall not, and shall not permit any
Subsidiary to, purchase or redeem any shares of its stock, declare or pay any
dividends thereon (other than dividends payable solely in a Borrower's common
stock and dividends payable to the Borrower), make any distribution to
stockholders as such (other than the Borrower), or set aside any funds for any
such purpose, and not prepay, purchase or redeem any Subordinated Debt.
7.9 Security Interest; Transfers.
(a) The Borrowers shall not create, incur, assume or suffer to exist
any Security Interest on any of the Collateral except Permitted Liens and
Security Interests in favor of the Lender created by the Loan Documents.
The Borrower shall not transfer its interest in any Collateral, except as
specifically permitted by the Loan Documents.
(b) Without the prior written consent of the Lender, which consent
will not be unreasonably withheld, the Borrowers shall not, and shall not
permit any Subsidiary (other than a Borrower) to, create, incur, assume or
suffer to exist any Security Interest on any of its property, real or
personal, except (i) Security Interests in favor of the Lender created
pursuant to the Loan Documents; (ii) Security Interests in existence as of
the date of this Agreement listed on Schedule 7.9; (iii) Security Interests
securing non-recourse Indebtedness or recourse Indebtedness in an amount of
up to $1,000,000 in any single transaction, in each case incurred in the
ordinary course of business provided that such Security Interests are
limited only to those Leases and the goods which are the subject of such
Leases as to which the recourse of the applicable lender is limited; and
(iv) Security Interests for current taxes and assessments which are not yet
due and payable.
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7.10 Modification of Loan Support Leases. The Borrowers shall not amend or
modify any provision of any Loan Support Lease except in accordance with the
Borrowers' customary practices; provided, however, that (i) without the Lender's
prior written consent, the Borrower shall not (1) decrease the amount of, or
delay the due date of, any Rent, (2) release any collateral or guarantor, (3)
knowingly waive any event of default, or (4) permit any assignment by a Lessee,
and (ii) after the occurrence of an Event of Default, the Borrowers shall not
enter into any amendment or modification of any Loan Support Lease without the
Lender's prior written consent.
7.11 Location of Loan Support Leased Goods. At the time of attachment and
perfection of the Security Interest granted pursuant hereto, all Loan Support
Leased Goods, will be located and will be maintained only at the locations set
forth on the applicable Lease Schedule. The Borrowers shall not permit such Loan
Support Leased Goods to be removed from such locations unless, promptly after
the Borrowers has knowledge of any such removal, the Borrowers determine that
the new location is a location for which financing statements have been filed
where appropriate or other action taken to continue the perfection of the
Lender's Security Interest as a first priority Security Interest therein or if
such financing statements have not been previously filed or other action taken
in the new location, gives written notice to the Lender of the location or
locations to which the Collateral has been moved, and the Borrowers delivers to
the Lender acknowledgment copies of financing statements filed where appropriate
to continue the perfection of the Lender's Security Interest as a first priority
Security Interest therein. The Lender's Security Interest attaches to all of the
Collateral wherever located and the Borrowers' failure to inform the Lender of
the location of any item or items of Collateral shall not impair the Lender's
Security Interest therein.
7.12 Transactions with Related Parties. The Borrowers shall not, and shall
not permit any Subsidiary to, enter into or be a party to any transaction or
arrangement, including, without limitation, the purchase, sale, lease or
exchange of property or the rendering of any service, with any Related Party,
except: (a) in the ordinary course of and pursuant to the reasonable
requirements of the applicable Borrower's or the applicable Subsidiary's
business and upon fair and reasonable terms which shall be no less favorable to
such Borrower or such Subsidiary than would be obtained in a comparable
arm's-length transaction with a Person not a Related Party; (b) indebtedness
owed to King Holding Company, The X.X. Xxxx Companies, Inc., or any of their
respective Affiliates permitted by Section 7.13(d) and secured by Security
Interests permitted by Section 7.9(b) and payments thereon in accordance with
the terms thereof in effect on the Effective Date; or (c) a settlement with The
X. X. Xxxx Companies, Inc. or any of Xxxxx X. Xxxx'x Affiliates pertaining to
claims arising out of the ILC Merger so long as such settlement only requires
the issuance of common or preferred stock by the Borrowers or any of their
Subsidiaries and does not require any cash payments.
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7.13 Additional Indebtedness. Without the prior written consent of the
Lender, which consent will not be unreasonably withheld, the Borrowers shall
not, and shall not permit any Subsidiary to, create, incur, assume or suffer to
exist any Indebtedness other than: (a) Indebtedness in favor of the Lender; (b)
current liabilities incurred in the ordinary course of business; (c)
non-recourse Indebtedness, or recourse Indebtedness up to but not exceeding
$1,000,000 in any single transaction, incurred in the ordinary course of
business; and (d) Indebtedness existing on the date of this Agreement and set
forth on Schedule 7.13 hereto.
7.14 Guaranties. Without the prior written consent of the Lender, which
consent will not be unreasonably withheld, except for guaranties listed on
Schedule 7.14 attached the Borrowers shall not, and shall not permit any
Subsidiary, to assume, guarantee, endorse or otherwise become liable in
connection with the indebtedness of any other person or entity except
endorsements of negotiable instruments for deposit or collection in the ordinary
course of business and guaranties of recourse Indebtedness of a Subsidiary
(other than a Borrower) up to, but not exceeding $1,000,000 in any single
transaction of such Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an Event of Default:
(a) The Borrowers shall fail to make when due, whether by acceleration
or otherwise, any payment of principal of or interest on the Note or any
fee or other amount required to be made to the Lender pursuant to the Loan
Documents;
(b) Any representation or warranty made or deemed to have been made by
or on behalf of any Borrower or any Subsidiary in any of the Loan Documents
or by or on behalf of any Borrower or any Subsidiary in any certificate,
statement, report or other writing furnished by or on behalf of any
Borrower to the Lender pursuant to the Loan Documents shall prove to have
been false or misleading in any material respect on the date as of which
the facts set forth are stated or certified or deemed to have been stated
or certified;
(c) The Borrower shall fail to comply with Section 6.1(f), 6.2, 6.13,
6.14, 6.15 or 6.16 hereof or any Section of Article VII hereof;
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(d) Any Borrower shall fail to comply with any agreement, covenant,
condition, provision or term contained in the Loan Documents (and such
failure shall not constitute an Event of Default under any of the other
provisions of this Section 8.1) and such failure to comply shall continue
for 30 calendar days after notice thereof to the Borrowers by the Lender;
(e) Any Borrower or any Subsidiary shall become insolvent or shall
generally not pay its debts as they mature or shall apply for, shall
consent to, or shall acquiesce in the appointment of a custodian, trustee
or receiver of the Borrower or such Subsidiary or for a substantial part of
the property thereof or, in the absence of such application, consent or
acquiescence, a custodian, trustee or receiver shall be appointed for the
Borrower or a Subsidiary or for a substantial part of the property thereof
and shall not be discharged within 30 days;
(f) Any bankruptcy, reorganization, debt arrangement or other
proceedings under any bankruptcy or insolvency law shall be instituted by
or against a Borrower or a Subsidiary, and, if instituted against a
Borrower or a Subsidiary, shall have been consented to or acquiesced in by
such Borrower or such Subsidiary, or shall remain undismissed for 30 days,
or an order for relief shall have been entered against such Borrower or
such Subsidiary, or any Borrower or any Subsidiary shall take any corporate
action to approve institution of, or acquiescence in, such a proceeding;
(g) Any dissolution or liquidation proceeding shall be instituted by
or against a Borrower or a Subsidiary and, if instituted against a Borrower
or a Subsidiary, shall be consented to or acquiesced in by such Borrower or
such Subsidiary or shall remain for 30 days undismissed, or any Borrower or
any Subsidiary shall take any corporate action to approve institution of,
or acquiescence in, such a proceeding;
(h) A judgment or judgments for the payment of money (other than a
judgment described in subsection (l) below) in excess of the sum of $50,000
in the aggregate shall be rendered against a Borrower or a Subsidiary and
such Borrower or such Subsidiary shall not discharge the same or provide
for its discharge in accordance with its terms, or procure a stay of
execution thereof, prior to any execution on such judgments by such
judgment creditor, within 30 days from the date of entry thereof, and
within said period of 30 days, or such longer period during which execution
of such judgment shall be stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal;
(i) Steps to terminate any Plan shall be instituted by any Borrower or
any ERISA Affiliate if, in order to effectuate such termination, such
Borrower or any ERISA Affiliate would be required to make a contribution to
such Plan, or would incur a liability or obligation to such Plan, in excess
of $50,000, or the PBGC shall institute steps to terminate any Plan;
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(j) The maturity of any Indebtedness in an amount in excess of
$100,000 of a Borrower (other than Indebtedness under this Agreement) or a
Subsidiary shall be accelerated, or a Borrower or a Subsidiary shall fail
to pay any such Indebtedness when due or, in the case of such Indebtedness
payable on demand, when demanded, or any event shall occur or condition
shall exist and shall continue for more than the period of grace, if any,
applicable thereto and shall have the effect of causing, or permitting the
holder of any such Indebtedness or any trustee or other Person acting on
behalf of such holder to cause such Indebtedness to become due prior to its
stated maturity or to realize upon any Collateral given as security
therefor;
(k) The Borrowers shall fail to have a Primary Credit Facility in full
force and effect on terms substantially similar to those in effect on the
date hereof;
(l) The entry of an order, judgment or decree by any court or an award
by arbitrators rescinding the ILC Merger or imposing monetary damages
against one or more of the Borrowers for claims relating to the ILC Merger
(any such rescission or monetary damage order, judgement, decree or award
being a "King Judgment") and either: (i) such King Judgment is enforced, or
sought to be enforced, by the holder thereof (a "King Judgment Holder")
against any Borrower or any Borrower's property through any judicial or
non-judicial action including, without limitation, by agreement with any
Borrower; (ii) any Borrower agrees or allows any King Judgment Holder to
take any action with respect to any Borrower's property to satisfy or
secure, in whole or in part, any King Judgment regardless of whether such
King Judgment remains valid or enforceable at the time or after any such
allowance or agreement except as permitted by Section 7.12(c); or (iii)
such King Judgment, regardless of whether modified, becomes final by appeal
or passage of time to appeal without an appeal being filed; or
(m) Any "Event of Default" (howsoever defined) occurs under the Avi
Casino Lease and such "Event of Default" is not cured within any applicable
cure period provided in the Avi Casino Lease.
8.2 Right of Acceleration Upon Event of Default. If an Event of Default
described in Section 8.1(e), (f) or (g) shall occur, the full unpaid principal
amount of the Note shall automatically be due and payable without any
declaration, notice, presentment, protest or demand of any kind (all of which
are hereby waived). If any other Event of Default shall occur and be continuing,
the Lender may declare the outstanding principal amount of the Note to be due
and payable without notice, presentment, protest or demand of any kind (all of
which are hereby waived), whereupon the full unpaid amount of the Note shall be
and become immediately due and payable.
8.3 Additional Rights and Remedies. In addition to acceleration of the Loan
pursuant to Section 8.2, upon the occurrence of an Event of Default, and at any
time thereafter, the Lender may exercise any one or more of the following rights
and remedies:
29
(a) Offset any deposits, including unmatured time deposits, then
maintained by any Borrower with the Lender, whether or not then due,
against any of the Obligations;
(b) In the name of any Borrower or otherwise, demand, collect, receive
and receipt for, compound, compromise, settle and give acquittance for and
prosecute and discontinue any suits or proceedings in respect of any or all
of the Collateral;
(c) Take any action which the Lender may deem necessary or desirable
in order to realize on the Collateral, including, without limitation, the
power to direct any obligor on the Collateral to make payment directly to
the Lender and the power to perform any contract, to endorse in the name of
the Borrower any checks, drafts, notes, or other instruments or documents
received in payment of or on account of the Collateral; and
(d) Subject to any right of quiet enjoyment of Avi Casino or any other
Lessee under the documents creating the Loan Support Leases, exercise any
and all other rights and remedies available to it by law or by agreement,
including rights and remedies under the Uniform Commercial Code or any
other applicable law, or under this Agreement and, in connection therewith,
the Lender may require the Borrowers to assemble the Collateral and make it
available to the Lender at a place to be designated by the Lender, and any
notice of intended disposition of any of the Collateral required by law
shall be deemed reasonable if such notice is given to the Borrowers at
least ten days before the date of such disposition.
8.4 Application of Moneys. All proceeds of Collateral shall be applied in
accordance with Minnesota Statutes ss.336.9-504 and such proceeds applied toward
the Obligations shall be applied in such order as the Lender may elect.
ARTICLE IX
MISCELLANEOUS
9.1 Waivers, Amendments, etc. The provisions of this Agreement, including
the closing conditions set forth herein, may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrowers and the Lender.
No failure or delay on the part of the Lender or the holder of the Note in
exercising any power or right under this Agreement or the Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrower in any case shall
entitle it to any notice or demand in similar or other circumstances.
30
9.2 Computation and Payment, etc., of Liabilities. All computations of
interest payable on the outstanding principal amount of the Loan shall be
computed on the basis of a year comprised of 360 days, but charged for the
actual number of days elapsed (including the first day but excluding the last
day) occurring in the period for which such interest is payable. Whenever any
payment to be made hereunder shall otherwise be due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall be included in computing the fees or interest
payable on such next succeeding Business Day.
9.3 Notices. All communications and notices provided under this Agreement
shall be in writing or by telecopy and if to any party addressed or delivered to
it at the address shown on the signature page hereof, or to any party at such
other address as may be designated by such party in a notice to the other party.
Any such notice shall be deemed to be given when transmitted and received by
telecopier or personally delivered, or three days after being deposited in the
United States mail, postage prepaid (whether or not actually received), or one
day after delivery to Federal Express or other overnight courier service
(whether or not actually received).
9.4 Costs and Expenses. The Borrowers jointly and severally agree to
reimburse upon demand for all reasonable expenses paid or incurred by the Lender
(including filing and recording costs and fees and expenses of legal counsel,
who may be employees of the Lender) in connection with the negotiation and
preparation of the Loan Documents. The Borrower agrees to pay, and save harmless
from all liability for, any stamp or other taxes which may be payable with
respect to the execution or delivery of the Loan Documents. The Borrower agrees
to reimburse the Lender upon demand for all reasonable out-of-pocket expenses
(including attorneys' fees and legal expenses) paid or incurred by the Lender in
connection with the amendment, modification, interpretation, collection or
enforcement of the obligations of the Borrower hereunder or under the Note or
any other Loan Documents including, without limitation, attorneys' fees and
legal expenses in connection with any appeal of a lower court's order or
judgment. The Obligations of the Borrower under this Section shall survive any
termination of this Agreement.
9.5 Severability. Any provision of this Agreement or any Loan Document
executed pursuant hereto which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
9.6 Cross-References. References in this Agreement to any Section or
Article are, unless otherwise specified, to such Section or Article of this
Agreement.
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9.7 Headings. The various headings of this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provisions hereof.
9.8 Governing Law. This Agreement, the Note, and each other Loan Document
shall each be deemed to be a contract made under and governed by the internal
laws of the State of Minnesota.
9.9 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns, except that Borrowers may not assign or transfer their rights hereunder
without the prior written consent of the Lender. The Lender may furnish any
information concerning any Borrower in the possession of the Lender from time to
time to participants and prospective participants and to successors and assigns
and prospective successors and assigns, and may furnish information in response
to credit inquiries consistent with general banking practice.
9.10 Recitals Incorporated. The recitals to this Agreement are incorporated
into and constitute an integral part of this Agreement.
9.11 Commissions. The Borrowers hereby jointly and severally warrant to the
Lender and the Lender hereby warrants to the Borrower that no broker, agent or
finder has been retained by either party and that no broker's commissions,
finder's fees or like charges have been incurred in connection with this
transaction. Each party hereby indemnifies and agrees to hold harmless the other
from and against all losses, damages, costs, expenses (including reasonable fees
and expenses of attorneys), causes of action, suits or judgments of any nature
arising out of any claim, demand or liability to or asserted by any broker,
agent or finder, other than herein specified, claiming to have acted on behalf
of the indemnifying party in connection with this transaction.
9.12 Entire Agreement. This Agreement and the other Loan Documents embody
the entire agreement and understanding between the Borrowers and the Lender with
respect to the subject matter hereof and thereof. This Agreement supersedes the
Original Agreement (except as provided in ARTICLE IV hereof) and all prior
agreements and understandings relating to the subject matter hereof.
9.13 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and either of the parties hereto may execute this Agreement by
signing any such counterpart.
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9.14 Consent to Jurisdiction. AT THE OPTION OF THE LENDER, THIS AGREEMENT,
THE NOTE, AND THE OTHER LOAN DOCUMENTS MAY BE ENFORCED IN ANY FEDERAL COURT OR
MINNESOTA STATE COURT SITTING IN MINNEAPOLIS OR ST. XXXX, MINNESOTA; AND THE
BORROWER CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY
ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE BORROWER
COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT
THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS
AGREEMENT, THE LENDER AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE
TRANSFERRED TO ONE OF THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH
TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE
DISMISSED WITHOUT PREJUDICE.
9.15 Waiver of Jury Trial. THE BORROWER WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (a) UNDER THIS
AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (b) ARISING FROM
ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
9.16 Waiver of Defaults; etc. On the Effective Date of this Agreement, the
Lender waives all "Defaults" and "Events of Default" existing under the Original
Agreement.
9.17 Release. On the Effective Date of this Agreement, each Borrower hereby
releases and forever discharges the Lender and its successors, assigns,
directors, officers, agents, employees and participants from any and all
actions, causes of action, suits, proceedings, debts, sums of money, covenants,
contracts, controversies, claims and demands, at law or in equity, which such
Borrower ever had or, as of the Effective Date, has against the Lender or its
successors, assigns, directors, officers, agents, employees or participants by
virtue of their relationship to any Borrower in connection with the Original
Agreement and the transactions related thereto.
9. 18 Consent. On the Effective Date of this Agreement, the Lender consents
to the financing transaction described on Schedule 9.18 attached hereto and
waives any Default or Event of Default under Section 7.2, 7.6 or 7.9 resulting
from the consummation of such transaction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
Sunrise Leasing Corporation
By /s/ Xxxxx X. Xxxxxxx
Its Chief Financial Officer
Address: 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
Sunrise Resources, Inc.
By /s/ Xxxxx X. Xxxxxxx
Its Chief Financial Officer
Address: 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
The Daiwa Bank, Limited,
By Xxx Xxxxx
Its Attorney-In-Fact
Address for Notices:
4135 Multifoods Tower
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Mr. Michael Philippe
Telecopier No.: (000) 000-0000
34
LIST OF EXHIBITS
Exhibit A Note
Exhibit B Opinion of Counsel
Exhibit C Compliance Certificate
LIST OF SCHEDULES
Schedule 5.2 Due Authorization
Schedule 5.6 Litigation
Schedule 5.8 APT Loan Support Lease Defaults
Schedule 5.11 Contingent Liabilities
Schedule 5.21 Subsidiaries
Schedule 5.22 Partnerships and Joint Ventures
Schedule 7.9 Existing Security Interests
Schedule 7.13 Existing Indebtedness
Schedule 7.14 Existing Guaranties
Schedule 9.18 Financing Transactions
