Common use of Unrestricted Cash and Cash Equivalents Clause in Contracts

Unrestricted Cash and Cash Equivalents. As of any date of determination, the sum of (a) the aggregate amount of unrestricted cash then held by the Borrower or any of its Subsidiaries and (b) the aggregate amount of unrestricted cash equivalents (valued at fair market value) then held by the Borrower or any of its Subsidiaries. As used in this definition, (i) "unrestricted" means the specified asset is not subject to any Liens in favor of any Person and (ii) "cash equivalents" includes overnight deposits and also means that such asset has a liquid, par value in cash and is convertible to cash within 3 months. Notwithstanding anything contained herein to the contrary, the term Unrestricted Cash and Cash Equivalents shall not include the Commitments of the Lenders to make Loans under this Agreement or any other commitments from which the access to such cash or cash equivalents would create Indebtedness. UNSECURED INDEBTEDNESS. All Indebtedness of any Person that is not secured by a Lien on any asset of such Person. UPFRONT FEE. See Section 2.4(e). WHOLLY-OWNED SUBSIDIARY. Any Subsidiary (a) of which MCRLP and/or MCRC shall at any time own directly or indirectly through a Subsidiary or Subsidiaries at least a controlling majority (by number of votes or controlling interests) of the outstanding voting interests and one hundred percent (100%) of the economic interests, of which at least ninety-five percent (95%) of the economic interests shall be owned by MCRLP and (b) of which MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole general partner or managing member; PROVIDED that the Subsidiary Guarantors shall be wholly-owned Subsidiaries. "WITHOUT RECOURSE" or "WITHOUT RECOURSE". With reference to any obligation or liability, any obligation or liability for which the obligor thereunder is not liable or obligated other than as to its interest in a designated Real Estate or other specifically identified asset only, subject to such limited exceptions to the non-recourse nature of such obligation or liability, such as fraud, misappropriation, misapplication and environmental indemnities, as are usual and customary in like transactions involving institutional lenders at the time of the incurrence of such obligation or liability.

Unrestricted Cash and Cash Equivalents. As The Borrower and its -------------------------------------- Subsidiaries shall have as of any date the last day of determinationthe Borrower's fiscal quarters ending closest to each of December 31, the sum of (a) the aggregate amount 2001, March 31, 2002 and June 30, 2002, on a consolidated basis, not less than $25,000,000 of unrestricted cash then held by the Borrower or and Cash Equivalents (it being understood that, in any of its Subsidiaries and (b) the aggregate amount of event, unrestricted cash equivalents and/or Cash Equivalents shall not include (valued at fair market valuei) then held by until forfeited to, or otherwise entitled to be retained by, the Borrower or any of its Subsidiaries. As used in this definition, tenant security and other restricted deposits or (iii) "unrestricted" means the specified asset is not any amounts subject to any Liens Lien in favor of any Person)." 11. Notwithstanding anything to the contrary contained in Section 8.02(xiv) or (xv) of the Credit Agreement, on or prior to August 15, 2002, neither the Borrower nor any of its Subsidiaries may make any acquisitions otherwise permitted thereunder; provided, however, the Borrower or a Wholly- -------- ------- Owned Subsidiary thereof may consummate an acquisition pursuant to such Section 8.02(xiv) or (xv) so long as (i) the only consideration paid in respect of any such acquisition consists solely of equity interests in Holdings or the Borrower otherwise permitted to be issued under the Credit Agreement, Acquired Indebtedness assumed as part of such acquisition and/or Indebtedness (other than Revolving Loans) created and/or incurred the proceeds of which are used solely to refinance any then existing Indebtedness of the property or Person so acquired, (ii) the ratio of (A) all Indebtedness to be assumed, created and/or incurred by the Borrower and/or its Subsidiaries as part of any such acquisition to (B) the "EBITDA" of the property or Person so acquired for the Test Period then most recently ended (with such "EBITDA" to be calculated on a basis consistent with the definition of "Consolidated EBITDA" contained in the Credit Agreement) does not exceed 3.50:1.00 and (iii) all other conditions set forth in such Section 8.02(xiv) or (xv), as applicable, also are satisfied in connection therewith. 12. Notwithstanding anything to the contrary contained in Section 8.02(xvi) or (xvii) of the Credit Agreement, on or prior to August 15, 2002, neither the Borrower nor any other Subsidiary of Holdings may consummate a merger otherwise permitted thereunder to the extent that any cash consideration is paid to any third parties in connection therewith. 13. Notwithstanding anything to the contrary contained in Section 8.03(iv) of the Credit Agreement, on or prior to August 15, 2002, the only Dividends permitted to be paid pursuant to such Section 8.03(iv) are (i) Dividends on common stock that are required to maintain (and in an amount not to exceed that amount required to maintain (taking into account all other Dividends theretofore or then being paid and/or declared)) Holdings' tax status as a real estate investment trust and to satisfy the distributions required to be made by Notice 88-19 under the Code (or Treasury regulations issued pursuant thereto) by reason of Holdings making the election provided for therein, so long as (x) such Dividends are declared and/or paid during the Borrower's fiscal quarter ending closest to December 31, 2001 and (y) such Dividends are otherwise permitted to be paid at such time pursuant to such Section 8.03(iv), (ii) Dividends to the holders of any Qualified Preferred Stock as constituted (and with respect to those shares outstanding) on November 19, 2001, so long as (w) such Dividends are otherwise permitted to be paid at such time pursuant to such Section 8.03(iv), (x) the Leverage Ratio at the time of the declaration of such Dividends, and immediately after giving effect to, such Dividends (in each case calculated as if such Dividends were paid on the date of declaration) is no greater than 7.25:1.00 (or, if less, the ratio then required to be maintained under Section 8.11 of the Credit Agreement, as modified by this Agreement, so that no Default or Event of Default exists), (y) such Dividends are declared and/or paid on or before the last day of the Borrower's fiscal quarter ending closest to June 30, 2002, and (z) an Authorized Financial Officer of the Borrower certifies to the Administrative Agent and each of the Banks in writing that the conditions described in preceding clauses (w), (x) and (y) of this subclause (ii) are satisfied and, based on reasonable projections at the time that such Dividends are declared, the Leverage Ratio at the end of the fiscal quarter in which such Dividends are declared will be no greater than 7.25:1.00 (or, if less, the ratio required to be maintained at the end of such fiscal quarter under Section 8.11 of the Credit Agreement, as modified by this Amendment, so that no Default or Event of Default will exist), and (iii) Dividends to the holders of any common stock, so long as (v) such Dividends are otherwise permitted to be paid at such time pursuant to such Section 8.03(iv), (w) such Dividends are, at the time declared (taking into account all other Dividends theretofore or then being declared during the fiscal quarter in which such Dividends are declared), in an amount not greater than one quarter of the minimum annual amount required (based on reasonable projections of taxable income for the fiscal year and taking into account all other Dividends theretofore or then being declared during such fiscal year) to maintain Holdings' tax status as a real estate investment trust and to satisfy the distributions required to be made by Notice 88-19 under the Code (or Treasury regulations issued pursuant thereto) by reason of Holdings making the election provided for therein, (x) the Leverage Ratio at the time of the declaration of such Dividends, and immediately after giving effect to, such Dividends (in each case calculated as if such Dividends were paid on the date of declaration) is less than 6.25:1.00 (or, if less, the ratio then required to be maintained under Section 8.11 of the Credit Agreement, as modified by this Amendment, so that no Default or Event of Default exists), (y) such Dividends are declared and/or paid after the Borrower's fiscal quarter ending closest to December 31, 2001 and on or before the last day of the Borrower's fiscal quarter ending closest to June 30, 2002, and (z) an Authorized Financial Officer of the Borrower certifies to the Administrative Agent and each of the Banks in writing that the conditions described in preceding clauses (v), (w), (x) and (y) of this subclause (iii) are satisfied and, based on reasonable projections at the time that such Dividends are declared, the Leverage Ratio at the end of the fiscal quarter in which such Dividends are declared will be less than 6.25:1.00 (or, if less, the ratio required to be maintained a the end of such fiscal quarter under Section 8.11 of the Credit Agreement, as modified by this Amendment, so that no Default or Event of Default will exist). 14. Notwithstanding anything to the contrary contained in Section 8.03(v), (vii) or (viii) of the Credit Agreement, on or prior to August 15, 2002, no Dividends may be paid pursuant to any such Section; provided, however, -------- ------- (i) Dividends may be paid pursuant to such Section 8.03(v) so long as (w) such Dividends are otherwise permitted to be paid at such time pursuant to such Section 8.03(v), (x) either (A) the payment of such Dividends is required to enable Holdings to maintain (and in an amount not to exceed that amount required to maintain (taking into account all other Dividends theretofore or then being paid and/or declared)) Holdings' tax status as a real estate investment trust and to satisfy the distributions required to be made by Notice 88-19 under the Code (or Treasury regulations issued pursuant thereto) by reason of Holdings making the election provided for therein, provided that such Dividends are -------- ---- declared and/or paid during the Borrower's fiscal quarter ending closest to December 31, 2001, or (B) the Leverage Ratio at the time of the declaration of such Dividends, and immediately after giving effect to, such Dividends (in each case, calculated as if such Dividends were paid on the date of declaration) is no greater than 7.25:1.00 (or, if less, the ratio then required to be maintained under Section 8.11 of the Credit Agreement, as modified by this Amendment, so that no Default or Event of Default exists), (y) such Dividends are declared and/or paid on or before the last day of the Borrower's fiscal quarter ending closest to June 30, 2002, and (z) except for Dividends paid pursuant to clause (x)(A) above, an Authorized Financial Officer of the Borrower certifies to the Administrative Agent and each of the Banks in writing that the conditions described in preceding clauses (w), (x) and (y) are satisfied and, based on reasonable projections at the time that such Dividends are paid, the Leverage Ratio at the end of the fiscal quarter in which such Dividends are paid will be no greater than 7.25:1.00 (or, if less, the ratio required to be maintained at the end of such fiscal quarter under Section 8.11 of the Credit Agreement, as modified by this Amendment, so that no Default or Event of Default will exist), and (ii) "cash equivalents" includes overnight deposits and also means that up to $1,000,000 of Dividends in the aggregate may be paid pursuant to such asset has a liquid, par value in cash and is convertible Section 8.03(vii) so long as such Dividends are otherwise permitted to cash within 3 monthsbe paid at such time pursuant to such Section 8.03(vii). 15. Notwithstanding anything contained herein to the contrary, the term Unrestricted Cash and Cash Equivalents shall not include the Commitments of the Lenders to make Loans under this Agreement or any other commitments from which the access to such cash or cash equivalents would create Indebtedness. UNSECURED INDEBTEDNESS. All Indebtedness of any Person that is not secured by a Lien on any asset of such Person. UPFRONT FEE. See contrary contained in Section 2.4(e). WHOLLY-OWNED SUBSIDIARY. Any Subsidiary (a) of which MCRLP and/or MCRC shall at any time own directly or indirectly through a Subsidiary or Subsidiaries at least a controlling majority (by number of votes or controlling interests8.04(vi) of the outstanding voting interests Credit Agreement, on or prior to August 15, 2002, neither the Borrower nor any of its Subsidiaries shall incur any additional Indebtedness pursuant to such Section 8.04(vi) except (i) pursuant to committed credit facilities (including this Agreement) existing on November 19, 2001, (ii) for refinancings of Secured Indebtedness or Subsidiary Indebtedness constituting Existing Indebtedness, (iii) for the Indebtedness assumed, created and/or incurred as part of any acquisition permitted by Section 11 of this Amendment and one hundred percent (iv) for other Indebtedness for borrowed money (and guaranties thereof by Subsidiary Guarantors) so long as 100%) % of the economic interests, Net Debt Proceeds therefrom are applied on the date of receipt thereof as a mandatory repayment provided in Section 6 of this Amendment (it being understood that nothing in this Section 15 shall prohibit an incurrence by the Borrower of Indebtedness for borrowed money issued under the Senior Note Indenture (and guaranties thereof by Subsidiary Guarantors) in an exchange offer in which at least ninety-five percent one series of notes is exchanged for a new series of notes under such Senior Note Indenture and so long as (95%x) neither the aggregate principal amount of such Indebtedness nor the economic interests shall be owned by MCRLP stated interest rate thereon is increased as a result of such exchange offer and (by) of which MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole general partner or managing member; PROVIDED that the Subsidiary Guarantors shall be wholly-owned Subsidiaries. "WITHOUT RECOURSE" or "WITHOUT RECOURSE". With reference to such exchange offer does not result in any obligation or liabilitycash proceeds), any obligation or liability for which the obligor thereunder is not liable or obligated other than as to its interest in a designated Real Estate or other specifically identified asset only, subject to such limited exceptions each case to the non-recourse nature of extent that such obligation or liability, additional Indebtedness is otherwise permitted to be incurred under such as fraud, misappropriation, misapplication and environmental indemnities, as are usual and customary in like transactions involving institutional lenders Section 8.04(vi) at the time of the incurrence thereof. 16. Notwithstanding anything to the contrary contained in Section 8.05(x), (xi) or (xiii) of the Credit Agreement, on or prior to August 15, 2002, neither Holdings, the Borrower nor any of their respective Subsidiaries may make any additional Investments otherwise permitted pursuant to any such Section; provided, however, up to $1,000,000 of Investments in the aggregate may be made -------- ------- pursuant to such Sections 8.05(x) and (xi) so long as such Investments are otherwise permitted to be made at such time pursuant to such Section 8.05(x) or (xi), as applicable. 17. Notwithstanding anything to the contrary contained in Section 8.05(xii) of the Credit Agreement, on or prior to August 15, 2002, neither the Borrower nor its Subsidiaries may make additional Investments pursuant to such Section 8.05(xii); provided, however, that the Borrower and its Subsidiaries -------- ------- (other than Taxable REIT Subsidiaries) may make additional Investments that are otherwise permitted pursuant to such Section 8.05(xii) so long as such additional Investments are permitted under one of the following categories: (i) up to $45,000,000 of Investments in the aggregate (excluding for purposes of such obligation calculation any Investment which is paid as a Dividend from and after November 19, 2001 to the Person who made the Investment) may be made so long as (A) such Investments are made in Subsidiaries of the Borrower (other than HMC Grand LLC or liabilitya Subsidiary thereof) that are not Subsidiary Guarantors, and (B) such Investments are made in the form of intercompany loans or equity contributions; (ii) up to $7,500,000 of Investments in the aggregate (excluding for purposes of such calculation any Investment which is paid as a Dividend from and after November 19, 2001 to the Person who made the Investment) may be made in any one or more Persons of which the Borrower owns, directly or indirectly, an equity interest in as of November 19, 2001 (other than a Subsidiary of Holdings or the Borrower, but including HMC Grand LLC or a Subsidiary thereof) so long as the amount of the Investment in any such Person does not exceed the debt service of such Person during the period from November 19, 2001 through August 15, 2002; or (iii) Investments in any Taxable REIT Subsidiary so long as such Investment is made (A) in the form of intercompany loans or equity contributions and (B) in order to (x) permit a Taxable REIT Subsidiary to pay obligations owed to (or on behalf of) the Borrower or its other Subsidiaries or (y) to provide the minimum capital necessary to maintain the existence of a Taxable REIT Subsidiary, provided, however, to the extent that a rental payment funded by this clause (iii) is used by a Subsidiary of Holdings or the Borrower that is not a Subsidiary Guarantor to pay debt service to a third party lender, such Investment shall be subject to and counted towards the $45,000,000 limitation on Investments pursuant to clause (i) of this Section 17.

Unrestricted Cash and Cash Equivalents. As of any date of -------------------------------------- determination, the sum of (a) the aggregate amount of unrestricted cash then actually held by the Borrower or any of its Subsidiaries (excluding without limitation, until forfeited or otherwise entitled to be retained by the Borrower or any of its Subsidiaries, tenant security and other restricted deposits) and (b) the aggregate amount of unrestricted cash equivalents (valued at fair market value) then held by the Borrower or any of its Subsidiaries. As used in this definition, (i) "unrestricted" means the specified asset is not subject to any Liens in favor of any Person and (ii) "cash equivalents" includes overnight deposits and also means that such asset has a liquid, par value in cash and is convertible to cash within 3 monthson demand. Notwithstanding anything contained herein to the contrary, the term Unrestricted Cash and Cash Equivalents shall not include the Commitments of the Lenders Banks to make Loans under this Agreement or any other commitments from which the access to such cash or cash equivalents would create IndebtednessAgreement. UNSECURED INDEBTEDNESS. All Indebtedness of any Person that is not secured by a Lien on any asset of such Person. UPFRONT FEEUnused Facility Fee. See Section 2.4(e(S)2.3(d). WHOLLY------------------- Value of Unencumbered Assets. As at any date of determination, the ---------------------------- sum of (i) the Borrowing Base Value plus (ii) Unrestricted Cash and Cash ---- Equivalents on such date. Wholly-OWNED SUBSIDIARYowned Subsidiary. Any Subsidiary (a) of which MCRLP the Borrower and/or MCRC the ----------------------- Guarantor shall at any time all times own directly or indirectly (through a Subsidiary or Subsidiaries Subsidiaries) at least a controlling majority (by number of votes or controlling interests) of the outstanding voting interests and one hundred ninety-nine percent (10099%) of the economic interests. For purposes of this definition, of which at least ninety-five percent (95%i) with respect to any Subsidiary of the economic interests Borrower or the Guarantor which is a Massachusetts nominee trust, references to such Subsidiary shall be owned by MCRLP deemed to be references to the beneficiary or beneficiaries of such nominee trust, and (bii) BPLP shall not be permitted to be released from its Obligations as a Borrower hereunder, notwithstanding any provision of which MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole general partner or managing member; PROVIDED that the Subsidiary Guarantors shall be wholly-owned Subsidiaries. "WITHOUT RECOURSE" or "WITHOUT RECOURSE". With reference to any obligation or liability, any obligation or liability for which the obligor thereunder is not liable or obligated other than as to its interest in a designated Real Estate or other specifically identified asset only, subject to such limited exceptions to the non-recourse nature of such obligation or liability, such as fraud, misappropriation, misapplication and environmental indemnities, as are usual and customary in like transactions involving institutional lenders at the time of the incurrence of such obligation or liabilityS)8.14.