EXHIBIT 10.74
LOAN AGREEMENT
among
FLEET NATIONAL BANK,
not in its individual capacity but solely as
Owner Trustee under the Trust Agreement, as the Lessor,
THE LENDERS NAMED HEREIN,
and
CREDIT LYONNAIS NEW YORK BRANCH,
as the Agent
Dated as of April 16, 1997
TABLE OF CONTENTS
Section Page
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ARTICLE I
Definitions
ARTICLE II
Notes
2.01. Loans.................................................................. 3
2.02. Characteristics of all Notes........................................... 4
2.03. Characteristics of Series A Notes...................................... 7
2.04. Prepayment of Notes.................................................... 7
2.05. Register, Transfer, and Exchange of Notes.............................. 8
2.06. Application of Payments Prior to an Event of Default................... 9
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2.07. Amendments of Lease Agreement; the Lessor Actions...................... 9
2.08. Investment of Funds.................................................... 9
ARTICLE III
Covenants of the Lessor
ARTICLE IV
Limitation of Liability
ARTICLE V
Events of Default; Remedies
5.01. Events of Default....................................................... 11
5.02. Specific Remedies....................................................... 12
5.03. Application of Proceeds................................................. 13
5.04. Rescission.............................................................. 13
5.05. Rights and Remedies Cumulative; No Waiver............................... 13
5.06. Restoration of Rights and Remedies...................................... 14
5.07. Compliance with Law..................................................... 14
ARTICLE VI
Agent
6.01. Appointment............................................................. 14
6.02. Delegation of Duties.................................................... 14
6.03. Nature of Duties; Independent Credit Investigation...................... 14
6.04. Actions in Discretion of the Agent; Required Lenders' Consent........... 15
6.05. Exculpatory Provisions.................................................. 15
6.06. Reimbursement and Indemnification....................................... 15
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6.07. Reliance by the Agent............................................ 15
6.08. Individual Capacity.............................................. 16
6.09. Holders of Notes................................................. 16
6.10. Successors....................................................... 16
6.11. Distributions to the Lenders..................................... 16
ARTICLE VII
Miscellaneous
7.01. Notices........................................................... 16
7.02. Survival.......................................................... 17
7.03. Amendments and Waivers............................................ 17
7.04. Entire Agreement.................................................. 17
7.05. Governing Law..................................................... 17
7.06. Non-Recourse To Certain Parties................................... 17
7.07. Invalidity of Provisions.......................................... 17
7.08. Counterparts...................................................... 17
7.09. Effectiveness..................................................... 17
7.10. Headings.......................................................... 17
7.11. Holders of Notes.................................................. 17
7.12. Successors and Assigns............................................ 18
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LOAN AGREEMENT dated as of April 16, 1997 among FLEET NATIONAL BANK, a
national banking association, not in its individual capacity but solely as the
Owner Trustee under the Trust Agreement (the "Lessor"), the banks named on
Schedule I hereto, together with their successors and registered assigns, as
holder of the Notes (the "Lenders"), and CREDIT LYONNAIS NEW YORK BRANCH, a
branch duly licensed under the laws of New York of a banking corporation
organized and existing under the laws of the Republic of France, as agent for
the Lenders (the "Agent").
W I T N E S S E T H:
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WHEREAS, the Lessor will finance the cost of certain property and acquire
an interest therein pursuant to the Lease Agreement (the "Lease Agreement")
dated as of the date hereof between the Lessor and Smart & Final Inc., a
Delaware corporation (the "Lessee"), together with the Lease Supplements
executed and delivered in connection therewith, as the same may be amended or
supplemented from time to time;
WHEREAS, in order to finance the cost of such property, the Lessor will
execute in favor of (i) the Lenders one or more non-recourse promissory notes
substantially in the form of Annex A hereto (collectively, the "Notes") pursuant
to the terms hereof and of the Participation Agreement dated as of the date
hereof among the Lessee, the Lessor, the Significant Sublessees named therein,
the Equity Participant, the Agent and the Lenders, as the same may be amended or
supplemented from time to time (the "Participation Agreement");
WHEREAS, pursuant to the Mortgage and Assignment Agreements, the interests
of the Lessor in, inter alia, the Leased Premises, the Lease Agreement and
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certain obligations of the Lessee thereunder are to be assigned and granted to
and retained by Agent, as agent for the Lenders, as security for the obligations
of the Lessor hereunder and under the Notes and as agent for the Equity
Participant to secure its interest in the Lessor.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
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Definitions
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Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Definition Schedule attached as Exhibit A to
the Participation Agreement.
ARTICLE II
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Notes
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2.01. Loans.
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(a) General. The Lenders hereby severally agree, on the terms and subject
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to the conditions set forth in this Loan Agreement and the other Transaction
Documents, to make loans to the Lessor on each Closing Date and Advance Date.
The Lessor's obligation to repay the loans
hereunder shall be evidenced by its non-recourse promissory notes, referred to
as the Notes, executed in favor of the Lenders, respectively, as more fully
described below.
(b) Procedure for Borrowings. The Lessor may borrow pursuant to this
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Article II by giving the Agent not less than three Business Days' notice, by
1:00 p.m. New York time, of its request for loans hereunder. Such notice shall
specify (i) the date of the proposed borrowing (the "Borrowing Date"), (ii) the
aggregate principal amount of loans, (iii) whether the loans are to bear
interest at a Base Rate, Eurodollar Rate or LIBOR Rate, and (iv) if the loans
are to bear interest at a Eurodollar Rate, the term of the interest period
therefor.
Upon receipt of any such notice from the Lessor and on such date of
receipt, the Agent shall forthwith give notice to each Lender of the substance
thereof. Not later than 12:00 noon, New York time, on the Borrowing Date
specified in such notice, each Lender shall make available to the Agent in
immediately available funds at the office of the Agent at 1301 Avenue of the
Americas, New York, New York 10019, such Lender's pro rata share of the
requested loans.
Upon receipt by the Agent of all such funds and upon satisfaction of the
conditions set forth in this Article II, the Agent shall disburse to the Lessor
the loan requested in such notice. The Agent may, but shall not be required to,
advance on behalf of any such Lender such Lender's pro rata share of the loans
on a Borrowing Date unless such Lender shall have notified the Agent prior to
the Borrowing Date that it does not intend to make available its pro rata share
of such loans on such date. If the Agent makes such advance, the Agent shall be
entitled to recover such amount on demand from the Lender on whose behalf such
advance was made. Until such amount is repaid to the Agent by such Lender or the
Lessor such advance shall be deemed for all purposes to be a loan made by the
Agent. If the Agent recovers such amount from such Lender, the Agent shall be
entitled to recover from the Lender interest on the amount advanced by it for
each day such amount is made available at a rate per annum equal to the
customary rate set by the Agent for the correction of errors among banks for the
first three Business Days and, thereafter, at the applicable rate on the loans
made on the Borrowing Date. If the Agent recovers such amount from the Lessor,
the Agent shall be entitled to recover from the Lessor interest on the amount
advanced by it for each day such amount is made available at a rate per annum
equal to the customary rate set by the Agent for the correction of errors among
banks for the first Business Days and, thereafter at the applicable rate on the
loans made on the Borrowing Date.
2.02. Characteristics of all Notes.
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(a) General. The Notes (i) shall be dated as of the initial Closing Date
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under the Participation Agreement, (ii) shall entitle the holders thereof to
payments of interest on the outstanding principal amount thereof for each day
during each Payment Period applicable thereto from the date thereof and (iii) as
provided in Section 2.06 hereof, shall be exchangeable for an equal aggregate
principal amount of Notes of like tenor. Unless sooner paid, by reason of
acceleration or otherwise, the entire unpaid principal balance of the Notes,
together with interest accrued thereon, shall be due and payable on the Maturity
Date. Except as otherwise provided in paragraphs (d) and (e) below, borrowings
evidenced by the Notes shall consist of (i) for the period beginning on the
initial Closing Date and ending on the last day of the Payment Period next
following the Completion Date, one or more (but not greater than four) of the
following: Base Rate Notes, Eurodollar Notes and LIBOR Notes (the LIBOR Notes
being available only for a full Payment Period of three months), and (ii)
thereafter, consecutive LIBOR Notes having Payment Periods of three months.
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(b) Interest. So long as no Event of Default has occurred and is
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continuing, the Lessor shall pay interest to the Lenders on the outstanding and
unpaid principal amount of the Notes at a rate per annum as follows:
(i) For each LIBOR Note at a rate equal to the LIBOR Rate plus 0.50%
per annum for the period;
(ii) For each Eurodollar Note, at a rate equal to the Eurodollar Rate
plus 0.50% per annum; and
(iii) For a Base Rate Note, at a rate equal to the Base Rate.
Interest on all Notes shall be paid on the last day of each Payment Period by
wire transfer of federal funds or other immediately available funds to the Agent
at the times and in the manner as set forth under Section 2.02(c) hereof. In
computing interest on any Note, the first date of the Payment Period shall be
included and the date of payment shall be excluded. Except in the case of an
Event of Default, any amounts under the Notes not paid when due shall bear
additional interest at the Late Payment Rate for the period for which the same
shall be overdue. Upon the occurrence and during the continuance of an Event of
Default, the Lessor shall pay interest on the outstanding and unpaid principal
of the Notes and on all overdue payments of interest on such Notes at the Late
Payment Rate. Payments of interest at the Late Payment Rate are due and payable
on demand.
(c) Method of Payment. The Lessor shall make each payment of principal and
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interest under this Loan Agreement not later than 11 A.M., New York City time,
on the day when due to the Agent by wire transfer of federal funds or other
immediately available funds, identifying each payment in such manner and payable
to such account of Agent as provided on the signature pages of the Participation
Agreement. The Agent will promptly thereafter distribute to each registered
holder of Notes its ratable share of each such payment received by the Agent for
the account of such holders at such place as has been provided to Agent in
writing, to be applied with and subject to the terms of this Loan Agreement,
including, without limitation, Section 2.05 hereof. Unless the Agent shall have
received notice from the Lessor prior to the date on which any payment is due
from the Lessor to one or more of the holders of Notes hereunder that the Lessor
will not make such payment in full, the Agent may assume that the Lessor has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each holder of Notes
on such due date an amount equal to the amount then due such holder of Notes
from the Lessor. If and to the extent that the Lessor shall not have so made
such payment, each holder of Notes shall repay to the Agent forthwith on demand
such amount distributed to such holder of Notes together with interest thereon,
for each day from the date such amount is distributed to such holder of Notes
until the date such holder of Notes pays such amount to the Agent, at the
Federal Funds Rate.
(d) Illegality. Notwithstanding any other provision in this Loan
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Agreement, if on any date on which the LIBOR Rate or Eurodollar Rate would
otherwise be set, any Lender determines that any applicable law, rule, or
regulation, or any change therein, or any change in the interpretation or
administration thereof by, or any guideline of, any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank, or comparable agency shall make it unlawful or impracticable for
any Lender to maintain or fund its respective LIBOR Notes or Eurodollar Notes in
good faith, then upon notice of such event to the Lessor by such Lender, as the
case may be, the affected Notes held by Lender shall
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thereafter consist of, and shall be converted into Base Rate Notes either (i) on
the last day of the then-current Payment Period applicable to such LIBOR Notes
or Eurodollar Notes if such Lender may lawfully continue to maintain and fund
such LIBOR Notes or Eurodollar Notes to such day or (ii) immediately if such
Lender shall determine it may not lawfully continue to maintain and fund such
LIBOR Notes or Eurodollar Notes to such day, and shall remain Base Rate Notes
until such time that such Lender notifies the Lessor that the circumstances
giving rise to such conversion no longer exist.
(e) Disaster. Notwithstanding any other provision of this Agreement, if
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on any date on which the LIBOR Rate or Eurodollar Rate would otherwise be set,
the Agent (in the case of clauses (i), or (ii) below) or any Lender, including
any subsequent holder of a Note, (in the case of clause (iii) below) shall have
determined in good faith (which determination shall be conclusive) that (i)
adequate and reasonable means do not exist for ascertaining the LIBOR Rate or
Eurodollar Rate, (ii) a contingency has occurred which materially and adversely
affects the interbank Eurodollar market, or (iii) the effective cost to lenders
of funding loans from funds obtained in the London interbank market shall exceed
the LIBOR Rate or Eurodollar Rate; then, and in any such event, the Agent or
such Lender, as the case may be, may notify the Lessor of such determination.
Upon such date as shall be specified in such notice (which shall not be earlier
than the date such notice is given) the affected Notes shall be converted to
Base Rate Notes on the last day of the then-current Payment Period applicable
thereto until such time that the Agent or Lender, as the case may be, notifies
the Lessor that the circumstances giving rise to such conversion no longer
exist.
(f) Increased Cost. The Lessor shall pay to the Lenders from time to time
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such amounts as any Lender may determine to be necessary to compensate such
Lender for any costs incurred by such Lender which such Lender determines are
attributable to its funding or maintaining the Notes held by it hereunder, or
any reduction in any amount receivable by such Lender under this Loan Agreement
in respect of any Note (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any change
after the date of this Loan Agreement in U.S. federal, state, municipal, or
foreign laws or regulations (including Regulation D), or the adoption or making
after such date of any interpretations, directives, or requirements applying to
a class of banks including any Lender or under any U.S. federal, state,
municipal, or any foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof ("Regulatory Change"), which: (i)
imposes or modifies any reserve, special deposit, compulsory loan, or similar
requirements relating to any extensions of credit or commitments to extend
credit or other assets of (funded or contingent), or any deposits with or the
liabilities of, such Lender (including any of such liabilities or any deposits
referred to in the definition of LIBOR Rate or Eurodollar Rate, as applicable);
or (ii) imposes any other condition affecting this Loan Agreement or the
extension of credit hereunder. Each Lender will notify the Lessor of any event
occurring after the date of this Loan Agreement which will entitle such Lender
to compensation pursuant to this paragraph as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
Determinations by such Lender for purposes of this paragraph of the effect of
any Regulatory Change on its costs of funding or maintaining the Notes or on
amounts receivable by it in respect of Notes, and of the additional amounts
required to compensate such Lender in respect of any Additional Costs, shall be
conclusive, provided that such determinations are made on a reasonable basis.
(g) Capital. In the event any Lender determines that (i) the adoption of
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any applicable law, rule or regulation regarding capital adequacy, or any change
therein, (ii) compliance with any interpretation by any judicial,
administrative, or other governmental or central bank or comparable agency
charged with the interpretation or administration of any such law, rule or
regulation or (iii) compliance by such Lender with any guideline or request from
any such central
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bank, government authority or comparable agency (whether or not having the force
of law) has or would have the effect of requiring an increase in the amount of
capital required or expected to be maintained by such Lender, or any person
controlling such Lender, and such Lender determines (taking into consideration
such Lender's policies with respect to capital adequacy) that such increase is
based upon its obligations hereunder, and other similar obligations, the Lessor
shall pay to such Lender such additional amount as shall be certified by such
Lender to be the amount allocable to such Lender's obligations to the Lessor
hereunder. The Lender will notify the Lessor of any event occurring after the
date of this Loan Agreement that will entitle such Lender to compensation
pursuant to this paragraph as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation. Determinations by such
Lender for purposes of this paragraph of the effect of any increase in the
amount of capital required to be maintained by such Lender or any person
controlling the Lender, and of the amount allocable to such Lender's obligations
to the Lessor hereunder shall be conclusive, provided that such determinations
are made on a reasonable basis.
(h) Funding Loss Indemnification. The Lessor shall pay to the Agent, upon
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the request of the Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Agent) to compensate it for any loss, cost, or expense
incurred as a result of any payment of a LIBOR Note or Eurodollar Note on a date
other than the last day of the Payment Period for such Note including, but not
limited to, acceleration of the Notes by the Agent hereunder.
2.03. Characteristics of Notes. The Notes shall be in the stated
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aggregate principal amount of $28,800,000.00 (which shall represent the amount
of the maximum commitment of the Lenders), shall be in registered form, in
substantially the form set forth in Annex A hereto, with blanks appropriately
filled in, shall bear interest at such rate, be payable as to principal and
interest on such date or dates, and shall contain such other terms and
provisions as shall be set forth herein and in the form set forth in Annex A.
The unpaid principal balance of the Notes shall be repaid on April 16, 2002.
2.04. Prepayment of Notes. The Lessor shall not be permitted to prepay
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the Notes except as set forth below.
(a) Mandatory Prepayment on Termination of Lease Agreement. Upon the sale
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of the Leased Premises pursuant to Section 15(a) or 16 of the Lease Agreement,
the Lessor shall on the last day of the Lease Term under the Lease Agreement
prepay the Notes in whole in an amount equal to the unpaid principal amount
thereof, together with all interest accrued thereon and any other amounts due
and payable to the Lenders under the Loan Agreement, and no amounts (including
sales proceeds) shall be distributed to the Equity Participant until all amounts
due and owing under the Notes have been paid in full.
(b) Mandatory Prepayment Upon Event of Loss or Certain Purchases of Leased
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Premises. Upon the occurrence of an Event of Loss with respect to some or all of
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the Leased Premises for which payment of Termination Value is due under Section
14(b) of the Lease Agreement or upon the purchase of any Leased Premises
pursuant to Section 15(c) of the Lease Agreement or pursuant to Section 4.10(b)
of the Agency Agreement, the Lessor shall, on the next date for which an
installment of principal is due on the Notes, prepay a principal amount of
Notes, together with interest accrued thereon, equal to 96% of the amount of the
payment of Termination Value in respect of such Event of Loss or purchase, as
the case may be, and any other amounts due and payable to the Lenders under the
Loan Agreement, and no amounts (including payments of Termination Value) shall
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be distributed to the Equity Participant until all amounts due and owing under
the Notes have been paid in full.
(c) Notice. Upon receipt by the Agent of notice from the Lessor or the
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Lessee of an event which shall result in a prepayment of the Notes, specifying
the principal amount of Notes to be prepaid, such principal amount of Notes,
together with accrued interest thereon, shall become due, with any other amounts
set forth in Section 2.04(d), on the date specified in the notice which in any
event shall be the last day of a Payment Period. Such notice shall be given to
Agent no later than five (5) London Business Days prior to the date of the
payment specified. In the event of any partial prepayment of the principal
amount of any Note pursuant to this Loan Agreement, the amount of each payment
of such Note becoming due, with any other amounts set forth in Section 2.04(d),
after application of such prepayment shall be adjusted by an appropriate
amendment to the payment schedules attached to each Note so that the principal
paid on each date for an installment of principal shall bear the same proportion
to the original amount payable on such date as the total unpaid balance bears to
the original balance unpaid on such date but for such prepayment and that, upon
the due payment of all payments thereafter, the entire unpaid principal amount
of and interest on such Note shall have been paid in full.
(d) Payment of Certain Sums. In each case under this Section 2.04, if the
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Lessor makes a prepayment, the Lenders shall be reimbursed on the date specified
in Section 2.04(c) or upon demand for any resulting loss or expense incurred by
such Lenders including, without limitation, any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such prepayment as such Lender shall have
determined and notified the Lessor, which determination shall be conclusive
provided it is made on a reasonable basis.
2.05. Register, Transfer, and Exchange of Notes.
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(a) Register. The Lessor shall maintain a register for the purpose of
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registration, and registration of transfer and exchange, of Notes, in which
shall be entered the names and addresses of the holders of such Notes and
particulars of the Notes held by them, respectively. The Lessor and Agent may
deem and treat the registered holder of any Note as the absolute owner of such
Note for the purpose of receiving payment of all amounts payable with respect to
such Note and for all other purposes.
(b) Transfer; Exchange. Subject to the restrictions on assignability of
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Notes contained in the Participation Agreement, a holder of any Note intending
to presentment to the Lessor duly endorsed for transfer by, or accompanied by a
written instrument of transfer duly executed by, the registered holder of such
Note, together with the written request of such registered holder and evidence
satisfactory to the Agent that such transfer complies with the applicable
provisions of the Participation Agreement, for the issuance of a new Note or
Notes, specifying the denomination or denominations of the same, the name and
address of the new registered holder or holders, and the information required in
order that the Agent may make wire transfer of payments on such Notes to or for
the account of such new holder or holders. Promptly upon such presentation, the
Lessor shall execute, authenticate and deliver such new Note or Notes, in the
principal amount equal to the unpaid principal amount or amounts of such Note or
Notes so surrendered, having the same terms and dated the same date as the Notes
so surrendered, in such denomination or denominations and registered in the name
or names of the transferee specified in the written request. The Lessor shall
make a notation on each transferred or exchanged Note of the amount of all
payments of principal and interest theretofore made, or the date to which such
payments have been made, on the Note so transferred or exchanged. Prompt
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notice of the foregoing shall be delivered by the Lessor to Agent. The holder of
the transferred or exchanged Note shall, at the time such transfer or exchange,
pay the Agent an administrative fee of $3,000 for each such transfer or
exchange.
(c) Replacement. If any Note shall be destroyed, mutilated, lost, or
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stolen, the Lessor shall, upon the written request of the registered holder of
such Note, execute and deliver in replacement thereof a new Note, payable in the
same original principal amount and dated the same date as the Note so destroyed,
mutilated, lost, or stolen. The Lessor may make a notation on each new Note of
the amount of all payments of principal and interest theretofore made, or the
date to which such payments have been made, on the Note so destroyed, mutilated,
lost or stolen. Prompt notice of the foregoing shall be delivered by the Lessor
to the Agent. If the Note being replaced has been mutilated, such Note shall be
delivered to the Lessor and shall be cancelled by it. If the Note being replaced
has been destroyed, lost, or stolen, the registered holder of such Note shall
furnish to the Lessor such indemnity agreement or bond as shall be reasonably
satisfactory to it together with evidence satisfactory to the Lessor of the
destruction, loss or theft of such Note and of the ownership thereof. If the
registered holder of such destroyed, lost, or stolen Note is a party to the
Participation Agreement or an Affiliate of any such Person, the written
statement of such party shall be sufficient proof of such destruction, loss or
theft and an indemnity agreement of such party signed by a duly authorized
officer thereof delivered to the Lessor shall be sufficient security and
indemnity.
2.06. Application of Payments Prior to an Event of Default. Prior
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to the occurrence of an Event of Default described in Section 5.01, the Agent
shall apply all Basic Rent, Supplemental Rent (other than Supplemental Rent
payable to the Agent or any Lender for reimbursement for its own account for
expenses or indemnities under Section 2.02(f), (g) or (h) hereof or payable
under the Lease Agreement or the Participation Agreement or pursuant to any
insurance policies maintained under Section 10 of the Lease Agreement) and
payments of Termination Value under the Lease Agreement to the payment of
principal and interest on the Notes ratably in accordance with the amount due
thereon without priority of any Notes over any other Notes.
2.07. Amendments of Lease Agreement; the Lessor Actions. The Lessor shall
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be entitled to receive, and the Agent agrees to send to the Lessor, copies of
all notices, demands, consents, approvals and waivers which may, from time to
time, be given or granted by the Agent to the Lessee pursuant to the provisions
of the Lease Agreement. Prior to the time that the Notes and other amount due
hereunder have been discharged, Agent and the Lenders shall be entitled to
receive, and the Lessor agrees to send to the Agent and the Lenders, copies of
all notices, demands, consents, approvals and waivers which may, from time to
time, be given or granted by the Lessor to the Lessee or received by the Lessor
from the Lessee pursuant to the provisions of the Lease Agreement; provided,
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that without the prior consent of each Lender and the Agent, the Lessor shall
not:
(a) modify or waive any provision of any Transaction Document
requiring the Required Lender's Consent or release any collateral (except
as otherwise specifically provided in any Transaction Document);
(b) reduce the amount or change the time of payment of any amount of
principal owing or interest owing or payable on any Note;
(c) modify, amend, waive or supplement any of the provisions of
Sections 15, 16, 19 and 20 of the Lease;
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(d) reduce, modify, amend or waive any indemnities in favor of any
Lender or Agent;
(e) reduce the amount or change the time of payment of Rent,
Termination Value or Supplemental Rent;
(f) consent to any assignment of the Lease releasing the Lessee from
its obligations to pay Rent, Termination Value or Supplemental Rent or
changing the absolute and unconditional character of such obligations; or
(g) permit the creation of any Lien on the Trust Estate or any part
thereof except as contemplated by the Transaction Documents, or deprive any
Lender of the benefit of the security interest and lien secured by the
Trust Estate.
2.08. Investment of Funds. The Agent shall hold all moneys received by it
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hereunder as to which no immediate application thereof is provided, and shall
invest such moneys in U.S. Treasury securities having maturities of no greater
than one year or in the commercial paper of any issuer rated in the highest
rating category by both Moody's Investors Service, Inc. and Standard & Poor's
Ratings Group. The earnings from any such investments, less the Agent's expenses
incurred in making such investments and any losses therefrom, shall be for the
account of the Person or Persons ultimately entitled to receive such moneys.
ARTICLE III
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Covenants of the Lessor
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The Lessor hereby covenants and agrees as follows:
(a) Payment of Principal and Interest. The Lessor shall duly and
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punctually pay (or cause to be paid) to Agent the principal of and interest
on the Notes in accordance with the terms thereof and this Loan Agreement
when such payments shall become due, including, but not limited to,
mandatory prepayments hereunder;
(b) Liens. The Trust Estate shall be and shall remain free and clear
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of the Lessor Liens and the Lessor shall take such action as may be
necessary to discharge any the Lessor Liens;
(c) Lease and Other Obligations. The Lessor shall faithfully abide by,
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perform and discharge each and every obligation, covenant and agreement
that the Lease Agreement and the Participation Agreement provide are to be
performed by the Lessor; the Lessor shall upon the prior written request of
the Agent, at the expense of the Lenders to the extent not paid or
reimbursed by the Lessee, enforce any or all of its rights as the Lessor
under the Lease Agreement and the Participation Agreement; without the
Required Lenders' Consent, the Lessor shall not anticipate the rents under
the Lease Agreement or waive, excuse, condone, forgive or in any manner
release or discharge the Lessee thereunder of or from the obligations,
covenants, conditions and agreements to be performed by the Lessee that are
intended to satisfy the Lessor obligations or to preserve and protect the
interest of Lenders in the Lease Agreement and the Leased Premises,
including, without limitation, the obligation to make payments in the
manner and at the time and place specified in the Lease Agreement, or
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enter into any agreement or take any action the result of which would be to
amend, modify or terminate the Lease Agreement or the obligations of the
Lessee thereunder;
(d) Transfers. The Lessor shall not sell, assign or transfer its
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rights under this Loan Agreement or in or to the Trust Estate, except as
may be permitted by the express provisions of Article V of the
Participation Agreement;
(e) Lease Termination Remedies. Unless and until the Notes and all
--------------------------
other obligations of the Lease hereunder have been discharged, the Lessor,
without the consent of each of the Lenders, shall not terminate the Lease
Agreement, or otherwise exercise the remedies available under the Lease
Agreement against the Lessee or the Leased Premises; and
(f) Defaults. The Lessor shall promptly notify the Lenders of any
--------
Event of Default hereunder or under the Lease Agreement of which the Lessor
shall have knowledge.
ARTICLE IV
----------
Limitation of Liability
-----------------------
Notwithstanding anything in this Loan Agreement or any Mortgage and
Assignment Agreement to the contrary, the liability of the Lessor for all
payments to be made under and pursuant to the Notes, hereunder and thereunder
and the performance of all other obligations hereunder and under any other
Transaction Document shall not exceed an amount equal to, and shall be payable
only out of, the Income and Proceeds from the Trust Estate. As used herein the
term "Income and Proceeds from the Trust Estate" shall mean
(i) if an Event of Default shall have occurred and while it shall be
continuing so much of the following amounts as are indefeasibly received by
the Lessor or Agent or Lenders as assignee of the Lessor at any time after
the occurrence of such Event of Default and during the continuance thereof:
(A) all payments and any other sums due and to become due under the Lease
Agreement except Excluded Amounts, and (B) any and all other payments or
proceeds received pursuant to the Lease Agreement or for or with respect to
the Trust Estate as the result of the sale, lease or other disposition
thereof, after deducting all costs and expenses of such sale, lease or
other disposition; and
(ii) at any other time only that portion of the amounts referred to in
the foregoing clause (i) or otherwise payable to the Lessor pursuant to the
Lease Agreement as are indefeasibly received by the Lessor, the Agent or
the Lenders as assignee of the Lessor and as shall equal the payments
specified in clause (a) of Article III hereof due and payable by the Lessor
on the date such amounts so received were required to be paid pursuant to
the Lease Agreement or as shall equal any other payments (including
payments in respect of loss or destruction of the Leased Premises and early
termination of the Lease Agreement) then due and payable under this Loan
Agreement.
The Lessor shall not be liable for any deficiency arising out of the sale by the
Lessor of all or any portion the Leased Premises pursuant to the Lease Agreement
and the Lenders agree to look only to the Trust Estate and the rights of the
Lessor against the Lessee under the Lease Agreement and the Participation
Agreement for the amount of such deficiency. Each Lender agrees that if it
obtains a judgment against the Lessor for an amount in excess of the amounts
payable by the Lessor pursuant to
9
the limitations set forth in this Article IV, it will, accordingly, limit its
execution of such judgment to such amount and it will not bring suit against the
Lessor for any sums in addition to the amounts payable by the Lessor pursuant to
said limitations (or obtain a judgment, order or decree against the Lessor for
any relief other than the payment of money) except as may be required by
applicable rules of procedure to enforce against the Trust Estate and the Lessee
(rather than against the Lessor personally), by appropriate proceedings against
obligee at law or in equity or otherwise, the obligation to make the payments
due to such Lender under the Notes and this Loan Agreement. Nothing contained
herein limiting the liability of the Lessor shall derogate from the right of the
Agent on behalf of the Lenders to proceed against the Trust Estate or the Lessee
(to the extent of the Lessor's rights against the Lessee under the Lease
Agreement and the Participation Agreement) as provided for herein or in the
Mortgage and Assignment Agreements for the full unpaid principal amount of the
Notes and interest thereon, or to proceed against the Lessor for damages and
exercise other remedies for breach of the covenants of this Loan Agreement
(subject to the aforesaid limitations) or the inaccuracy of the representations
and warranties of the Lessor contained herein or in the Participation Agreement.
ARTICLE V
---------
Events of Default; Remedies
---------------------------
5.01. Events of Default. If any of the following events (each such
-----------------
event being hereinafter referred to as an "Event of Default") shall have
occurred (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary) and be continuing:
(a) failure to pay principal or interest or make any mandatory
prepayment of principal on the Notes when due (except to the extent
attributable to any failure of Agent to pay any amount due to holders of
Notes on account of interest pursuant to Section 2.02(c) hereof) and such
failure shall continue unremedied for three (3) Business Days; or
(b) an "Event of Default" under the Lease Agreement shall have
occurred and be continuing; or
(c) the Lessor shall become insolvent or bankrupt or make an
assignment for the benefit of creditors or consent to the appointment of a
trustee or receiver; or a trustee or a receiver shall be appointed for the
Lessor or for a substantial part of the Lessor's property without the
Lessor's consent and shall not be dismissed within a period of ninety (90)
days; or bankruptcy, reorganization or insolvency proceedings shall be
instituted by or against the Lessor and, if instituted against the Lessor,
shall not be dismissed for a period of thirty (30) days; or
(d) the Lessor shall fail to observe any covenant contained in clause
(c) or (d) of Article III hereof and such failure shall continue for a
period of ten days after written notice thereof;
then, the Agent, upon receipt of the Required Lenders' Consent shall, by notice
to the Lessor and the Lessee, declare the unpaid principal amount of the Notes,
interest accrued thereon and all other amounts owing by the Lessor hereunder,
under the Notes or under any other Transaction Document to be immediately due
and payable without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived, and an action therefor shall
immediately accrue;
10
provided, however, that in the event of an actual or deemed entry of an order
- --------
for relief with respect to the Lessor under the Federal Bankruptcy Code, (x) the
obligation of any Lender to make loans hereunder shall automatically terminate
and (y) the Notes, all interest thereon and all other amounts payable hereunder
shall automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Lessor; the Agent shall, upon receipt of the Required Lenders' Consent, be
entitled and empowered to institute such action or proceedings at law or in
equity for the collection of any amounts due and unpaid as shall be consistent
with such Required Lenders' Consent, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Lessor and collect in the manner provided by law out of
the Trust Estate, wherever situated, the moneys adjudged or decreed to be
payable (subject to the provisions of Article IV hereof).
5.02. Specific Remedies. Upon the occurrence and during the continuance
-----------------
of an Event of Default, the Agent may, and upon receipt of the Required Lenders'
Consent and indemnification reasonably satisfactory to the Agent, shall:
(i) take any and all action available to a creditor to recover from
the Lessor (subject to the limited recourse provisions contained herein and
in the Notes) all amounts then due and payable by the Lessor under the
Notes or otherwise to each Lender; or
(ii) exercise any and all of the rights remedies available to it
against the Trust Estate under the Mortgage and Assignment Agreements; or
(iii) subject to the rights of the Lessee under the Lease Agreement,
exercise, as assignee of the Lessor any and all of the rights and remedies
of the Lessor under the Lease Agreement;
provided, however, that if the only Event of Default which has occurred and is
- -------- -------
continuing hereunder is an Event of Default described in Section 5.01(b) hereof
or any other Event of Default which has resulted from an Event of Default
described in Section 5.01(b) hereof (such Events of Default called "the Lessee
Defaults"), the Agent shall be entitled to exercise a right or remedy hereunder
only if it concurrently pursues, to the extent it has not already done so and is
then entitled to do so hereunder and under the Lease Agreement and is not then
stayed against the Lessee or otherwise prevented from doing so by operation of
law, one or more remedies available to the Agent as assignee of the Lessor's
interest in the Lease Agreement.
Written notice shall be given by the Agent to the Lessor of any election by
the Agent to retain the Trust Estate.
5.03. Application of Proceeds. If an Event of Default shall have occurred
-----------------------
and be continuing and the Agent shall exercise any of the powers conferred upon
it by Sections 5.01 and 5.02 hereof, all payments made by the Lessor to the
Agent hereunder after such Event of Default, and the proceeds of any judgment
collected hereunder from the Lessor by the Agent, and the proceeds of every sale
by the Agent of any of the Trust Estate, together with any other sums which may
then be held or obtained by the Agent or the Lenders under any of the provisions
hereof or any other Transaction Document, shall be applied by the Agent to the
payment in the following order of priority: (i) of all proper charges, expenses
(including without limitation all reasonable attorney's fees) or advances made
or incurred by the Lenders or the Agent or, in the case of an Lessee Default,
the Lessor in the exercise of the Lenders', the Agent's or the Lessor's remedies
hereunder or under any other Transaction Document, (ii) of the interest then due
on the Notes, ratably and without
11
priority of any Notes over any other Notes, with interest on overdue interest at
the Late Payment Rate to the extent legally enforceable, and (iii) of the
principal of all outstanding Notes, without priority as aforesaid, with interest
thereon at the Late Payment Rate to the extent legally enforceable from the
first date on which such principal was due and not paid, whether such Notes
shall have then matured by their terms or not.
If after applying as aforesaid the sums of money realized by the Agent on
behalf of Lenders there shall remain a surplus in the possession of the Agent,
such surplus shall be paid to the Lessor.
5.04. Rescission. If, at any time after the outstanding principal
----------
amount of the Notes shall have become due and payable by acceleration pursuant
to Section 5.01 hereof, no judgment for any amount so becoming due shall have
been entered and the Collateral has not been sold or otherwise disposed of in
the exercise of remedies hereunder, (i) all amounts of principal and interest on
the Notes which have become due otherwise than pursuant to Section 5.01 hereof,
together with interest on all such overdue principal and, to the extent
permitted by law, interest at the Late Payment Rate and an amount sufficient to
cover all costs and expenses of collection of Agent and the Lenders shall have
been paid in full and (ii) every other Event of Default shall have been cured or
waived, then the Agent may, with the Required Lenders' Consent, and by notice to
the Lessor and the Lessee, rescind and annul such acceleration and any related
declaration of acceleration under the Lease Agreement and their related
consequences, but no such rescission and annulment shall extend to or affect any
subsequent Event of Default hereunder or under the Lease Agreement or impair any
right consequent thereon.
5.05. Rights and Remedies Cumulative; No Waiver. Each and every right,
-----------------------------------------
power and remedy herein specifically given to the Agent or any or all of the
Lenders under this Loan Agreement shall be cumulative and shall be in addition
to every other right, power and remedy herein specifically given or now or
hereafter existing at Law, in equity or by statute, and each and every right,
power and remedy whether specifically herein given or otherwise existing may be
exercised from time to time and as often and in such order as may be deemed
expedient by the Agent, and the exercise or the beginning of the exercise of any
power or remedy shall not be construed to be a waiver of the right to exercise
at the same time or thereafter any other right, power or remedy. No delay or
omission by the Agent or the Lenders in the exercise of any right, remedy or
power or in the pursuance of any remedy shall impair any such right, power or
remedy or be construed to be a waiver of any default on the part of the Lessor
or the Lessee or to be an acquiescence therein. No waiver in respect of any
Event of Default shall extend to any subsequent or other Event of Default.
5.06. Restoration of Rights and Remedies. In case the Lenders shall
----------------------------------
have directed the Agent to proceed to enforce any right, power or remedy under
this Loan Agreement by foreclosure, entry or otherwise, and such proceedings
shall have been discontinued or abandoned for any reason or shall have been
determined adversely to the Agent or the Lenders, then and in every such case
the Lessor, the Agent and the Lenders shall be restored to their former
positions and rights hereunder with respect to the Trust Estate, and all rights,
remedies, and powers of the Agent and the Lenders shall continue as if no such
proceedings had been taken.
5.07. Compliance with Law. The foregoing provisions of this Article V
-------------------
are subject in all respects to all mandatory legal requirements at the time in
force and applicable.
12
ARTICLE VI
----------
Agent
-----
6.01. Appointment. The Lenders hereby appoint Credit Lyonnais New York
-----------
Branch to act as the Agent as herein specified for the Lenders hereunder. Each
of the Lenders by its execution and delivery of the Participation Agreement
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agent to take such action on
its behalf under the provisions of this Loan Agreement and any other Transaction
Document, or other instruments and agreements referred to herein or therein, and
to exercise such powers and to perform such duties hereunder and thereunder, as
are specifically delegated to or required of the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. Credit
Lyonnais New York Branch agrees to act as the Agent on behalf of the Lenders to
the extent provided in this Loan Agreement.
6.02. Delegation of Duties. The Agent may perform any of its duties
--------------------
hereunder by or through agents or employees and shall be entitled to rely on the
advice of independent counsel concerning all matters pertaining to its duties
hereunder and thereunder.
6.03. Nature of Duties; Independent Credit Investigation. The Agent shall
--------------------------------------------------
have no duties or responsibilities except those expressly set forth in this Loan
Agreement and the Participation Agreement. The duties of the Agent shall be
mechanical and administrative in nature. The Agent shall not have by reason of
this Loan Agreement or any Transaction Document a fiduciary relationship in
respect of any Lender and nothing in this Loan Agreement or any Transaction
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this Loan Agreement or any
Transaction Document except as expressly set forth herein or therein. Each
Lender expressly acknowledges (i) that the Agent has not made any
representations or warranties to it and that no act by the Agent hereafter taken
shall be deemed to constitute any representation or warranty by the Agent to any
Lender; (ii) that it has made and will make its own independent investigation of
the financial condition and affairs, and its own appraisal of the
creditworthiness of the Lessor and the Lessee, in connection with this Loan
Agreement; (iii) that it has made its own independent investigation of the legal
matters relating to this Loan Agreement, the Transaction Documents and the Notes
to be issued to it hereunder; and (iv) that the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any the
Lender with any information, except for notices, reports or other information,
if any, expressly required to be furnished to the Lenders by the Agent
hereunder.
6.04. Actions in Discretion of the Agent; Required Lenders' Consent.
-------------------------------------------------------------
The Agent agrees, upon receipt of the Required Lenders' Consent and indemnity
reasonably satisfactory to it, to take any action of the type specified therein
so long as the same is not inconsistent with the other Transaction Documents.
The Agent shall take, or refrain from taking, such action hereunder in
accordance with the Required Lenders' Consents. In the absence of receipt of the
Required Lenders' Consent, the Agent shall take no action and shall not be
subject to any liability, penalty, cost or expense for such inaction. Any action
taken or failure to act pursuant to such Required Lenders' Consent shall be
binding on the Lenders and on all holders of Notes. No Lender shall have any
right of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting hereunder in accordance with the Required Lenders'
Consent, or in the absence of the Required Lenders' Consent, in the absolute
discretion of Agent, subject to the provisions of Section 6.05 hereof.
13
6.05. Exculpatory Provisions. Neither the Agent nor any of its directors,
----------------------
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by it hereunder or under the Notes or Transaction
Documents, or in connection herewith or therewith, unless caused by its own
gross negligence or willful misconduct. In performing its functions and duties
hereunder on behalf of Lenders, the Agent shall exercise the same care which it
would exercise in dealing with loans for its own account, but it shall not (i)
be responsible in any manner to any of the Lenders for the effectiveness,
enforceability, genuineness, validity or the due execution of this Loan
Agreement, the Transaction Documents or any of the Notes, or for any recital,
representation, warranty, document, certificate, report or statement herein or
therein made or furnished under or in connection with this Loan Agreement or
(ii) be under any obligation to any of the Lenders to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions
hereof or thereof on the part of the Lessor, the Lessee or any other Person, or
the financial condition of the same or the existence or possible existence of
any Event of Default or Unmatured Event of Default.
6.06. Reimbursement and Indemnification. Each holder of Notes shall
---------------------------------
reimburse and indemnify the Agent to the extent not reimbursed by the Lessee
(and without limiting the obligation of the Lessee), ratably in the proportion
which the sum of the principal balance of Notes then held by such holder bears
to the sum of the then outstanding principal balance of the Notes, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent, in its capacity as such, in any way relating to or arising out of this
Loan Agreement, the Transaction Documents, the Notes or any action taken or
omitted by the Agent hereunder or thereunder, provided, that no holder shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent that the same result from the Agent's gross negligence or willful
misconduct.
6.07. Reliance by the Agent. The Agent shall be entitled to rely upon
---------------------
any writing, telegram, telex or teletype message, resolution, notice, consent,
certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper party or parties, and upon
opinions of counsel and other professional advisers selected by the Agent.
Subject to Section 6.05 hereof, the Agent shall be fully justified in failing or
refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
6.08. Individual Capacity. With respect to this Loan Agreement and the
-------------------
Notes held by it, Credit Lyonnais, as a Lender shall have the same rights and
powers hereunder as any other holder of a Note and may exercise the same as
though it were not the Agent, and the term, "Lenders" shall, unless the context
hereof otherwise indicates, include Credit Lyonnais in its individual capacity.
6.09. Holders of Notes. The Agent may deem and treat the payee of
----------------
any Note as the owner of such Note for all purposes hereof unless and until
written notice of the assignment or transfer thereof shall have been filed with
the Agent in accordance with Section 2.06 hereof. Any request, authority or
consent of any party who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
14
6.10. Successors. The Agent may resign at any time by giving written
----------
notice thereof to the Lenders. Upon any such resignation, the holders of the
Notes, by execution and delivery of a Required Lenders' Consent, shall agree
upon a successor Agent. If no successor Agent shall have been so agreed upon and
appointed, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation, then the retiring Agent, any
holder of a Note or the Lessor may petition (or in the absence of such petition,
the Lessee may petition) a court of competent jurisdiction to appoint a
successor Agent which shall be a commercial bank organized under the Laws of the
United States of America or any state thereof, having a combined capital and
surplus of at least $250,000,000. Upon the acceptance by a successor Agent of
its appointment as Agent hereunder, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties under
this Loan Agreement. After any retiring Agent's resignation hereunder as the
Agent, the provisions of this Article VI shall inure to its benefit as to any
actions taken or omitted by it while it was the Agent under this Loan Agreement.
6.11. Distributions to the Lenders. The Agent agrees that all sums paid
----------------------------
by the Lessee to the Agent under any Transaction Document for distribution to
the holders of Notes pursuant hereto, and any other proceeds of the Collateral
or any portion thereof (i) shall, until paid to the holders of Notes in
accordance with the provisions hereof, be held by the Agent for the benefit of
the holders of Notes, and (ii) if received by the Agent prior to 12:00 Noon, New
York City Time, shall be disbursed to holders of Notes no later than 4:00 P.M.
on the same Business Day, and if received by the Agent after 12:00 Noon, New
York City Time, shall be disbursed to holders of Notes no later than 4:00 P.M.
on the next succeeding Business Day.
ARTICLE VII
-----------
Miscellaneous
-------------
7.01. Notices. Any notice required or permitted under this Loan Agreement,
-------
or by law in respect of this Loan Agreement, shall be in writing and shall be
deemed effective, when personally delivered or if sent by registered or
certified mail, three Business Days after the date of delivery to the post
office, or if sent by overnight delivery (express mail or overnight courier),
when received, or if sent by telex or telecopy, upon receipt, in each case
addressed to the Person required to receive the same at the address stated on
the signature pages of the Participation Agreement or in accordance with the
last unrevoked written direction from such Person to the other parties hereto.
7.02. Survival. All covenants, agreements, indemnities, representations,
--------
and warranties contained in this Loan Agreement, or any document, agreement, or
certificate delivered pursuant hereto shall survive the expiration or other
termination of this Loan Agreement.
7.03. Amendments and Waivers. The terms of this Loan Agreement shall
----------------------
not be waived, altered, modified, amended, supplemented, or terminated in
any manner whatsoever except by written instrument signed by the Lessor and the
Agent following receipt of the Required Lenders' Consent; provided, however,
that no such amendment shall revise or delete Sections 2.06, 2.07, 5.03 hereof
or this Section 7.03 without the prior written consent of the holders of a
majority in principal amount of the Notes.
15
7.04. Entire Agreement. This Loan Agreement and the other agreements and
----------------
documents referred to herein constitute the final and entire expression of the
agreement of the parties with respect to the matters contemplated hereby.
7.05. Governing Law. This Loan Agreement shall be governed by, and
-------------
construed in accordance with, the Laws of the State of New York.
7.06. Non-Recourse To Certain Parties. This Loan Agreement is solely
-------------------------------
a corporate obligation and no recourse shall be had in respect of any
obligation, covenant, or agreement of this Loan Agreement, or referred to
herein, against any stockholder, incorporator, director, or officer, as such,
past, present, and future, of the parties hereto by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of statute or
otherwise.
7.07. Invalidity of Provisions. Any provision of this Loan Agreement
------------------------
which may be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.08. Counterparts. This Loan Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, all
of which together shall constitute a single agreement.
7.09. Effectiveness. Although this Loan Agreement is dated as of the date
-------------
first above written for convenience, the actual dates of execution hereof by the
parties hereto are respectively the dates set forth under the signatures hereto,
and this agreement shall be effective on the latest of such dates.
7.10. Headings. Any headings or captions preceding the individual sections
--------
hereof are intended solely for the convenience of the parties and shall not
alter or vary the meaning, construction or effect of this Loan Agreement.
7.11. Holders of Notes. All representations, warranties, covenants, and
----------------
agreements contained herein shall be binding on, and shall inure
to the benefit of, each Lender and any registered transferee of any Lender as
holder of a Note or Notes. Any request, notice, direction, consent, waiver or
other instrument or action by any holder of a Note or Notes shall bind the
successor and assigns of such holder.
7.12. Successors and Assigns. The provisions of this Loan Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, subject to Section 2.05 hereof and the
provisions of the Participation Agreement.
16
IN WITNESS WHEREOF the parties hereto have each caused this Loan Agreement
to be duly executed by their respective officers thereunto duly authorized.
FLEET NATIONAL BANK,
not in its individual capacity (except as
expressly stated above) but solely as Owner
Trustee under the Trust Agreement
By: /s/ Elizabeth C. Hammer
-----------------------
Elizabeth C. Hammer
Vice President
Date:
-----------------------
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent
By: /s/ David Fink
-----------------------
David Fink
Vice President
Date:
-----------------------
CREDIT LYONNAIS LOS ANGELES
BRANCH, as Lender
By: /s/ Dianne M. Scott
-----------------------
Dianne M. Scott
Vice President and Manager
Date:
-----------------------
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By: /s/ Dana C. Fenwick
-----------------------
Dana C. Fenwick
Its: Vice President
-----------------------
CIBC INC., as Lender
By: /s/ Daniel H. Hom
-----------------------
Daniel H. Hom
Its: Director, CIBC Wood Gundy
Securities Corp. AS AGENT
BANQUE NATIONALE DE PARIS,
as Lender
By: /s/ C. Bettles
-----------------------
C. Bettles
Its: Sr. V..P. & Manager
-----------------------
By: /s/ J. L. Tourne
-----------------------
J. L. Tourne
Its: V.P. & Deputy Manager
-----------------------
THE STATED PRINCIPAL AMOUNT OF THIS NOTE REPRESENTS
THE MAXIMUM AMOUNT THEREOF PAYABLE TO THE HOLDER
HEREOF AND MAY NOT CORRESPOND TO THE ACTUAL UNPAID
PRINCIPAL BALANCE HEREOF.
THE AMOUNT OF THE UNPAID PRINCIPAL BALANCE AT ANY
TIME MAY BE OBTAINED FROM THE OWNER TRUSTEE.
FLEET NATIONAL BANK,
not in its individual capacity but solely as Owner Trustee
under Trust Agreement dated as of April 16, 1997
NON-RECOURSE PROMISSORY NOTE DUE APRIL 16, 2002
New York, N.Y.
$__________ April 16, 1997
FOR VALUE RECEIVED, the undersigned, not in its individual capacity but
solely as Owner Trustee (herein in such capacity called the "Owner Trustee")
under that certain Trust Agreement dated as of April 16, 1997, between the
Equity Participant named therein and FLEET NATIONAL BANK ("the Lessor"), hereby
promises to pay, to the order of [CREDIT LYONNAIS LOS ANGELES BRANCH]
(hereinafter together with any other holder hereof referred to as the "Holder"),
the maximum principal amount of $__________ in lawful money of the United States
and in immediately available funds. Interest shall accrue from the date of this
Note on the outstanding principal amount hereof in accordance with the Loan
Agreement and shall be payable on such dates and in such amounts as determined
in accordance with the Loan Agreement. Unless sooner paid, by reason of
acceleration or otherwise, the entire unpaid balance of this Note, together with
interest accrued thereon, shall be due and payable on April 16, 2002. All such
payments of principal and interest shall be made to such place or places and to
such account or accounts as Holder shall direct by written notice to the Lessor.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the Loan Agreement dated as of April 16, 1997 between the Lessor,
the Lenders named therein, and Credit Lyonnais New York Branch as the Agent (the
"Loan Agreement") as to which reference is hereby made for a statement of the
terms, conditions and covenants under which the indebtedness evidenced hereby
was and will be made and is to be repaid, including, among others, those related
to the acceleration of the indebtedness represented hereby upon the occurrence
of an Event of Default or the mandatory prepayment of any of the indebtedness
represented hereby as provided in the Loan Agreement. This Note is not subject
to prepayment except as provided in the Loan Agreement. All capitalized terms
used herein and not defined herein shall have the respective meanings ascribed
thereto in the Loan Agreement.
This Note is secured by Trust Estate as provided in the Loan Agreement and
Mortgage and Assignment Agreements.
This Note is a non-recourse obligation of the Owner Trustee, and all
payments of principal and interest to be made by the Owner Trustee on this Note
shall be made only from the Income and Proceeds from the Trust Estate. The
Holder hereof, by its acceptance of this Note, agrees that it will
look solely to the Income and Proceeds from the Trust Estate to the extent
available for distribution to the Holder hereof and that the Lessor shall not be
personally liable to the Holder hereof for any amounts payable under this Note
or, except as expressly provided in the Loan Agreement, for any liability under
the Loan Agreement or the other Transaction Documents.
This Note is a registered Note and may be transferred only by registration
of transfer as provided in Section 2.05 of the Loan Agreement. THIS NOTE IS ALSO
SUBJECT TO ADDITIONAL TRANSFER RESTRICTIONS SET FORTH IN THE PARTICIPATION
AGREEMENT DEFINED IN THE SECOND "WHEREAS" CLAUSE OF THE LOAN AGREEMENT.
To the extent permitted by applicable law, the Lessor waives notice,
presentment, and demand.
This Note shall be governed by the laws of the State of New York without
giving effect to the principles of conflicts of law.
FLEET NATIONAL BANK,
not in its individual capacity, but solely as
Owner Trustee under the Trust Agreement
By:
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