1
EXHIBIT 10.10C
--------------------------------------------------------------------------------
LOAN AGREEMENT
Dated as of January 10, 1997
between
ASSET XI HOLDINGS COMPANY, L.L.C.,
as Lessor and Borrower
and
BANK ONE, TEXAS, N.A.,
as Lender
--------------------------------------------------
Lease Financing
for Eagle USA Airfreight, Inc.
Corporate Headquarters and Warehouse Facility
Xxxxxx County, Texas
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
(Loan Agreement)
Page
----
SECTION 1 DEFINITIONS; INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2 AMOUNT AND TERMS OF COMMITMENT; REPAYMENT AND PREPAYMENT OF LOAN . . . . . . . . . . . . . . . . . . 1
SECTION 2.1 Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.2 Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.3 Scheduled Principal Repayment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.4 Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.5 Interest on Overdue Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.6 Discretion of Lenders as to Manner of Funding . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN PAYMENTS IN RESPECT OF LEASE AND LEASED
PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.1 Distribution and Application of Rent Payments. . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.2 Distribution and Application of Purchase Payment. . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.3 Distribution and Application of Lessee Payment
of Recourse Deficiency Amount Upon Exercise of
Remarketing Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.4 Distribution and Application of Remarketing Proceeds of Leased Property. . . . . . . . . . 7
SECTION 3.5 Distribution and Application of Payments Received When an Event of Default Exists or
Has Ceased to Exist Following Rejection of the Lease. . . . . . . . . . . . . . . . . . . . 8
SECTION 3.6 Distribution of Other Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3.7 Reinvestment Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.1 Covenant of Lessor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain Lease Obligations and Certain
Proceeds of Leased Property Only . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.3 Exercise of Remedies Under Lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.1 Loan Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.2 Loan Event of Default; Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(i)
3
Page
----
SECTION 6.1 Amendments and Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.3 No Waiver; Cumulative Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.4 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.6 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.7 Survival and Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.8 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.9 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.10 No Recourse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.11 Limitation on Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6.12 Waiver of Consumer Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
APPENDIX I Definitions and Interpretation
APPENDIX II Form of Note
APPENDIX III Schedule of Loan Payments
(ii)
4
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of January 10, 1997, is between ASSET XI
HOLDINGS COMPANY, L.L.C., a Massachusetts limited liability company, as Lessor
and Borrower, and BANK ONE, TEXAS, N.A., a national banking association, as
Lender.
PRELIMINARY STATEMENT
In accordance with the terms and provisions of this Loan Agreement,
the Participation Agreement, the Lease and the other Operative Documents, (i)
the Lessor has acquired a leasehold interest in the Land and leased the Land to
the Lessee, (ii) the Lessee has agreed to construct the Improvements on the
Land for the Lessor and to lease the Improvements from the Lessor as part of
the Leased Property under the Lease, (iii) the Lessor now wishes to obtain, and
the Lender is willing to provide, funding in the amount of up to $7,600,000 for
the acquisition of the Land and the construction of the Improvements.
NOW, THEREFORE, in consideration of the mutual agreements contained in
this Loan Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1 DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix I
hereto for all purposes hereof and the rules of interpretation set forth in
Appendix I hereto shall apply to this Loan Agreement.
SECTION 2 AMOUNT AND TERMS OF COMMITMENT; REPAYMENT AND
PREPAYMENT OF LOAN
SECTION 2.1 Commitment. Subject to the terms and conditions hereof
and of the Participation Agreement, the Lender agrees to make available to the
Lessor a term loan to the Lessor (the "Loan") in an amount not to exceed the
Loan Commitment in order to finance costs of the acquisition of an interest in
the Land, the construction of the Improvements and the Development Costs as
provided in Section 2.6 of the Participation Agreement. As provided in Section
2.2 of the Participation Agreement, the Lender shall from time to time make
Loan Advances to the Lessee acting on behalf of the Lessor, either pursuant to
a Funding Requisition substantially in the form attached to the Participation
Agreement as Appendix II or, in the case of interest due on the Loan on each
Loan Payment Date to and including the Completion Date, pursuant to the
procedure provided in Section 2.2(c) of the Participation Agreement.
SECTION 2.2 Note. The Loan shall be evidenced by the promissory note
of the Lessor (the "Note"), substantially in the form of Appendix II with
appropriate insertions, duly executed by the Lessor, payable to the order of
the Lender. The Note shall be dated the Closing Date
5
and delivered to the Lender in accordance with Section 3.1 of the Participation
Agreement. The Note, and Loan Advances made from time to time in respect
thereof, shall (i) be stated to mature on the Lease Termination Date, (ii) bear
interest on the unpaid principal amount thereof from time to time outstanding
at the interest rates determined as provided, and payable as specified, in
Section 2.4 and (iii) be payable as to principal as provided in Section 2.3.
Upon the occurrence of an Event of Default under clause (g) of Article XIII of
the Lease, or upon an Acceleration as described in Section 15.3 of the Lease,
the Note shall automatically become due and payable in full.
SECTION 2.3 Scheduled Principal Repayment. On the nineteenth (19th)
Loan Payment Date and on each Loan Payment Date thereafter, the Lessor shall
make payments on account of the principal balance of the Loan in the amount of
the principal installments set forth in Appendix III attached hereto, provided,
however, that if such Loan Payment Date is not also the last day of an Interest
Period (i.e. with respect to an Interest Period having a duration longer than
one month), the Lender shall deposit such funds in the Reinvestment Account and
hold such funds for application in reduction of the principal balance of the
Loan on the last day of the then-current Interest Period. Pursuant to the
Lease, the Lessee is obligated to pay Scheduled Rent in respect of such
principal as the same becomes due under this Loan Agreement. The Lender shall
apply such amounts as determined in Section 3.1 hereof. Lender shall maintain
Appendix III attached hereto and the schedule of principal installments payable
on each Loan Payment Date set forth thereon is subject to revision by the
parties hereto in the circumstances and according to the guidelines for
adjustments to Appendix III of the Lease set forth in Section 4.1 thereof.
Except in connection with an early payment or acceleration of Basic Rent or the
Lease Termination Date under the Lease due to (i) an Event of Default under the
Lease, (ii) an Acceleration, (iii) the Lessee's exercise of the Purchase
Option, (iv) the Lessee's exercise of the Remarketing Option, or (v) the
receipt of amounts under the Lease in respect of a Casualty or a Condemnation,
the Lessor shall have no option or right, without the prior consent of the
Lender, to prepay the Loan whether in whole or in part.
SECTION 2.4 Interest.
(a) Loan Advances. Except as otherwise provided with respect to
Loan Advances made in relation to interest due and payable on the Note pursuant
to Section 2.2 (c) of the Participation Agreement, each Loan Advance shall be
made in the form of a LIBOR Rate Loan, unless (i) the Lessee shall make an
election pursuant to a Funding Requisition for the Loan Advance to be in the
form of a Base Rate Loan, (ii) the Funding Date requested therein shall be a
date other than the first day of an Interest Period, or (iii) the Lender shall
have given notice of the occurrence of the circumstances described in Section
2.4 (f)(i) or Section 2.4 (f)(iii) hereof, in any of which cases such Loan
Advance will be in the form of a Base Rate Loan. The aggregate unpaid
principal amount of the Base Rate Loans and the LIBOR Rate Loans at any one
time outstanding shall not exceed the Loan Commitment.
Each Loan Advance shall be made pursuant to a Funding Requisition
executed and delivered by Lessee to Lender pursuant to Section 2.2 of the
Participation Agreement, which
- 2 -
6
Funding Requisition shall specify (a) the total amount of the Loan Advance (b)
the Funding Date of the Loan Advance, and (c) if applicable, whether the Lessee
elects that the Loan Advance is to be a Base Rate Loan.
(b) Interest. Subject to the provisions of Section 6.11 hereof,
the Lessor shall pay interest (computed, to the extent such computation would
not result in interest in excess of that which is permitted by Applicable Law,
using the actual number of days elapsed and a 360-day year) on the unpaid
principal amount of each Loan Advance from the Funding Date of each such Loan
Advance, at the following rates per annum, not exceeding in either case the
highest rate permitted by Applicable Law:
(i) Base Rate Loans. With respect to each Base Rate
Loan, a rate per annum equal at all times to the Base Rate in effect
from time to time, payable monthly on each Loan Payment Date; and
(ii) LIBOR Rate Loans. With respect to each LIBOR Rate
Loan, a rate per annum (the "Applicable LIBOR Rate") (A) during each
Interest Period commencing prior to the Completion Date, equal to the
Interim LIBOR Rate and (B) during each Interest Period commencing on
and after the Completion Date, equal to the sum of the Adjusted LIBOR
Rate for such Interest Period plus 1.45% per annum, payable monthly on
each Loan Payment Date.
(c) Conversion and Continuation of Loans. Five Business Days
prior to the beginning of each Interest Period, the Lessee may request that the
Lender determine the Adjusted LIBOR Rate applicable to such Interest Period and
the Lender shall notify the Lessee of such Adjusted LIBOR Rate. Each LIBOR
Rate Loan shall automatically be continued for another Interest Period of the
same duration, unless the Lessee shall elect to convert all or any part thereof
to a Base Rate Loan by written notice to the Lender given on any day which is
at least three Business Days before the beginning of the next succeeding
Interest Period. Except to the extent that the Base Rate applies as a result
of any circumstance described in Section 2.4 (f) hereof, the Lessee may elect
to convert any Base Rate Loan to a LIBOR Rate Loan, (i) if a LIBOR Rate Loan
shall be outstanding at the time of such election, effective on the first day
of the next succeeding Interest Period, or (ii) if no LIBOR Rate Loan shall be
outstanding at the time of such election, effective on any date at least three
but not more than five Business Days after such election. Prior to the
Completion Date, unless the Lessee shall notify the Lender to the contrary and
except in the event that the Base Rate applies as a result of any circumstance
described in Section 2.4 (f) hereof, each Base Rate Loan shall be automatically
converted to a LIBOR Rate Loan on the next Loan Payment Date. The Lessee may
elect at the end of any Interest Period with respect thereto to convert a LIBOR
Rate Loan into a Base Rate Loan. Notwithstanding the foregoing, (i) there
shall be only one Interest Period applicable at any time for all Loan Advances
outstanding hereunder as LIBOR Rate Loans, (ii) the first such Interest Period
shall commence on the Funding Date of the first LIBOR Rate Loan borrowed
hereunder and (iii) any Loan Advances thereafter requested as or converted to
LIBOR Rate Loans may only be so requested or converted effective on the first
day of the subsequent Interest Period. Effective as
- 3 -
7
of the Completion Date, all of the Loan Advances shall be deemed consolidated
and continued as a single Loan, which (unless the Lessee shall otherwise elect
a conversion to a Base Rate Loan, and except in the event that the Base Rate
applies a result of any of the circumstances set forth in Section 2.4 (f)
below) shall be a LIBOR Rate Loan having an Interest Period commencing on the
Completion Date and having a duration of one, two, three or six months, as the
Lessee may select. Each such election and selection made under this Section
2.4 (c) shall be made by giving the Lender at least three Business Days' prior
irrevocable written notice thereof, which notice shall specify (1) in the case
of a conversion to, or a continuation of, a LIBOR Rate Loan, the Interest
Period therefor, (2) in the case of a conversion, the date of conversion (which
date shall in any event be a Business Day), and (3) in the case of a conversion
or continuation prior to the Completion Date affecting less than 100% of the
principal amount of a Loan Advance, the amounts of such Loan Advance which are
to be LIBOR Rate Loans and Base Rate Loans, respectively. If, at any time
prior to the date a conversion to, or continuation of, a LIBOR Rate Loan is
effective, the Lessee has received notice that any of the circumstances
described in Sections 2.4(f)(i) or (iii) exist, the right of the Lessee to
convert all or a portion of Base Rate Loans to LIBOR Rate Loans or to continue
LIBOR Rate Loans for an additional Interest Period shall be suspended until the
Lessee receives notice that the circumstances causing such suspension no longer
exist.
(d) Interest Period Determination. Notwithstanding the foregoing
provisions of this Section 2.4:
(i) The Lessee may not select any Interest Period which ends
after the Scheduled Termination Date;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that if such extension would cause the
last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
(iii) After the Completion Date, if the Lessee shall fail to
notify the Lender of its election of the duration of an Interest Period
within the time period required under the terms of Section 2.4(c), then
(subject to the provisions of Section 2.4(f) below) the subsequent
Interest Period will automatically, on the last day of the then
existing Interest Period therefor, be continued as an Interest Period
having a duration of one month.
(e) Appointment of Agents for Interest Rate Elections. The Lessee
may, from time to time, and at any time upon notice to the Lender, appoint one
or more agents for the limited purpose of making interest rate and Interest
Period elections under this Section 2.4 below. The acts of such agent(s) shall
be binding upon the Lessee unless and until such time as the Lessee shall
notify the Lender that any such agent no longer has the authority to act on
behalf of the Lessee. Unless and until the Lessee notifies the Lender
otherwise, each of Xxxxxxx Xxxxxx and
- 4 -
8
Xxxxxx Xxxxxxxxx, acting alone, is hereby authorized by the Lessee to act as
the Lessee's agent in accordance with this Section 2.4.
(f) Interest Rate Protection.
(i) Suspension of LIBOR Rate Loans. If, with respect to
any Interest Period, the Lender notifies the Lessee that the Applicable
LIBOR Rate for such Interest Period will not adequately reflect the
cost to the Lender of maintaining the Loan or any Loan Advance subject
to such Interest Period, the obligation of the Lender to continue the
Loan for an additional Interest Period shall be suspended until the
Lender shall notify the Lessee that the circumstances causing such
suspension no longer exist, and during the period of suspension the
principal amount of the Loan shall bear interest at the Base Rate as in
effect from time to time, payable monthly in advance on each Loan
Payment Date during the period of suspension.
(ii) Increased Costs. Subject to the provisions of
Section 6.11 hereof, if, due to either (A) the introduction of or any
change (including any change by way of imposition or increase of
reserve requirements) in or in the interpretation of any law or
regulation or (B) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to the Lender of
agreeing to make or making, funding or maintaining the Loan or any Loan
Advance at the Applicable LIBOR Rate for any Interest Period, then the
Lessee shall from time to time, upon demand by the Lender, pay to the
Lender additional amounts sufficient to compensate the Lender for such
increased cost. A certificate in reasonable detail as to the amount of
such increased cost, submitted to the Lessee by the Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(iii) Illegality. Notwithstanding any other provision of
this Loan Agreement, if the Lender shall notify the Lessee that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for the Lender to perform its
obligations hereunder to make, or any Loan Advance at the Applicable
LIBOR Rate for any Interest Period or to fund or maintain, the Loan or
any Loan Advance at the Applicable LIBOR Rate for any Interest Period
(A) the obligation of the Lender to continue the Loan, or any Loan
Advance, for an additional Interest Period shall be suspended until the
Lender shall notify the Lessee that the circumstances causing such
suspension no longer exist and (B) during the period of suspension, the
Loan, or such Loan Advances, as the case may be, then outstanding shall
be automatically converted to bear interest at a rate per annum equal
to the Base Rate then and thereafter in effect from time to time,
payable on the last day of each month during which the Base Rate
applies.
(iv) Indemnification for Breakage Costs. If (a) any
payment of principal of the Loan or any Loan Advance is made other than
on a Loan Payment Date that is also the
- 5 -
9
last day of an Interest Period relating to such Loan or Loan Advance,
as a result of (i) a payment or conversion pursuant to Section
2.4(f)(iii), above, (ii) a prepayment of the Loan in whole or in part
for any reason, or (iii) for any other reason, or (b) the Lessor shall
fail to create, borrow or effect a Loan Advance on the Funding Date
specified in a Funding Requisition, then the Lessor shall, upon demand
by the Lender, pay Breakage Costs to the Lender.
SECTION 2.5 Interest on Overdue Amounts. If all or a portion of
the principal amount of or interest on the Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall, without limiting the rights of the Lender under Section 5, bear
interest at the Overdue Rate, but not exceeding the highest rate permitted by
Applicable Law, in each case from the date of nonpayment until paid in full (as
well after as before judgment).
SECTION 2.6 Discretion of Lender as to Manner of Funding.
Notwithstanding any provision of this Loan Agreement to the contrary, the
Lender shall be entitled to fund and maintain its funding of all or any part of
the Loan in any manner it sees fit, subject in all respects to Applicable Law,
it being understood however, that for the purposes of this Loan Agreement all
determinations hereunder shall be made as if the Lender had actually funded and
maintained each Loan Advance to which the Applicable LIBOR Rate applies during
each Interest Period applicable thereto through the purchase of deposits having
a maturity corresponding to such Interest Period and bearing an interest rate
equal to the Applicable LIBOR Rate for such Interest Period.
SECTION 3 RECEIPT, DISTRIBUTION AND APPLICATION OF CERTAIN
PAYMENTS IN RESPECT OF LEASE AND LEASED PROPERTY
SECTION 3.1 Distribution and Application of Rent Payments.
(a) Basic Rent. Each payment of Basic Rent (and any payment of
interest on overdue installments of Basic Rent) received by the Lender shall be
applied first, to the amounts of accrued and unpaid interest (including,
overdue interest) on the Loan, second, to principal of the Loan then due, and
third, an amount equal to all accrued and unpaid Contribution Return then due
shall be paid to the order of Lessor.
(b) Supplemental Rent. Each payment of Supplemental Rent received
by the Lender shall be paid to or upon the order of the Person owed the same.
SECTION 3.2 Distribution and Application of Purchase Payment.
The payment by the Lessee of:
(i) the purchase price for a consummated sale of the
Leased Property received by the Lender in connection with the Lessee's
exercise of the Purchase Option under Section 15.1 of the Lease, or
- 6 -
10
(ii) the Lessee's compliance with its obligation to
purchase the Leased Property in accordance with Section 15.2 of the
Lease, or
(iii) the Lease Balance in accordance with Section 11.1 or
Section 11.2 of the Lease,
shall be applied by the Lender first to the accrued and unpaid interest on the
Loan, second to Breakage Costs, if any, third to the outstanding principal of
the Loan and fourth, an amount equal to the sum of all accrued and unpaid
Contribution Return and the outstanding balance of the Contribution shall be
paid to the order of Lessor.
SECTION 3.3 Distribution and Application of Lessee Payment of Recourse
Deficiency Amount Upon Exercise of Remarketing Option. The payment by the
Lessee of the Recourse Deficiency Amount to the Lender on the Lease Termination
Date, in accordance with Section 15.6 or 15.7 of the Lease upon the Lessee's
exercise of the Remarketing Option, shall be applied by the Lender first to the
accrued and unpaid interest on, second to Breakage Costs, if any, third to the
outstanding principal of, the Loan, and fourth, the remaining balance, if any,
shall be paid to the order of Lessor on account of all accrued and unpaid
Contribution Return and the outstanding balance of the Contribution.
SECTION 3.4 Distribution and Application of Remarketing Proceeds of
Leased Property. Any payments received by the Lessor as proceeds from the sale
of the Leased Property sold pursuant to the Lessee's exercise of the
Remarketing Option pursuant to Section 15.6 or 15.7 of the Lease, shall be
distributed by the Lessor as promptly as possible (it being understood that any
such payment received by the Lessor on a timely basis and in accordance with
the provisions of the Lease shall be distributed on the date received in the
funds so received) in the following order of priority:
first, to the Lender for application to the accrued and unpaid
interest on the Loan;
second, to Breakage Costs, if any;
third, to the outstanding principal of the Loan;
fourth, to the Lessor in an amount equal to the sum of (i) all
Facility Rent due and unpaid under the Lease as of and prorated to the
date of payment, plus (ii) the outstanding balance of the Contribution,
plus (iii) any unpaid Supplemental Rent or unpaid portion of the Lease
Balance; and
fifth, (i) if sold by the Lessee pursuant to Section 15.6 of
the Lease, to the Lessee, the excess of such proceeds of sale, if any,
and (ii) otherwise, to the Lessor.
- 7 -
11
SECTION 3.5 Distribution and Application of Payments Received When an
Event of Default Exists or Has Ceased to Exist Following Rejection of the
Lease.
(a) Proceeds of Leased Property. Any payments received by the
Lessor or the Lender when an Event of Default exists (or has ceased to exist by
reason of a rejection of the Lease in a proceeding with respect to the Lessee
described in Article XIII(g) of the Lease), as either or both:
(i) proceeds from the sale of any or all of the Leased
Property sold pursuant to the exercise of the Lessor's remedies
pursuant to Article XIV of the Lease; or
(ii) proceeds of any amounts from any insurer or any
Governmental Authority in connection with an Event of Loss;
shall, if received by Lessor, be paid to the Lender as promptly as possible,
and shall be distributed or applied in the following order of priority prior to
the Release Date:
first, to the Lender for any amounts expended by it in
connection with the Leased Property or the Operative Documents and not
previously reimbursed to it;
second, to the Lender for application to the accrued and
unpaid interest on, Breakage Costs, if any, and the outstanding
principal of, the Loan;
third, to the Lessor in an amount equal to the sum of (i) all
Facility Rent due and unpaid under the Lease as of and prorated to the
date of payment, plus (ii) the outstanding balance of the Contribution,
plus (iii) any unpaid Supplemental Rent or unpaid portion of the Lease
Balance; and
fourth, to the Person or Persons legally entitled thereto, the
excess, if any; and
on and after the Release Date such amounts shall be paid over to the Lessor and
shall be distributed by the Lessor first, to the Lessor for application to any
unpaid amounts owing to the Lessor under the Operative Documents, and second,
to the Person or Persons legally entitled thereto, the excess, if any.
(b) Proceeds of Recoveries from Lessee. Any payments received by
the Lender when an Event of Default exists (or has ceased to exist by reason of
a rejection of the Lease in a proceeding with respect to the Lessee described
in Article XIII(g) of the Lease), from the Lessee as a payment in accordance
with the Lease, shall be paid to the Lender as promptly as possible, and shall
then be applied by the Lender as promptly as possible in the order of priority
set forth in subsection (a) of this Section.
SECTION 3.6 Distribution of Other Payments. All payments under
Section 7.6 of the Participation Agreement shall be made first, to the Lender
until the principal of, Breakage Costs,
- 8 -
12
if any, and interest on the Loan has been paid in full, and second, to Lessor
who shall be entitled to retain all such remaining amounts. Except as
otherwise provided in this Section, any payment received by the Lessor which is
to be paid to the Lender pursuant hereto or for which provision as to the
application thereof is made in an Operative Document but not elsewhere in this
Section shall, if received by Lessor, be paid forthwith to the Lender and when
received shall be distributed forthwith by the Lender to the Person and for the
purpose for which such payment was made in accordance with the terms of such
Operative Document.
SECTION 3.7 Reinvestment Account. If on any date the Lender or
the Lessor shall receive any amount in respect of (a) any Qualified Payment, or
(b) payments of principal in accordance with Appendix III on a Loan Payment
Date which is not the last day of an Interest Period, then in any such case,
the Lender or the Lessor, as the case may be, shall be required to pay such
amount received (i) if no Event of Default shall have occurred and remain
outstanding, to the Reinvestment Account (as hereinafter defined) to pay the
principal balance of the Loan on the next Loan Payment Date which is also the
last day of an Interest Period or (ii) if an Event of Default shall have
occurred and remain outstanding, to apply and allocate the proceeds respecting
this Section 3.7 in accordance with Section 3.5 hereof. Moneys received by the
Lender in respect of amounts described in clauses (a) or (b) above shall be
deposited into a separate account which the Lender shall establish in the name
of the Lessor for the benefit of the Lender and the Lessee (the "Reinvestment
Account"). Pending application as herein provided, such funds shall be
invested in Permitted Investments as directed by the Lessee. Interest earned on
the moneys held in the Reinvestment Account shall be for the account of the
Lessee and shall be paid to the Lender and deposited in the Reinvestment
Account. Funds held in the Reinvestment Account shall be applied, to the
partial payment of the Note on the next succeeding Loan Payment Date which is
the end of an Interest Period.
SECTION 4 THE LESSOR; EXERCISE OF REMEDIES UNDER LEASE
SECTION 4.1 Covenant of Lessor. So long as the Loan remains
outstanding and unpaid or any other amount is owing to Lender hereunder or
under the other Operative Documents, the Lessor will promptly pay all amounts
payable by it under this Loan Agreement and the Note in accordance with the
terms hereof and thereof and shall duly perform each of its obligations under
this Loan Agreement and the Note. The Lessor agrees to provide to the Lender a
copy of each estoppel certificate that the Lessor proposes to deliver pursuant
to Section 18.13 of the Lease at least five (5) days prior to such delivery and
to make any corrections thereto reasonably requested by the Lender prior to
such delivery. The Lessor shall keep the Leased Property free and clear of all
Lessor Liens. The Lessor shall not reject any sale of the Leased Property
pursuant to Section 15.6 of the Lease unless the Loan has not been paid in full
or the Lender consents to such rejection. In the event that the Lender directs
the Lessor to reject any sale of the Leased Property pursuant to Section 15.6
of the Lease, the Lessor agrees to take such action as Lender reasonably
requests to effect a sale or other disposition of the Leased Property. If a
Loan Event of Default under Section 5.1(e) hereof occurs, the Lessor will not
reject the Lease but shall assign the same to the Lender and the Lender agrees
to assume the Lessor's obligations thereunder.
- 9 -
13
SECTION 4.2 Lessor Obligations Nonrecourse; Payment from Certain
Lease Obligations and Certain Proceeds of Leased Property Only. All payments
to be made by the Lessor in respect of the Loan, the Note and this Loan
Agreement shall be made only from certain payments received under the Lease and
certain proceeds of the Leased Property and only to the extent that the Lessor
or the Lender shall have received sufficient payments from such sources to make
payments in respect of the Loan in accordance with Section 3. The Lender
agrees that it will look solely to such sources of payments to the extent
available for distribution to the Lender as herein provided and that neither
the Lessor nor any of its members or other Affiliates, or JH Management
Corporation, or any of their respective incorporators, stockholders, directors,
employees, officers or agents, shall be personally liable to the Lender for any
amount payable hereunder or under the Note. Nothing in this Loan Agreement,
the Note or any other Operative Document shall be construed as creating any
liability (other than for willful misconduct) of the Lessor individually to pay
any sum or to perform any covenant, either express or implied, in this Loan
Agreement, the Note or any other Operative Document (all such liability, if
any, being expressly waived by the Lender). The Lender, on behalf of itself
and its successors and assigns, agrees in the case of any liability of the
Lessor hereunder or under any of the Operative Documents (except for such
liability attributable to its willful misconduct) that it will look solely to
those certain payments received under the Lease and those certain proceeds of
the Leased Property; provided, however, that the Lessor in its individual
capacity (but not the Lessor, its members or other Affiliates, or JH Management
Corporation, or any of their respective incorporators, stockholders, directors,
employees, officers and agents) shall in any event be liable with respect to
(i) the removal of Lessor's Liens or liabilities involving its willful
misconduct or (ii) failure to turn over payments the Lessor has received in
accordance with Section 3; and provided, further that the foregoing exculpation
of the Lessor shall not be deemed to be exculpations of the Lessee or any other
Person.
SECTION 4.3 Exercise of Remedies Under Lease.
(a) Event of Default. With respect to any Event of Default as to
which notice thereof by the Lessor to the Lessee is a requirement to cause such
Event of Default to become an Event of Default, the Lessor may at any time in
its discretion give such notice; provided, however, that the Lessor agrees to
give such notice to the Lessee promptly upon receipt of a written request by
the Lender.
(b) Acceleration of Lease Balance. When an Event of Default
exists, the Lessor, upon the direction of the Lender, shall exercise remedies
under Article XIV of the Lease to demand payment in full of the Lease Balance
by the Lessee (an "Acceleration"). Following an Acceleration, the Lessor shall
consult with the Lender regarding actions to be taken in response to such Event
of Default. The Lessor shall not, without the prior written consent of Lender,
and shall (subject to the provisions of this Section), if so directed by the
Lender, do any of the following: commence eviction or foreclosure proceedings,
or file a lawsuit against the Lessee under the Lease, or sell the Leased
Property, or exercise other remedies against the Lessee under the Operative
Documents in respect of such Event of Default; provided, however, that any
payments received by the Lessor shall be distributed in accordance with Section
3.
- 10 -
14
Notwithstanding any such consent, direction or approval by the Lender of any
such action or omission, the Lessor shall have no obligation to follow such
direction if the same would, in the Lessor's reasonable judgment, require the
Lessor to expend its own funds or expose the Lessor to liability, expense, loss
or damages unless and until the Lender advances to the Lessor an amount or
offers the Lessor an indemnity in an amount, in either case, which is
sufficient, in Lessor's reasonable judgment, to cover such liability, expense,
loss or damage. Notwithstanding the foregoing, on and after the Release Date,
the Lender shall have no rights to the Leased Property or any proceeds thereof,
the Lender shall have no rights to direct or give consent to any actions with
respect to the Leased Property and the proceeds thereof, the Lessor shall have
absolute discretion as to the exercise of remedies with respect to the Leased
Property, and the proceeds thereof, including, without limitation, any
foreclosure or sale of the Leased Property, and the Lessor shall have no
liability to the Lender with respect to the Lessor's actions or failure to take
any action with respect to the Leased Property.
SECTION 5 LOAN EVENTS OF DEFAULT; REMEDIES
SECTION 5.1 Loan Events of Default. Each of the following events
shall constitute a Loan Event of Default (whether any such event shall be
voluntary or involuntary or come about or be effected by operation of law or
pursuant to or in compliance with any judgment, decree or order of any court or
any order, rule or regulation of any Governmental Authority) and each such Loan
Event of Default shall continue so long as, but only as long as, it shall not
have been remedied:
(a) The Lessor shall fail to distribute in accordance
with the provisions of Section 3 any amount received by the Lessor
pursuant to the Lease or the Participation Agreement within three (3)
Business Days of receipt thereof if and to the extent that the Lender
is entitled to such amount or a portion thereof;
(b) The Lessor shall fail to pay to the Lender, within
two (2) Business Days of the Lessor's receipt thereof, any amount which
the Lessee is required, pursuant to the Operative Documents, to pay to
the Lender but erroneously pays to the Lessor;
(c) The default by Lessor in the making of any payment in
respect of the Loan, the Note or this Loan Agreement for 5 days after
receipt by Lessor of written notice thereof from the Lender;
(d) The default by the Lessor in the performance of any
other covenant or condition herein or in any other Operative Document
to which the Lessor is a party, which failure shall continue unremedied
for 10 days after receipt by the Lessor of written notice thereof from
the Lender;
(e) Any representation or warranty of the Lessor
contained in any Operative Document or in any certificate required to
be delivered thereunder shall prove to have
- 11 -
15
been incorrect in a material respect when made and shall not have been
cured within 10 days of receipt by the Lessor of written notice thereof
from the Lender; or
(f) The Lessor shall become 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 substantially all of its respective property
without its consent and shall not be dismissed or stayed within a
period of 30 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 or stayed for a
period of 30 days.
SECTION 5.2 Loan Event of Default; Remedies.
(a) Upon the occurrence of a Loan Event of Default hereunder, (i)
if such event is a Loan Event of Default specified in clause (f) of Section 5.1
with respect to the Lessor, automatically, and without the necessity of any
notice or declaration by or to the Lender, or the Lessor, the outstanding
principal of, and accrued interest on, the Loan shall be immediately due and
payable and (ii) if such event is any other Loan Event of Default, the Lender
may, by notice of default to the Lessor, declare the outstanding principal of,
and accrued interest on, the Loan to be immediately due and payable, whereupon
the outstanding principal of, and accrued interest on, the Loan shall become
and be immediately due and payable.
(b) When a Loan Event of Default exists, the Lender may exercise
any or all of the rights and powers and pursue any and all of the remedies
available to it hereunder, under the Note, the Mortgage, and the Assignment of
Lease and Rents and shall have and may exercise any and all rights and remedies
available under the UCC or any other provision of law or in equity. When a
Loan Event of Default exists, the Lender may have the right to exercise all
rights of the Lessor under the Lease pursuant to the terms and in the manner
provided for in the Mortgage and the Assignment of Lease and Rents.
(c) Except as expressly provided above, no remedy under this
Section is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy provided under this Section or under the other
Operative Documents or otherwise available at law or in equity. The exercise
by the Lender of any one or more of such remedies shall not preclude the
simultaneous or later exercise of any other remedy or remedies. No express or
implied waiver by the Lender of any Loan Event of Default shall in any way be,
or be construed to be, a waiver of any future or subsequent Loan Event of
Default. The failure or delay of the Lender in exercising any rights granted
it hereunder or under any of the other Operative Documents upon any occurrence
of any of the contingencies set forth herein shall not constitute a waiver of
any such right upon the continuation or recurrence of any such contingencies or
similar contingencies and any single or partial exercise of any particular
right by the Lender shall not exhaust the same or constitute a waiver of any
other right provided herein or in any of the other Operative Documents.
- 12 -
16
SECTION 6 MISCELLANEOUS
SECTION 6.1 Amendments and Waivers. Neither this Loan Agreement, the
Note nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of Section 8.4 of the Participation
Agreement.
SECTION 6.2 Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be given in accordance with Section 8.2 of the Participation
Agreement.
SECTION 6.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Lender, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
SECTION 6.4 Successors and Assigns. This Loan Agreement shall be
binding upon and inure to the benefit of the Lessor, the Lender and their
respective successors and permitted assigns.
SECTION 6.5 Counterparts. This Loan Agreement may be executed in any
number of counterparts as may be convenient or necessary, and it shall not be
necessary that the signatures of all parties hereto or thereto be contained on
any one counterpart hereof or thereof. Additionally, the parties hereto agree
that for purposes of facilitating the execution of this Loan Agreement, (a) the
signature pages taken from separate individually executed counterparts of this
Loan Agreement may be combined to form multiple fully executed counterparts and
(b) a facsimile transmission shall be deemed to be an original signature. All
executed counterparts of this Loan Agreement shall be deemed to be originals,
but all such counterparts taken together or collectively, as the case may be,
shall constitute one and the same agreement.
SECTION 6.6 Governing Law. THIS LOAN AGREEMENT AND THE NOTE AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS LOAN AGREEMENT AND THE NOTE
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF TEXAS.
SECTION 6.7 Survival and Termination of Agreement. All covenants,
agreements, representations and warranties made herein and in any certificate,
document or statement delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Loan Agreement and the Note and
shall continue in full force and effect so long as the Note or any amount
payable to Lender under or in connection with this Loan Agreement or the Note
is unpaid, at which time this Loan Agreement shall terminate.
- 13 -
17
SECTION 6.8 Entire Agreement. This Loan Agreement sets forth the
entire agreement of the parties hereto with respect to its subject matter, and
supersedes all previous understandings, written or oral, with respect thereto.
SECTION 6.9 Severability. Any provision of this Loan Agreement or of
the Note which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating
the remaining provisions hereof or thereof or affecting the validity,
enforceability or legality of any such provision in any other jurisdiction.
SECTION 6.10 No Recourse. Except as provided in Section 4.2 hereof,
no recourse shall be had for any claims under this Loan Agreement against any
incorporator, shareholder, officer, or director, past, present or future, of
the Lessor or of any successor corporation, or against JH Management
Corporation, either directly or through the Lessor or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by acceptance hereof and as part of the consideration for the
acceptance hereof, expressly waived and released.
SECTION 6.11 Limitation on Interest. Any provision to the contrary
contained in this Loan Agreement or in any of the other Operative Documents
notwithstanding, it is expressly provided that in no case or event shall the
aggregate of (i) all interest payable by the Lessee or the Lessor and (ii) the
aggregate of any other amounts accrued or paid pursuant to this Loan Agreement
or any of the other Operative Documents, which under applicable laws are or may
be deemed to constitute interest, ever exceed the maximum rate of interest
which could lawfully be contracted for, charged or received. In this
connection, it is expressly stipulated and agreed that it is the intent of the
Lessee, the Lessor and the Lender to contract in strict compliance with the
applicable usury laws of the State and of the United States (whichever permit
the higher rate of interest) from time to time in effect. In furtherance
thereof, none of the terms of this Loan Agreement or any of the other Operative
Documents shall ever be construed to create a contract to pay, as consideration
for the use, forbearance or detention of money, interest at a rate in excess of
the maximum contract interest rate permitted to be contracted for, charged or
received by the applicable laws of the United States or the State (whichever
permit the higher rate of interest). The Lessee, the Lessor and any other
parties now or hereafter becoming liable for payment of any indebtedness under
this Loan or any other Operative Documents shall never be liable for interest
in excess of the maximum rate that may be lawfully contracted for or charged
under the laws of the State and of the United States (whichever permit the
higher rate of interest). If under any circumstances the aggregate amounts
paid include amounts which by law are deemed interest which would exceed the
maximum amount of interest which could lawfully have been contracted for,
charged or received, the parties stipulate that such amounts will be deemed to
have been paid as a result of an error on the part of the parties, and the
party receiving such excess payment shall promptly, upon discovery of such
error or upon notice thereof from the party making such payment, refund the
amount of such excess or at the Lender's option, credit such excess against any
unpaid principal balance owing. To the maximum extent permitted by applicable
law, all amounts contracted for, charged or received
- 14 -
18
for the use, forbearance, or detention of money shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread throughout the
full term of the Loan. The provisions of this Section shall control all of the
Operative Documents.
SECTION 6.12 Waiver of Consumer Rights. The Lessor and the Lender do
each hereby represent and warrant to one another that (a) it is not in a
significantly disparate bargaining position, (b) it is represented by legal
counsel in seeking or acquiring goods or services and such legal counsel was
not directly nor indirectly identified, suggested or selected by the other, (c)
it has knowledge and experience in financial and business matters that enable
it to evaluate the merits and risks of a transaction, including the transaction
evidenced by the Operative Documents, and (d) the Operative Documents are not a
result of any disparity in bargaining position among the Lessee, the Lessor and
the Lender and were negotiated on an arms-length basis and represent the
bargained-for agreement of parties. THE LESSOR AND THE LENDER EACH WAIVES ITS
RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION
17.41 ET SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL
RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN
SELECTION, THE LESSOR AND THE LENDER EACH VOLUNTARILY CONSENTS TO THIS WAIVER.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 15 -
19
IN WITNESS THEREOF, the parties hereto have caused this Loan Agreement
to be executed by their duly authorized officers as of the day and year first
above written.
ASSET XI HOLDINGS COMPANY, L.L.C.,
as Lessor and Borrower
by Asset Holdings Corporation I,
a Delaware corporation,
its managing member
By: /s/ XXXXXXX XXXXXXXX
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
BANK ONE, TEXAS, N.A., as Lender
By: /s/ XXXX X. XXXX, XX.
---------------------------------------
Name: Xxxx X. Xxxx, Xx.
Title: Vice President
- 16 -
20
APPENDIX I
Filed with Exhibit 10 to the Company's Quarterly Report on Form 10-Q
for the quarter ended December 31, 1996 and incorporated by reference herein.
21
APPENDIX II
PROMISSORY NOTE
$7,600,000 January ___, 1997
FOR VALUE RECEIVED, the undersigned ASSET XI HOLDINGS COMPANY, L.L.C.,
a Massachusetts limited liability company, as Lessor (the "Lessor") under that
certain Loan Agreement, dated as of January 10, 1997 (the "Loan Agreement"),
between the Lessor and Bank One, Texas, N.A. (the "Lender"), promises to pay to
the order of the Lender at its address located at Bank One Center, 910 Xxxxxx,
0xx Xxxxx, Xxxxxxx, Xxxxx 00000 or such other address as the Lender shall
hereafter designate in writing to the Lessor, the aggregate unpaid principal
amount of all Loan Advances made by the Lender to, or for the benefit of, the
Lessor, as recorded in the records of the Lender (and such recordation shall
constitute prima facie evidence of the information so recorded; provided,
however, that the failure to make any such recordation shall not in any way
affect the Lessor's obligation to repay this Note). The principal amount of
this Note shall be payable in installments on each Loan Payment Date from and
after the nineteenth (19th) Loan Payment Date in accordance with Schedule III
of the Loan Agreement and, in any event, on or prior to the Lease Termination
Date as provided in the Loan Agreement.
The Lessor further promises to pay interest (computed, to the extent
such computation would not result in interest in excess of that which is
permitted by Applicable Law, using the actual number of days elapsed and a
360-day year), on each Loan Payment Date, on the unpaid principal amount of
this Note from time to time outstanding, payable as provided in the Loan
Agreement, at the interest rates determined in accordance with the provisions
of Section 2.4 of the Loan Agreement and to pay interest on amounts not paid
when due under this Note at the Overdue Rate, not exceeding the highest rate
permitted by Applicable Law. All payments of principal of and interest on this
Note shall be payable in lawful currency of the United States of America at the
office of the Lender as provided above or such other address as the Lender
shall have designated to the Lessor, in immediately available funds.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest, and notice of
dishonor, notice of the existence, creation or nonpayment of all or any of the
Loan Advances and all other notices whatsoever.
ALL PAYMENTS TO BE MADE BY THE LESSOR IN RESPECT OF THE LOAN AND THIS
NOTE SHALL BE MADE ONLY FROM CERTAIN PAYMENTS RECEIVED UNDER THE LEASE AND
PROCEEDS OF THE LEASED PROPERTY AND ONLY TO THE EXTENT THAT THE LESSOR SHALL
HAVE RECEIVED SUFFICIENT PAYMENTS FROM SUCH SOURCES TO MAKE PAYMENTS IN RESPECT
OF THE LOAN IN ACCORDANCE WITH AND SUBJECT TO THE PRIORITIES SET FORTH IN
SECTION 3 OF THE LOAN AGREEMENT. THE LENDER BY ITS ACCEPTANCE HEREOF AGREES
THAT IT WILL LOOK SOLELY TO SUCH SOURCES OF PAYMENT TO THE EXTENT AVAILABLE FOR
DISTRIBUTION TO THE LENDER AS PROVIDED IN THE LOAN AGREEMENT AND THAT NEITHER
THE LESSOR NOR ANY OF ITS CONSTITUENT MEMBERS OR AFFILIATES, NOR JH MANAGEMENT
CORPORATION, NOR THEIR INCORPORATORS, STOCKHOLDERS, DIRECTORS, OFFICERS,
MEMBERS, MANAGERS, EMPLOYEES OR AGENTS
22
SHALL BE PERSONALLY LIABLE TO THE LENDER FOR ANY AMOUNT PAYABLE HEREUNDER OR
UNDER THE LOAN AGREEMENT. NOTHING IN THIS NOTE, THE LOAN AGREEMENT OR ANY
OTHER OPERATIVE DOCUMENT SHALL BE CONSTRUED AS CREATING ANY LIABILITY (OTHER
THAN FOR WILLFUL MISCONDUCT) OF THE LESSOR INDIVIDUALLY TO PAY ANY SUM OR TO
PERFORM ANY COVENANT, EITHER EXPRESS OR IMPLIED, IN THIS NOTE, THE LOAN
AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT (ALL SUCH LIABILITY, IF ANY, BEING
EXPRESSLY WAIVED BY THE LENDER BY ITS ACCEPTANCE HEREOF) AND THAT THE LENDER
AND EACH OTHER HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF, ON BEHALF OF
ITSELF AND ITS SUCCESSORS AND ASSIGNS, AGREES IN THE CASE OF ANY LIABILITY OF
THE LESSOR HEREUNDER OR THEREUNDER (EXCEPT FOR SUCH LIABILITY ATTRIBUTABLE TO
LESSOR'S WILLFUL MISCONDUCT) THAT IT WILL LOOK SOLELY TO THOSE CERTAIN PAYMENTS
RECEIVED UNDER THE LEASE AND THOSE CERTAIN PROCEEDS OF THE LEASED PROPERTY AS
PROVIDED IN SECTION 3 OF THE LOAN AGREEMENT; PROVIDED, HOWEVER, THAT THE LESSOR
IN ITS INDIVIDUAL CAPACITY (BUT NOT THE LESSOR'S INCORPORATORS, STOCKHOLDERS,
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) SHALL IN ANY EVENT BE LIABLE WITH
RESPECT TO (i) THE REMOVAL OF LESSOR LIENS RESULTING FROM CLAIMS AGAINST OR ACTS
OR BREACHES BY THE LESSOR IN EACH CASE IN ITS INDIVIDUAL CAPACITY AND INVOLVING
ITS WILLFUL MISCONDUCT OR (ii) FAILURE TO TURN OVER PAYMENTS THE LESSOR HAS
RECEIVED IN ACCORDANCE WITH SECTION 3 OF THE LOAN AGREEMENT; AND PROVIDED,
FURTHER, THAT THE FOREGOING EXCULPATION OF THE LESSOR SHALL NOT BE DEEMED TO BE
EXCULPATIONS OF THE LESSEE OR ANY OTHER PERSON.
Any provision to the contrary contained in this Note or in any of the
other Operative Documents notwithstanding, it is expressly provided that in no
case or event shall the aggregate of (i) all Interest payable by the Lessor and
(ii) the aggregate of any other amounts accrued or paid pursuant to this Note
or any of the other Operative Documents, which under applicable laws are or may
be deemed to constitute interest, ever exceed the maximum rate of interest
which could lawfully be contracted for, charged or received. In this
connection, it is expressly stipulated and agreed that it is the intent of the
Lessor and the Lender to contract in strict compliance with the applicable
usury laws of the State and of the United States (whichever permit the higher
rate of interest) from time to time in effect. In furtherance thereof, none of
the terms of this Note or any of the other Operative Documents shall ever be
construed to create a contract to pay, as consideration for the use,
forbearance or detention of money, interest at a rate in excess of the maximum
contract interest rate permitted to be contracted for, charged or received by
the applicable laws of the United States or the State (whichever permit the
higher rate of interest). The Lessor and any other parties now or hereafter
becoming liable for payment of any indebtedness under this Note or any other
Operative Documents shall never be liable for interest in excess of the maximum
rate that may be lawfully contracted for or charged under the laws of the State
and of the United States (whichever permit the higher rate of interest). If
under any circumstances the aggregate amounts paid include amounts which by law
are deemed interest which would exceed the maximum amount of interest which
could lawfully have been contracted for, charged or received, the parties
stipulate that such amounts will be deemed to have been paid as a result of an
error on the part of the parties, and the party receiving such excess payment
shall promptly, upon discovery of such error or upon notice thereof from the
party making such payment, refund the amount of such excess or at the Lender's
option, credit such excess against any unpaid principal balance owing. To the
maximum extent permitted by applicable law, all amounts contracted for, charged
or received for the use, forbearance, or
- 2 -
23
detention of money shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full term of this
Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Texas, without regard to conflicts of law principles.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Loan Agreement.
ASSET XI HOLDINGS COMPANY, L.L.C.,
as Lessor
by Asset Holdings Corporation I, its
Managing Member
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
- 3 -
