Exhibit 10.48
$6,000,000 INTERIM LOAN
CREDIT AGREEMENT
BY AND AMONG
XXXXXXX PROPERTIES, L.P. AND XXXXXX X. XXXXXXX III,
AS BORROWERS,
AND
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
AS LENDER
DATED AS OF JUNE 3, 2003
TABLE OF CONTENTS
PAGE
ARTICLE 1 CREDIT FACILITY.................................................. 1
1.1 Interim Loan Amount.............................................. 1
1.2 Use of Interim Loan.............................................. 1
1.3 Repayment of Principal........................................... 1
1.4 Interest......................................................... 1
ARTICLE 2 INTEREST RATE AND YIELD-RELATED PROVISIONS....................... 2
2.1 Applicable Interest Rate......................................... 2
2.2 Payment of Interest.............................................. 2
2.3 Inability to Determine Rate...................................... 2
2.4 Illegality....................................................... 2
2.5 Funding.......................................................... 2
2.6 Reserved......................................................... 2
2.7 Requirements of Law; Increased Costs............................. 2
2.8 Obligation of Lender to Mitigate................................. 3
2.9 Taxes............................................................ 3
2.10 Post-Default Interest............................................ 4
2.11 Computations..................................................... 4
ARTICLE 3 PAYMENTS......................................................... 4
3.1 Evidence of Indebtedness......................................... 4
3.2 Nature and Place of Payments..................................... 4
3.3 Repayment........................................................ 4
3.4 Mandatory and Voluntary Prepayments.............................. 5
3.5 Allocation of Payments Received.................................. 5
ARTICLE 4 CREDIT SUPPORT................................................... 6
4.1 Pledge of Swaptions.............................................. 6
ARTICLE 5 CONDITIONS PRECEDENT............................................. 6
5.1 Conditions to Funding of the Interim Loan........................ 6
5.2 Outside Closing Date............................................. 7
ARTICLE 6 REPRESENTATIONS AND WARRANTIES................................... 7
6.1 Financial Condition.............................................. 7
6.2 No Material Adverse Effect....................................... 8
6.3 Compliance with Laws and Agreements.............................. 8
6.4 Organization, Powers; Authorization; Enforceability.............. 8
6.5 No Conflict...................................................... 8
6.6 No Litigation.................................................... 8
6.7 Taxes............................................................ 9
6.8 Investment Company Act........................................... 9
6.9 Subsidiary Entities.............................................. 9
6.10 Federal Reserve Board Regulations................................ 9
6.11 ERISA Compliance................................................. 9
6.12 Assets and Liens................................................. 9
6.13 Securities Acts..................................................10
6.14 Regulated Entities...............................................10
6.15 Prohibited Persons...............................................10
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6.16 Consents, Etc. ....................................................... 10
6.17 Full Disclosure....................................................... 10
6.18 Indebtedness.......................................................... 10
6.19 Brokers............................................................... 10
6.20 No Default............................................................ 11
6.21 Solvency.............................................................. 11
6.22 Contractual Obligations............................................... 11
6.23 Swaptions............................................................. 11
6.24 Substantial Benefit................................................... 11
ARTICLE 7 AFFIRMATIVE COVENANTS................................................. 11
7.1 Financial Statements.................................................. 11
7.2 Filings............................................................... 11
7.3 Other Information; Swaptions Notices.................................. 11
7.4 Maintenance of Existence and Assets................................... 12
7.5 Inspection of Assets; Books and Records; Discussions.................. 12
7.6 Notices............................................................... 12
7.7 Expenses.............................................................. 12
7.8 Payment of Indemnified Taxes and Other Taxes and Charges.............. 12
7.9 Insurance............................................................. 13
7.10 Hazardous Materials................................................... 13
7.11 Compliance with Laws and Contractual Obligations; Payment of Taxes.... 13
7.12 Use of Proceeds....................................................... 13
7.13 Plan Assets........................................................... 13
7.14 Prohibited Persons.................................................... 13
7.15 Further Assurances.................................................... 14
7.16 Net Worth............................................................. 14
ARTICLE 8 NEGATIVE COVENANTS.................................................... 14
8.1 Liens................................................................. 14
8.2 Indebtedness.......................................................... 14
8.3 Fundamental Change.................................................... 14
8.4 Dispositions.......................................................... 14
8.5 Investments........................................................... 15
8.6 Margin Stock.......................................................... 15
8.7 Organizational Documents.............................................. 15
8.8 ERISA................................................................. 15
8.9 Prohibited Persons.................................................... 15
8.10 Change in Status...................................................... 15
8.11 Swaptions............................................................. 15
ARTICLE 9 EVENTS OF DEFAULT..................................................... 16
ARTICLE 10 RELATIONSHIP BETWEEN BORROWERS........................................ 17
ARTICLE 11 MISCELLANEOUS PROVISIONS.............................................. 19
11.1 No Assignment by Borrower............................................. 19
11.2 Modification.......................................................... 19
11.3 Cumulative Rights; No Waiver.......................................... 19
11.4 Entire Agreement...................................................... 19
11.5 Survival.............................................................. 19
11.6 Notices............................................................... 20
11.7 Governing Law......................................................... 20
11.8 Assignment by Lender.................................................. 20
11.9 Counterparts.......................................................... 20
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11.10 Consent to Jurisdiction ...................................... 20
11.11 Waiver of Jury Trial ......................................... 20
11.12 Indemnity .................................................... 21
11.13 Telephonic Instruction ....................................... 21
11.14 Marshalling .................................................. 21
11.15 Set-off ...................................................... 21
11.16 Severability ................................................. 22
11.17 No Third Parties Benefited ................................... 22
11.18 Time ......................................................... 22
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SCHEDULE OF ANNEXES, SCHEDULES AND EXHIBITS
___________________________________________
ANNEXES:
Annex 1 Glossary
SCHEDULES:
Schedule 5.1(2) Additional Conditions Precedent for Funding of Interim Loan
Schedule 6.9 Subsidiary Entities
Schedule 6.22 Contractual Obligations
Schedule 11.6 Addresses for Notices, Etc.
EXHIBITS:
Exhibit A Form of Closing Certificate
Exhibit B Form of Commercial Purposes Certificate
Exhibit C Form of Note
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CREDIT AGREEMENT
THIS
CREDIT AGREEMENT (the "Agreement") is made and dated as of the 3rd
day of June 2003, by and among XXXXXXX PROPERTIES, L.P., a Maryland limited
partnership ("MP"), and XXXXXX X. XXXXXXX III ("Xxxxxxx"), as borrowers (each,
a "Borrower", and together, "Borrowers"), and DEUTSCHE BANK AG CAYMAN ISLANDS
BRANCH, as lender ("Lender").
RECITALS
A. Borrowers have requested Lender to extend credit to Borrowers in the
form of a single disbursement term loan.
B. Lender has agreed to extend such credit on the terms and subject to the
conditions set forth herein and in the other Loan Documents (as that term and
other initially-capitalized terms used herein are defined in, or the location
of the definitions thereof referenced in, the Glossary attached hereto as Annex
I and by this reference incorporated herein).
NOW, THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
ARTICLE 1 CREDIT FACILITY.
1.1 Interim Loan Amount. On the terms and subject to the conditions
set forth herein, Lender agrees that it shall fund a term loan to Borrowers in
the amount of $6,000,000.00 (the "Interim Loan"). Principal amounts of the
Interim Loan that are repaid or prepaid by Borrowers may not be reborrowed.
1.2 Use of Interim Loan. The Interim Loan shall be used solely to pay
the costs of acquiring the Swaptions and to pay certain other Lender-approved
costs associated therewith as set forth on a funding statement approved by
Lender. EACH BORROWER ACKNOWLEDGES THAT THE INTERIM LOAN IS A COMMERCIAL LOAN
AND THAT IN ENTERING INTO AND IN INCURRING OBLIGATIONS UNDER THIS AGREEMENT,
SUCH BORROWER IS NOT ENTITLED TO THE PROTECTION OF ANY CONSUMER LENDING LAWS OR
SIMILAR STATUTES OR REGULATIONS PROTECTING INDIVIDUALS ACTING IN THEIR
CAPACITIES AS CONSUMERS.
1.3 Repayment of Principal. Subject to the mandatory prepayment
provisions of Section 3.4, and any earlier acceleration of the Interim Loan
following an Event of Default, the principal balance of the Interim Loan and
all accrued and unpaid interest thereon shall be payable in full on June 30,
2003 (the "Maturity Date").
1.4 Interest. Interest shall be payable on the outstanding principal
balance of the Interim Loan at the rates and on the dates set forth in Sections
2.1 and 2.2 below.
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ARTICLE 2 INTEREST RATE AND YIELD-RELATED PROVISIONS.
2.1 Applicable Interest Rate. Subject to Section 2.3 hereof, the
outstanding principal balance of the Interim Loan thereof shall bear interest
from the date disbursed to but not including the date of payment calculated at a
per annum rate equal to the Applicable Interest Rate. The Applicable Interest
Rate shall be adjusted monthly, commencing on the first day of the calendar
month immediately following the date hereof and on the first day of each
succeeding calendar month (each, an "Interest Period") thereafter to and
including the first day of the month in which the Interim Loan is repaid in
full; provided, however, that to the extent such Applicable Interest Rate shall
be based on the LIBO Rate, it shall be based on the LIBO Rate in effect on the
last Business Day of the preceding calendar month.
2.2 Payment of Interest. Borrowers shall pay all accrued and unpaid
interest on the Interim Loan upon the Maturity Date or earlier repayment of the
Interim Loan, or upon any earlier acceleration of the Interim Loan following an
Event of Default.
2.3 Inability to Determine Rate. In the event that Lender shall have
determined (which determination shall be conclusive and binding upon Borrowers)
that by reason of circumstances affecting the interbank market adequate and
reasonable means do not exist for ascertaining the LIBO Rate, Lender shall
forthwith give telephonic notice of such determination to Borrowers. If such
notice is given, effective on the date set forth in such notice, the LIBO Rate
shall no longer be available and the Base Rate shall apply to the Interim Loan
until such notice has been withdrawn by Lender.
2.4 Illegality. Notwithstanding any other provisions herein, if any
law, regulation, treaty or directive issued by any Governmental Authority or any
change therein or in the interpretation or application thereof, shall make it
unlawful for Lender to make or maintain a loan based upon the LIBO Rate as
contemplated by this Agreement, the LIBO Rate shall be converted automatically
to the Base Rate within such earlier period as may be required by law.
2.5 Funding. Lender shall be entitled to fund all or any portion of
the Interim Loan in any manner it may determine in its sole discretion,
including in the Grand Cayman inter-bank market, the London inter-bank market
and with the United States, but all calculations and transactions hereunder
shall be conducted as though Lender actually funded all the Interim Loan through
the purchase in London of offshore dollar deposits in the amount of the Interim
Loan with maturities corresponding to each Interest Period.
2.6 Reserved.
2.7 Requirements of Law; Increased Costs.
(1) In the event that any applicable law, order, regulation,
treaty or directive issued by any central bank or other governmental authority,
agency or instrumentality or in the governmental or judicial interpretation or
application thereof, or compliance by Lender with any request or directive
(whether or not having the force of law) issued by any central bank or other
governmental authority, agency or instrumentality:
(A) Does or shall subject Lender to any Taxes of any kind
whatsoever with respect to this Agreement or the Interim Loan, or change the
basis of determining the Taxes imposed on payments to Lender of principal, fee,
interest or any other amount payable hereunder (except for change in the rate of
tax on the overall net income of Lender);
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(B) Does or shall impose, modify or hold applicable any
reserve, capital requirement, special deposit, compulsory loan or similar
requirements against assets held by, or deposits or other liabilities in or for
the account of, advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of Lender which are not otherwise included
in the determination of interest payable on the Obligations; or
(C) Does or shall impose on Lender any other condition;
and the result of any of the foregoing is to increase the cost to Lender of
making or maintaining the Interim Loan or to reduce any amount receivable in
respect thereof or the rate of return on the capital of Lender or any
corporation controlling Lender, then, in any such case, Borrowers shall, without
duplication of amounts payable pursuant to Section 2.10, promptly pay to Lender,
upon its written demand, any additional amounts necessary to compensate Lender
for such additional cost or reduced amounts receivable or rate of return as
determined by Lender with respect to this Agreement or the Interim Loan, so long
as the Lender requires substantially all obligors under other commitments of
this type made available by the Lender to similarly so compensate the Lender.
(2) The provisions of this Section 2.7 shall survive the
termination of this Agreement and payment of the Interim Loan and all other
Obligations.
2.8 Obligation of Lender to Mitigate. As promptly as reasonably
practicable after the officer of Lender responsible for administering the
Interim Loan becomes aware of any event or condition that would entitle Lender
to receive payments under Section 2.7 above or Section 2.9 below, Lender will
use reasonable efforts: (1) to maintain the Interim Loan through another lending
office of Lender or (2) take such other measures as Lender may deem reasonable,
if as a result thereof, the additional amounts which would otherwise be required
to be paid to Lender pursuant to Section 2.7 above or pursuant to Section 2.9
below would be materially reduced or eliminated or the conditions rendering
Lender incapable of maintaining a LIBO Rate loan under Section 2.4 above no
longer would be applicable, and if, as determined by Lender in its sole
discretion, the maintaining of the Interim Loan through such other lending
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such the Interim Loan or the interests of
Lender.
2.9 Taxes.
(1) Any and all payments by or on account of any obligation of
Borrowers hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided that if either Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.9) Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Borrowers shall make such deductions and (iii)
Borrowers shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(2) In addition, Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(3) Borrowers shall indemnify Lender, within ten (10) Business
Days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted
on or attributable to amounts payable under this Section 2.9) paid by Lender and
any penalties, interest and reasonable expenses arising therefrom or with
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respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to Borrowers by Lender shall be conclusive absent manifest error.
(4) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by Borrowers to a Governmental Authority, Borrowers shall
deliver to Lender the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to
Lender. The foregoing shall not be construed as limiting Borrowers' right to
pursue a Good Faith Contest with respect to such Indemnified Taxes or Other
Taxes, so long as such Good Faith Contest does not result in any reduction in
the amounts paid to Lender hereunder or any liability on the part of Lender for
such Indemnified Taxes or Other Taxes.
2.10 Post-Default Interest. During such time as there shall have
occurred and be continuing an Event of Default, all Obligations outstanding
shall, at the election of Lender, bear interest at a per annum rate equal to
five percent (5%) above the Applicable Interest Rate in effect during the
applicable calculation period.
2.11 Computations. All computations of interest and fees payable
hereunder shall be based upon a year of 360 days for the actual number of days
elapsed (which results in more interest being paid than if computed on the
basis of a 365-day year).
ARTICLE 3 PAYMENTS.
3.1 Evidence of Indebtedness. The obligation of Borrowers to repay
the Interim Loan shall be evidenced by notations on the books and records of
Lender. Such books and records shall constitute prima facie evidence thereof.
Any failure to record the interest rate applicable thereto or any other
information regarding the Obligations, or any error in doing so, shall not
limit or otherwise affect the obligation of Borrowers with respect to any of
the Obligations. Upon the request of Lender, Borrowers shall promptly execute
and deliver to Lender a Note evidencing the Interim Loan.
3.2 Nature and Place of Payments. All payments made on account of
the Obligations shall be made by Borrowers, without setoff or counterclaim, in
lawful money of the United States of America in immediately available same day
funds, free and clear of and without deduction for any Indemnified Taxes or
Other Taxes, fees or other charges of any nature whatsoever imposed by any
taxing authority and must be received by Lender by 1:00 p.m. (
New York time) on
the day of payment, it being expressly agreed and understood that if a payment
is received after 1:00 p.m. (
New York time), such payment will be considered to
have been made by Borrowers on the next succeeding Business Day and interest
thereon shall be payable by Borrowers at the rate otherwise applicable thereto
during such extension. All payments on account of the Obligations shall be made
to Lender through the Contact Office. If any payment required to be made by
Borrowers hereunder becomes due and payable on a day other than a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and
interest thereon shall be payable at the then applicable rate during such
extension.
3.3 Repayment. The entire unpaid balance of the Interim Loan
together with all accrued and unpaid interest thereon shall be due and payable
on the Maturity Date.
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3.4 Mandatory and Voluntary Prepayments.
(1) Upon not less than one (1) Business Day's prior written
notice to Lender, Borrowers may voluntarily prepay principal amounts
outstanding under the Interim Loan in whole or in part; provided, however, that
voluntary prepayments shall be in the minimum amount of $500,000 and integral
multiples of $100,000 in excess thereof. Voluntary prepayments of principal
pursuant to this Section 3.4(1) shall not relieve Borrowers from the obligation
to make the prepayments required pursuant to Sections 3.4(2) and 3.4(3) below.
(2) Borrowers shall remit to Lender as a mandatory prepayment
of the outstanding principal balance of the Interim Loan, concurrently with the
consummation of the Initial Public Offering, the entire principal amount of the
Interim Loan then outstanding.
(3) Until such time as the Obligations are repaid in full, in
the event that either Borrower receives any Distribution (other than, in the
case of Xxxxxxx, the Salaries) from any Subsidiary of such Borrower (whether
such Distribution is in the ordinary course of business of such Subsidiary, on
account of a Disposition, or otherwise), Borrowers shall remit to Lender as a
mandatory prepayment of the outstanding principal balance of the Interim Loan,
concurrently with the receipt of such Distribution, the full amount of such
Distribution; provided, however, so long as a lender under the Blackacre
Facility, the BOW Facility or the Riverside Facility has the right to receive
any Distribution on account of a Disposition by a Subsidiary of either
Borrower, the obligation of the Borrowers under this Section 3.4(3) to remit to
Lender the proceeds of any such Distribution on account of a Disposition as a
mandatory prepayment shall not be effective.
(4) Borrowers shall pay in connection with any prepayment
hereunder, whether voluntary or mandatory, all interest accrued but unpaid on
that portion of the Interim Loan to which such prepayment is applied and any
other amounts payable hereunder, concurrently with payment of any principal
amounts.
3.5 Allocation of Payments Received.
(1) Prior to the occurrence of an Event of Default and
acceleration of the Obligations, and unless otherwise expressly provided
herein, all amounts received by Lender on account of the Obligations shall be
applied as follows:
(A) First, to the payment of expenses incurred by Lender
under the Loan Documents, including all costs and expenses of collection,
reasonable attorneys' fees (including all allocated costs of internal counsel),
court costs and other amounts payable as provided in Section 7.7 below;
(B) Then, to accrued interest until all accrued and unpaid
interest on the Interim Loan has been paid in full;
(C) Then, to principal under the Interim Loan until the
outstanding principal balance of the Interim Loan has been paid in full;
(D) Then, to all other Obligations held by Lender, until
all other Obligations have been paid in full.
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(2) Following the occurrence of an Event of Default and
acceleration of the Obligations, all amounts received by Lender shall be applied
in such order and priority as Lender may determine in its sole and absolute
discretion.
ARTICLE 4 CREDIT SUPPORT.
4.1 Pledge of Swaptions. As credit support for the Obligations, on or
before the Closing Date, MP shall execute and deliver to Lender the Security
Agreement, pursuant to which MP shall pledge to Lender all of its right, title
and interest in and to the Swaptions.
ARTICLE 5 CONDITIONS PRECEDENT.
5.1 Conditions to Funding of the Interim Loan. As conditions
precedent to the agreement of Lender to fund the Interim Loan:
(1) Borrowers shall have delivered or shall have caused to be
delivered to Lender, in form and substance satisfactory to Lender and its
counsel and duly executed by the appropriate Persons, each of the following:
(A) This Agreement;
(B) The Note;
(C) The Security Agreement;
(D) A certificate of the Secretary or Assistant Secretary
of the general partner of MP attaching copies of resolutions duly adopted by
the Board of Directors of such general partner approving the execution,
delivery and performance of the Loan Documents on behalf of MP and certifying
the names and true signatures of the officers of such general partner
authorized to sign the Loan Documents;
(E) Opinions of counsel for Borrowers concerning such
matters as Lender may specify, each in form and substance satisfactory to
Lender and its counsel;
(F) Copies of the Certificate of Limited Partnership of
MP, certified by the Secretary of State of the state of formation of MP as of a
recent date;
(G) Copies of the Articles of Incorporation of the general
partner of MP, certified by the Secretary of State of the state of formation of
the general partner as of a recent date;
(H) Copies of the Organizational Documents of MP and the
general partner of MP, certified by the Secretary or an Assistant Secretary of
the general partner of MP as of the date of this Agreement as being accurate and
complete;
(I) A certificate of authority and good standing or
analogous documentation as of a recent date for MP and its general partner for
the state in which such Person is formed and for the State of California;
(J) From an officer of MP or its general partner and from
Xxxxxxx, a Closing Certificate dated as of the Closing Date;
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(K) From each of the Borrowers, a Commercial Purposes
Certificate dated as of the Closing Date;
(L) Payment in full by Borrowers of all fees required to
be paid by Borrowers on or before the Closing Date;
(M) Evidence satisfactory to Lender that the Borrower
Parties have obtained all necessary or desirable consents from Governmental
Authorities and other Persons necessary for the consummation and performance by
Borrower Parties of the transactions contemplated hereby (including the
acquisition of the Swaptions), including a consent from BOW pursuant to the
terms of the BOW Facility, each of which shall be in form and substance
satisfactory to Lender; and
(N) Evidence satisfactory to Lender that all costs and
expenses of Lender, including fees of outside counsel and fees of third party
consultants have been paid in full.
(2) Each of the requirements set forth on Schedule 5.1(2)
attached hereto shall have been met to the satisfaction of Lender.
(3) All representations and warranties of Borrower set forth
herein and in the other Loan Documents shall be accurate and complete in all
material respects as if made on and as of the Closing Date (unless any such
representation and warranty speaks as of a particular date, in which case it
shall be accurate and complete in all material respects as of such date).
(4) There shall not have occurred as of the Closing Date any
event or occurrence which would constitute an Event of Default or Potential
Default.
(5) There shall not have occurred any event, occurrence, change
or development that could have a Material Adverse Effect, as determined by
Lender in its sole and absolute discretion.
5.2 Outside Closing Date. If all conditions precedent set forth in
Section 5.1 above shall not have been met to the satisfaction of Lender on or
before June 6, 2003, then the agreement of Lender to fund the Interim Loan
shall terminate and this Agreement shall automatically be deemed of no further
force or effect (except to the extent terms and provisions of this Agreement
specifically provide that they shall survive termination hereof).
ARTICLE 6 REPRESENTATIONS AND WARRANTIES. As an inducement to Lender to
enter into this Agreement and to advance the Interim Loan, Borrowers hereby
represent and warrant, as of the Closing Date (or such later date as otherwise
set forth herein), to Lender as follows:
6.1 Financial Conditions. The unaudited financial statements of
Xxxxxxx dated December 31, 2002, delivered by Borrowers to Lender are true,
correct and complete, and fairly present in all material respects the respective
financial positions, results of operations and cash flows of MP and Xxxxxxx, as
applicable, for each of the periods covered thereby as at the respective dates
thereof. The property-level financial statements which have been submitted as
support for the assets described as "Completed Projects" in Xxxxxxx'x financial
statements were prepared in accordance with GAAP on an accrual basis and audited
(other than for the project identified therein as "17th & Grant", the financial
statements for which were unaudited), applied on a basis consistently maintained
throughout the period involved. Xxxxxxx does not have any Indebtedness or
liabilities (contingent or otherwise) and none of
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the Assets of Xxxxxxx are subject to any Liens which, in either case, are not
disclosed in the financial statement referred to above or in the notes thereto.
MP has not yet prepared financial statements.
6.2 No Material Adverse Effect. Since December 31, 2002, no event has
occurred which has resulted in, or may have, a Material Adverse Effect on any
Borrower Party.
6.3 Compliance with Laws and Agreements. Borrowers are in compliance
with all Requirements of Law and in all material respects with all Contractual
Obligations.
6.4 Organization, Powers; Authorization; Enforceability.
(1) MP (A) is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Maryland, (B) is
duly qualified to do business and is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing will have
or is reasonably likely to have a Material Adverse Effect, (C) has all requisite
power and authority to own, operate and encumber its Assets and to conduct its
business as presently conducted and as proposed to be conducted in connection
with and following the consummation of the transactions contemplated by this
Agreement, and (D) is a partnership for purposes of federal income taxation and
for purposes of the tax laws of any state or locality in which MP is subject to
taxation based on its income.
(2) True, correct and complete copies of the Organizational
Documents of MP, its general partner and its Subsidiaries have been delivered to
Lender, each of which is in full force and effect, has not been Modified except
to the extent indicated therein, and there are no defaults under such
Organizational Documents and no events which, with the passage of time or giving
of notice or both, would constitute a default under such Organizational
Documents.
(3) MP has the requisite power and authority to execute, deliver
and perform this Agreement and each of the other Loan Documents to which it is a
party. The execution, delivery and performance of each of the Loan Documents to
which MP is a party and the consummation of the transactions contemplated
thereby are within MP's partnership powers, have been duly authorized by all
necessary partnership action and such authorization has not been rescinded. No
other partnership action or proceedings on the part of MP is necessary to
consummate such transactions.
(4) Each of the Loan Documents to which a Borrower Party is a
party has been duly executed and delivered on behalf of such Borrower Party and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms (subject to bankruptcy, insolvency, reorganization, or
other laws affecting creditors' rights generally and to principles of equity,
regardless of whether considered in a proceeding in equity or at law), is in
full force and effect and all the terms, provisions, agreements and conditions
set forth therein and required to be performed or complied with by such Borrower
Party on or before the Closing Date have been performed or complied with, and no
Potential Default or Event of Default exists thereunder.
6.5 No Conflict. The execution, delivery and performance of the Loan
Documents, the borrowing hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or any Organizational Document or any material
Contractual Obligation of any Borrower Party or create or result in the creation
of any Lien on any Borrower Party or its Assets.
6.6 No Litigation. There are no outstanding or unpaid judgments
against any Borrower Party, and, except for litigation of "slip and fall" and
similar negligence claims against Subsidiaries of Xxxxxxx (the defense of which
has been tendered to and accepted by insurance carriers
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and which would not, either individually or in the aggregate, have a Material
Adverse Effect), no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
Borrowers, threatened by or against any of the Borrower Parties or against any
of such Person's Assets.
6.7 Taxes. All tax returns, reports and similar statements or filings
of each of Borrower Parties have been timely filed (taking into account any
lawful extensions). All taxes, assessments, fees and other charges of
Governmental Authorities upon such Persons and upon or relating to their
respective Assets, assets, receipts, sales, use, payroll, employment, income,
licenses and franchises which are shown in such returns or reports to be due and
payable have been paid, except to the extent such taxes, assessments, fees and
other charges of Governmental Authorities are subject to a Good Faith Contest.
6.8 Investment Company Act. No Borrower Party is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940 (as amended from time to time).
6.9 Subsidiary Entities. Schedule 6.9 (1) contains charts and
diagrams reflecting the ownership structure of MP and its Subsidiaries, and
indicates the nature of the corporate, partnership, limited liability company or
other equity interest in each Person included in such chart or diagram; and (2)
accurately sets forth (A) the correct legal name of such Person, the type of
organization, and the jurisdiction of its incorporation or organization, and (B)
the class of outstanding Capital Stock of such Persons along with the percentage
thereof owned by each and its respective Subsidiaries. None of such issued and
outstanding Capital Stock is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options outstanding with respect to such
Securities, except as noted on Schedule 6.9. Each Subsidiary of MP: (i) is a
corporation, limited liability company, or partnership, as indicated on Schedule
6.9, duly organized, validly existing and, if applicable, in good standing under
the laws of the jurisdiction of its organization, (ii) is duly qualified to do
business and, if applicable, is in good standing under the laws of each
jurisdiction in which failure to be so qualified and in good standing would
limit its ability to use the courts of such jurisdiction to enforce Contractual
Obligations to which it is a party, and (iii) has all requisite power and
authority to own, operate and encumber its Assets and to conduct its business as
presently conducted and as proposed to be conducted hereafter.
6.10 Federal Reserve Board Regulations. Neither Borrower is engaged or
will engage, principally or as one of its important activities, in the business
of extending credit for the purpose of "purchasing" or "carrying" any "Margin
Stock" within the respective meanings of such terms under Regulations U, T and
X. No part of the proceeds of the Interim Loan will be used for "purchasing" or
"carrying" "Margin Stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of, the Regulations of the
Board of Governors of the Federal Reserve System.
6.11 ERISA Compliance. Neither Borrower nor any ERISA Affiliate of
either Borrower has incurred any liability under Title IV or Section 302 of
ERISA or Section 412 of the Code or maintains or contributes to, or is or has
been required to maintain or contribute to, any employee benefit plan subject to
Title IV or Section 302 of ERISA or Section 412 of the Code. The consummation of
the transactions contemplated hereby will not constitute or result in any
transaction prohibited by Section 406 of ERISA or Section 4975 of the Code.
6.12 Assets and Liens. Each Borrower has good and marketable title to
all Assets reflected in its respective financial statements referred to in
Section 6.1 above. Neither Borrower has
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outstanding Liens on any of its Assets nor are there any security agreements to
which it is a party, except as described in such financial statements.
6.13 Securities Acts. Neither Borrower has issued any unregistered
securities in violation of the registration requirements of Section 5 of the
Securities Act of 1933, (as amended from time to time, the "Act") or any other
law, nor are they in violation of any rule, regulation or requirement under the
Act, or the Securities Exchange Act of 1934, (as amended from time to time).
Neither Borrower is required to qualify an indenture under the Trust Indenture
Act of 1939, (as amended from time to time) in connection with any such
Person's execution and delivery of the Loan Documents or the incurrence of
Indebtedness hereunder.
6.14 Regulated Entities. Neither Borrower is (1) subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness, or (2) a "foreign person" within the meaning of Section 1445 of
the Code.
6.15 Prohibited Persons. None of the Borrower Parties and none of
their respective officers, directors, shareholders, partners, members or
affiliates (collectively, "Applicable Parties") is or will be an entity or
person (1) that is listed in the Annex to, or is otherwise subject to the
provisions of Executive Order 13224 issued on September 24, 2001 ("EO13224");
(2) whose name appears on the United States Treasury Department's Office of
Foreign Assets Control ("OFAC") most current list of "Specifically Designated
National and Blocked Persons" (which list may be published from time to time in
various mediums including, but not limited to, the OFAC website,
http:xxx.xxxxx.xxx/xxxx/x00xxx.xxx); (3) who commits, threatens to commit or
supports "terrorism", as that term is defined in EO 13224; or (4) who is
otherwise affiliated with any entity or person listed above (any and all
parties or persons described in clauses (1)-(4) above are herein referred to as
a "Prohibited Person").
6.16 Consents, Etc. Except for the consent of BOW under the BOW
Facility (which consent, in form and substance satisfactory to Lender, shall be
a condition to Lender's obligation to fund the Loan hereunder), no consent,
approval or authorization of, or registration, declaration or filing with any
Governmental Authority or any other Person is required on the part of any
Borrower Party in connection with the execution and delivery of the Loan
Documents by Borrowers, or the performance of or compliance with the terms,
provisions and conditions thereof by Borrowers, other than those that have been
obtained or will be obtained by the legally required time.
6.17 Full Disclosure. None of the representations or warranties made
by Borrowers in the Loan Documents as of the date such representations and
warranties are made or deemed made contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they are made, not
misleading.
6.18 Indebtedness. The financial statements of Xxxxxxx described in
Section 6.1 accurately and completely sets forth all Indebtedness for borrowed
money of Xxxxxxx and, except as set forth on such financial statements, there
are no defaults in the payment of principal or interest on any such
Indebtedness, and no payments thereunder have been deferred or extended beyond
their stated maturity, and, except as set forth on such financial statements,
there has been no material change in the type or amount of such Indebtedness
since December 31, 2002. MP has no Indebtedness.
6.19 Brokers. No Borrower Party has dealt with any broker or finder
with respect to the transactions embodied in this Agreement and the other Loan
Documents.
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6.20 No Default. No Default or Potential Default has occurred and is
continuing.
6.21 Solvency. After giving effect to the Interim Loan, the
disbursement of the proceeds thereof pursuant to Borrowers' instructions, and
the purchase of the Swaptions, each Borrower is Solvent.
6.22 Contractual Obligations. Schedule 6.22 sets forth all material
Contractual Obligations of MP.
6.23 Swaptions. MP has executed trades with respect to the Swaptions
as of June 2, 2003, as more fully described in the definition of "Swaptions",
and such trades have not been Modified or terminated in any respect. MP is not a
party to any agreement with Swap Provider other than the Swaptions. There are no
defaults under the ISDA Master Agreement referred to in the definition of
"Swaptions" contained in Annex I attached hereto that would give rise to any
netting or off-set rights (or any other rights or remedies) on the part of the
Swap Provider or any other Person with respect to the Swaptions.
6.24 Substantial Benefit. Xxxxxxx owns, directly or indirectly, one
hundred percent of the Capital Stock of MP and Xxxxxxx has not sold, conveyed,
pledged, hypothecated, encumbered, created any security interest with respect
to, or otherwise transferred, directly or indirectly, of any legal or beneficial
interest in such Capital Stock. Xxxxxxx shall derive, directly and indirectly,
substantial benefit from the purchase by MP of the Swaptions.
ARTICLE 7 AFFIRMATIVE COVENANTS. As an inducement to Lender to enter into
this Agreement and to advance the Interim Loan, Borrowers hereby covenant and
agree with Lender that, as long as any Obligations remain unpaid:
7.1 Financial Statements. Each Borrower shall maintain a system of
accounting established and administered in accordance with sound accounting
practices and, in the case of MP and its and Xxxxxxx'x Subsidiaries, GAAP. Each
Borrower shall deliver to Lender from time to time within ten (10) days
following Lender's request therefor, such financial statements as Lender may
request with respect to such Borrower and its Subsidiaries. Such statements
shall include, in the case of annual financial statements, statements of income,
owner's equity and cash flow of each Borrower and its Subsidiaries for the
applicable fiscal year, setting forth in each case in comparative form the
consolidated or combined figures, as the case may be, for the previous fiscal
year, all in reasonable detail and accompanied by a report thereon of KPMG or
other independent certified public accountants of recognized national standing
selected by Borrower and reasonably satisfactory to Lender, which report shall
be unqualified and shall state that such financial statements fairly present the
financial position of each Borrower and its Subsidiaries as at the date
indicated and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards.
7.2 Filings. Each Borrower shall deliver to Lender upon request
copies of all proxy statements, financial statements, and reports which such
Borrower delivers to its partners, and copies of all regular, periodic and
special reports, and all registration statements, if any, under the Act which
such Borrower files with the Securities and Exchange Commission or any
Governmental Authority which may be substituted therefor, or with any national
securities exchange.
7.3 Other Information; Swaptions Notices. Borrowers shall furnish or
cause to be furnished to Lender promptly such additional financial and other
information, including information
11
regarding Borrower Parties' Assets, as Lender may from time to time request.
Without limiting the generality of the foregoing, MP shall deliver to Lender any
and all correspondence or notices delivered by MP or the Swap Provider pursuant
to or in connection with the Swaptions.
7.4 Maintenance of Existence and Assets. Each Borrower shall (to the
extent applicable), and shall cause each of its Subsidiaries to, at all times:
(1) maintain its corporate existence or existence as a limited partnership or
limited liability company, as applicable; (2) maintain in full force and effect
all of its rights, privileges, licenses, approvals, franchises, and Assets; (3)
remain qualified to do business and maintain its good standing in each
jurisdiction in which failure to be so qualified and in good standing will have
a Material Adverse Effect; and (4) not permit, commit or suffer any waste or
abandonment of any of its Assets that will have a Material Adverse Effect.
7.5 Inspection of Assets; Books and Records; Discussions. Each
Borrower shall, and shall cause its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in conformity with sound
accounting practices consistently applied and all material Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities, and shall permit representatives of Lender to visit and inspect any
of its Assets and examine and make copies or abstracts from any of its books and
records at any reasonable time during normal business hours and as often as may
reasonably be desired by Lender, and to discuss the business, operations,
properties and financial and other condition of Borrower Parties with officers
and employees of such Borrower and with its independent certified public
accountants (provided that representatives of Borrowers may be present at and
participate in any such discussion).
7.6 Notices. Borrowers shall promptly, but in any event within five
(5) Business Days after obtaining knowledge thereof, give written notice to
Lender of:
(1) The occurrence of any Potential Default or Event of Default
and what action Borrowers have taken, are taking, or are proposing to take in
response thereto;
(2) The institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting any
Borrower Party and not previously disclosed to Lender in writing. Borrowers,
upon request of Lender, shall promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration; and
(3) The occurrence of any event which is likely to constitute a
Material Adverse Effect with respect to any Borrower Party.
7.7 Expenses. Borrowers shall pay all out-of-pocket expenses
(including reasonable fees and disbursements of counsel): (1) of Lender incident
to the preparation, negotiation and administration of the Loan Documents,
including any proposed Modifications or waivers with respect thereto, and the
preservation and protection of the rights of Lender under the Loan Documents,
and (2) of Lender incident to the enforcement of payment of the Obligations,
whether by judicial proceedings or otherwise, including in connection with
bankruptcy, insolvency, liquidation, reorganization, moratorium or other similar
proceedings involving any Borrower Party or a "workout" of the Obligations. The
obligations of Borrowers under this Section 7.7 shall survive payment of all
other Obligations.
7.8 Payment of Indemnified Taxes and Other Taxes and Charges. Each
Borrower shall, and shall cause each of its Subsidiaries to, file all tax
returns required to be filed in any jurisdiction and, if applicable, and except
with respect to taxes subject to any Good Faith Contest, pay and discharge all
Indemnified Taxes and Other Taxes imposed upon it or any of its Assets or in
respect of any of its
12
franchises, business, income or property before any material penalty shall be
incurred with respect to such Indemnified Taxes and Other Taxes.
7.9 Insurance. Each Borrower shall maintain, and shall cause its
Subsidiaries to maintain, to the extent commercially available, insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks (including fire, extended coverage, vandalism, malicious
mischief, flood, earthquake, public liability, product liability, business
interruption and terrorism) as is usually carried by persons or companies
engaged in similar businesses and owning similar Assets in the same general
areas in which such Borrower or its Subsidiaries engage in business or owns
Assets.
7.10 Hazardous Materials. Each Borrower shall, and shall cause each
of its Subsidiaries to, do the following:
(1) Keep and maintain all of its Assets in material compliance
with any Hazardous Materials Laws;
(2) Promptly cause the removal of any Hazardous Materials
discharged, disposed of, or otherwise released in, on or under any of its Assets
that are in violation of any Hazardous Materials Laws, and cause any remediation
required by any Hazardous Material Laws or Governmental Authority to be
performed. In the course of carrying out such actions, Borrowers shall provide
Lender with such periodic information and notices regarding the status of
investigation, removal, and remediation, as Lender may reasonably require; and
(3) Promptly advise Lender in writing of any of the following:
(i) any Hazardous Material Claims with respect to any of its Assets; (ii) the
receipt of any notice of any alleged violation of Hazardous Materials Laws with
respect to any of its Assets; and (iii) the discovery of any occurrence or
condition on any of Borrower's Assets. If Lender shall be joined in any legal
proceedings or actions initiated in connection with any Hazardous Materials
Claims, Borrowers shall indemnify, defend, and hold harmless Lender with respect
to any liabilities and obligations arising with respect thereto, including
reasonable attorneys' fees and disbursements.
7.11 Compliance with Laws and Contractual Obligations; Payment of
Taxes. Each Borrower shall, and shall cause each of its Subsidiaries to, (1)
comply with all Requirements of Law relating to it, its business or its Assets;
and (2) comply in all material respects with all Contractual Obligations.
7.12 Use of Proceeds. The proceeds of the Interim Loan shall be used
to solely for the purposes set forth in Section 1.2 hereof.
7.13 Plan Assets. Each Borrower will do, or cause to be done, all
things necessary to ensure that it will not be deemed to hold Plan Assets at any
time.
7.14 Prohibited Persons. Borrowers shall deliver from time to time
to Lender any such certification or other evidence as may be requested by Lender
in its sole and absolute discretion, confirming that: (i) no Borrower Party is a
Prohibited Person; and (ii) no Borrower Party has engaged in any business,
transaction or dealings with a Prohibited Person, including, but not limited to,
the making or receiving of any contribution of funds, goods, or services, to or
for the benefit of a Prohibited Person.
13
7.15 Further Assurances. Each Borrower shall promptly upon request by
Lender, do any acts or, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register, any and all such further security agreements,
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers, certificates,
assurances and other instruments Lender may reasonably require from time to time
in order (i) to carry out more effectively the purposes of the Loan Documents,
and (ii) to assure, convey, grant, assign, transfer, preserve, protect and
confirm to Lender the rights granted or now or hereafter intended to be granted
to Lender under the Loan Documents.
7.16 Net Worth. Xxxxxxx shall maintain a tangible net worth of not
less than $50,000,000.00. For these purposes, tangible net worth shall be
calculated by Lender in accordance with GAAP, except that (i) the value of the
Assets of Xxxxxxx shall be based upon the market value of such Assets as
determined by Lender in its sole and absolute discretion, and (ii) the tangible
net worth shall be calculated exclusive of any net worth attributable to any
direct or indirect interest of Xxxxxxx in MP or any capital contributions made
to MP.
ARTICLE 8 NEGATIVE COVENANTS. As an inducement to Lender to enter into this
Agreement and to advance the Interim Loan, Borrowers hereby covenant and agree
with Lender that, as long as any Obligations remain unpaid:
8.1 Liens. MP shall not create, incur, assume or suffer to exist, any
Lien upon any of its Assets or those of its Subsidiaries. Xxxxxxx shall not
create, incur, assume or suffer to exist, any Lien upon any of his Assets or
those of his Subsidiaries other than such Liens as are existing as of the date
hereof.
8.2 Indebtedness MP shall not, and shall not permit any of its
Subsidiaries to, incur any Indebtedness other than the Obligations and the
Indebtedness under this Agreement. Xxxxxxx shall not incur any Indebtedness
other than Permitted Xxxxxxx Indebtedness. Without the prior written consent of
Lender (which may be withheld in Lender's sole and absolute discretion), Xxxxxxx
shall not Modify the terms of any Indebtedness of Xxxxxxx outstanding as of the
date hereof. Xxxxxxx shall not permit any of his Subsidiaries to incur any
Indebtedness, other than Indebtedness of such Person outstanding as of the date
hereof, if such Indebtedness could have a Material Adverse Effect on either
Borrower. Without the prior written consent of Lender (which may be withheld in
Lender's sole and absolute discretion), Xxxxxxx shall not permit any of his
Subsidiaries to Modify the terms of any Indebtedness of such Person existing as
of the date hereof if such Modification could have a Material Adverse Effect on
either Borrower.
8.3 Fundamental Change.
(1) Borrowers shall not, and shall not permit any of their
respective Subsidiaries to, merge or consolidate with any Person; sell, assign,
lease or otherwise effect a Disposition, whether in one transaction or in a
series of transactions, of any of such Borrower's Assets, whether now owned or
hereafter acquired; or enter into any agreement to do any of the foregoing.
(2) Borrowers shall not, and shall not permit any of their
respective Subsidiaries to, engage to any material extent in any business other
than such business as such Person is conducting on the date hereof.
8.4 Dispositions. Borrowers shall not permit any of the following to
occur:
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(1) Any Disposition by a Borrower or any of its or his
Subsidiaries of the Capital Stock of any such Person; or
(2) Any Disposition by a Borrower or any of its or his
Subsidiaries of any of their respective Assets.
8.5 Investments. Without Lender's prior written consent (which may be
withheld in Lender's sole and absolute discretion), Borrowers shall not, and, in
the case of MP, shall not permit any of its Subsidiaries to, make any
Investment.
8.6 Margin Stock. Borrowers shall not use any portion of the
proceeds of any credit extended under this Agreement to purchase or carry
Margin Stock.
8.7 Organizational Documents. Without the prior written consent of
Lender, Borrowers shall not, and shall not permit any of their respective
Subsidiaries to, Modify any of the terms or provisions of such Person's
Organizational Documents, as applicable. Notwithstanding the foregoing, the
partners of MP and Xxxxxxx, as the sole shareholder of the general partner of
MP, shall be permitted to enter into that certain Amended and Restated
Agreement of Limited Partnership and those certain Articles of Amendment and
Restatement, respectively, immediately prior to the consummation of the Initial
Public Offering as contemplated by the Registration Statement, provided,
however, that prior to entering into such documents, Lender shall have received
an opinion of counsel to the Borrowers that the execution and delivery by MP of
the Loan Documents and the performance by MP of its obligations hereunder shall
not conflict with, or result in a breach of or default under, such documents.
8.8 ERISA.
(1) Borrowers shall not, and shall not permit any of their
Subsidiaries to, maintain or contribute to, or agree to maintain or
contribute to, or permit any ERISA Affiliate to maintain or contribute to or
agree to maintain or contribute to, any employee benefit plan subject to
Title IV or Section 302 of ERISA or Section 312 of the Code.
(2) Borrowers shall not, and shall not permit any of their
Subsidiaries to, engage in a non-exempt prohibited transaction described in
Section 406 of ERISA or Section 4975 of the Code, as such sections relate to a
Borrower, or in any transaction that would cause any obligation or action
taken or to be taken hereunder (or the exercise by Lender of any of its rights
the Loan Documents) to be a non-exempt prohibited transaction under ERISA.
8.9 Prohibited Persons. Borrowers shall not, and shall not permit any
of their respective Subsidiaries to: (i) conduct any business, or engage in any
transaction or dealing, with any Prohibited Person, including, but not limited
to, the making or receiving of any contribution of funds, goods, or services, to
or for the benefit of a Prohibited Person; or (ii) engage in or conspire to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in
EO13224.
8.10 Change in Status. Without giving prior notice thereof to Lender,
neither Borrower shall change its name. Without giving prior notice thereof to
Lender, MP shall not change its principal place of business or state of
formation.
8.11 Swaptions. MP shall not cause or permit any Disposition of the
Swaptions nor any Modifications or termination thereof. MP shall not default on
any of its obligations with respect to
15
the Swaptions. Borrowers shall not, and shall not permit any Borrower Party to,
enter into any other transaction with the Swap Provider of any other Person
which would give rise to any netting or off-set rights (or any other rights or
remedies) on the part of the Swap Provider or such other Person with respect to
the Swaptions.
ARTICLE 9 EVENTS OF DEFAULT. Upon the occurrence of any of the following
events (an "Event of Default"):
9.1 Borrowers shall fail to make any payment of principal or interest
on the Interim Loan on the date when due or shall fail to pay any other
Obligation when due, including any mandatory prepayment of the Interim Loan
required pursuant to Section 3.4 hereof; or
9.2 Any representation or warranty made by any of Borrower Parties in
any Loan Document or in connection with any Loan Document shall be inaccurate or
incomplete in any material respect on or as of the date made or deemed made; or
9.3 Any of Borrower Parties shall default in the observance or
performance of any covenant or agreement contained in Article 8 above or Section
7.13; or
9.4 Any of Borrower Parties shall fail to observe or perform any other
term or provision contained in the Loan Documents and such failure shall
continue for thirty (30) days following notice thereof from Lender; or
9.5 (1) Any of Borrower Parties shall commence any case, proceeding or
other action (i) under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (ii) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or making a general assignment for the benefit
of its creditors; or (2) there shall be commenced against any of Borrower
Parties any case, proceeding or other action of a nature referred to in clause
(1) above which (i) results in the entry of an order for relief or any such
adjudication or appointment, or (ii) remains undismissed, undischarged or
unbonded for a period of sixty (60) days; or (3) there shall be commenced
against any of Borrower Parties any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or substantially all of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged, stayed,
satisfied or bonded pending appeal within sixty (60) days from the entry
thereof; or (4) any of Borrower Parties shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in (other than in
connection with a final settlement), any of the acts set forth in clause (1),
(2) or (3) above; or (5) any of Borrower Parties shall generally not, or shall
be unable to, or shall admit in writing its inability to pay its debts as they
become due; or
9.6 One or more judgments or decrees in an aggregate amount in excess
of $100,000 (excluding judgments and decrees covered by insurance, without
giving effect to self-insurance or deductibles) shall be entered and be
outstanding at any date against any of Borrower Parties and such judgments or
decrees shall not have been vacated, discharged, stayed, satisfied or bonded
pending appeal (or otherwise secured in a manner satisfactory to Lender in its
reasonable judgment) within thirty (30) days from the entry thereof or in any
event later than five days prior to the date of any proposed sale thereunder; or
16
9.7 MP shall default on any of its obligations under the Swaptions;
or
9.8 Any Event of Default shall occur under any of the other Loan
Documents; or
9.9 There shall occur a Change in Control;
THEN,
automatically upon the occurrence of an Event of Default under Section 9.5
above, and in all other cases, at the election of Lender, (i) Lender may
exercise all rights and remedies under the Loan Documents; (ii) the outstanding
principal balance of the Interim Loan and interest accrued but unpaid thereon
and all other Obligations shall become immediately due and payable, without
demand upon or presentment to any of Borrowers, which are expressly waived by
Borrowers, and (iii) Lender may immediately exercise all rights, powers and
remedies available to them at law, in equity or otherwise, including under the
other Loan Documents, all of which rights, powers and remedies are cumulative
and not exclusive.
ARTICLE 10 RELATIONSHIP BETWEEN BORROWERS.
10.1 Each Borrower hereby unconditionally agrees to be obligated on
the Obligations on a joint and several basis.
10.2 Lender shall be fully protected in relying on instructions,
notices, consents, and other communications from either Borrower, and any
instruction, notice, consent, or other communication by Lender to either
Borrower, or disbursement in accordance with the instructions of either Borrower
shall be construed as instruction, notice, consent, or other communication to
both Borrowers or disbursement in accordance with the instructions of both
Borrowers.
10.3 Each Borrower agrees to be liable, on a joint and several basis,
for the payment of the Obligations, whether or not due or payable by the other
Borrower, upon: (a) the insolvency or business failure of, or any assignment for
benefit of creditors by, or commencement of any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceedings by or against, the
other Borrower, or (b) the appointment of a receiver for, or the attachment,
restraint of or making or levying of any order of court or legal process
affecting, the property of the other Borrower, and unconditionally promises to
pay such Obligations to Lender, or order, on demand, in lawful money of the
United States.
10.4 The liability of each Borrower hereunder is exclusive and
independent of any security for or other guaranty of the Obligations, whether
executed by any Borrower or by any other party, and the liability of each
Borrower hereunder is not affected or impaired by (a) any direction of
application of payment by the other Borrower or by any other party or by Lender,
(b) any payment on or in reduction of any such other guaranty or undertaking
(except to the extent of any resultant reduction in the Obligations), or (d) any
revocation or release of any obligations of any Guaranty of the Obligations, or
(e) any payment or reborrowing or any payment made to Lender on the Obligations
which Lender repays to a Borrower pursuant to court order in any bankruptcy,
reorganization, arrangement, moratorium or other debtor relief proceeding, and
each Borrower waives any right to the deferral or modification of such
Borrower's obligations hereunder by reason of any such proceeding.
10.5 The obligations of each Borrower hereunder are independent of the
Obligations of the other Borrower, and a separate action or actions may be
brought and prosecuted against either Borrower whether or not action is brought
against both Borrowers and whether or not both Borrowers be joined in any such
action or actions. Any payment by a Borrower or other circumstance which
operates
17
to toll any statute of limitations as to such Borrower shall operate to toll the
statute of limitations as to the other Borrower.
10.6 Each Borrower authorizes Lender, without notice or demand
(except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time after
an Event of Default, to (a) renew, compromise, extend, increase, accelerate or
otherwise change the time for payment of, or otherwise change the terms of the
Obligations of the other Borrower or any part thereof; (b) take and hold
security for the payment of the Obligations and exchange, enforce, waive and
release any such security; (c) apply such security and direct the order or
manner of sale thereof as Lender in its discretion may determine; and (d)
release or substitute any one or more endorsers, guarantors, the other Borrower
or other obligors. It is not necessary for Lender to inquire into the capacity
or power of either Borrower or the officers acting or purporting to act on
behalf of Borrowers.
10.7 Each Borrower waives any right to require Lender to (a)
proceed against the other Borrower or any other party; (b) proceed against or
exhaust any security held from either Borrower; or (c) pursue any other remedy
in Lender's power whatsoever. Each Borrower waives any personal defense based on
or arising out of any personal defense of the other Borrower other than payment
in full of the Obligations, including any defense based on or arising out of the
disability of the other Borrower, or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the other Borrower other than payment in full of the Obligations.
The Lender may, at its election, foreclose on any security held for the
Obligations by one or more judicial or nonjudicial sales, or exercise any other
right or remedy Lender may have against either Borrower, or any security,
without affecting or impairing in any way the liability of any Borrower
hereunder except to the extent the Obligations have been paid. Each Borrower
waives all rights and defenses that such Borrower may have because the
Obligations are or become secured by real property. This means, among other
things: (a) Lender may collect from any Borrower without first foreclosing on
any collateral pledged by the other Borrower; (b) if Lender forecloses on any
real property collateral pledged by a Borrower: (1) the amount of the
Obligations may be reduced only by the price for which that collateral is sold
at the foreclosure sale, even if the collateral is worth more than the sale
price, and (2) Lender may collect from the other Borrower even if Lender, by
foreclosing on the collateral, has destroyed any right a Borrower may have to
collect from such other Borrower.
10.8 Effective until the Obligations have been paid and performed
in full and the period of time has expired during which any payment made by
either Borrower to Lender may be determined to be a preferential payment, each
Borrower hereby agrees not to enforce any rights or remedies with respect to any
such claim or any other rights which such Borrower may now have or may hereafter
acquire against the other Borrower of all or any of the Obligations that arise
from the existence or performance of each Borrower's obligations under this
Agreement or any other of the Loan Documents, and agrees that any and all such
rights or remedies of each Borrower shall be subordinated to the prior payment
in full in cash of the Obligations (any such claims and rights being referred to
as the "Conditional Rights"), including any right of subrogation, reimbursement,
exoneration, contribution, or indemnification, any right to participate in any
claim or remedy which Lender has against the other Borrower or any collateral
which Lender now has or hereafter acquires for the Obligations, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, by any payment made hereunder or otherwise, including the right to
take or receive from the other Borrower, directly or indirectly, in cash or
other property or by setoff or in any other manner, payment or security on
account of such claim or other rights. If, notwithstanding the foregoing
provisions, any amount shall be paid to any Borrower on account of such
Borrower's Conditional Rights and either (a) such amount is paid to such
Borrower at any time when the Obligations shall not have been paid or performed
in full, or
18
(b) regardless of when such amount is paid to such Borrower any payment made by
the other Borrower to Lender is at any time determined to be a preferential
payment, then such amount paid to such Borrower shall be deemed to be held in
trust for the benefit of Lender and shall forthwith be paid to Lender to be
credited and applied upon the Obligations, whether matured or unmatured, in such
order and manner as Lender, in its sole discretion, shall determine. To the
extent that any of the provisions of this subparagraph shall not be enforceable,
each Borrower agrees that until such time as the Obligations have been paid and
performed in full and the period of time has expired during which any payment
made by the other Borrower to Lender may be determined to be a preferential
payment, any Borrower's Conditional Rights to the extent not validly waived
shall be subordinate to Lender's right to full payment and performance of the
Obligations and no Borrower shall seek to enforce such Borrower's Conditional
Rights during such period.
10.9 Each Borrower waives all presentments, demands for performance,
protests and notices, including notices of nonperformance, notices of protest,
notices of dishonor, notices of acceptance of this Agreement, and notices of the
existence, creation or incurring of new or additional Obligations. Each Borrower
assumes all responsibility for being and keeping itself informed of the other
Borrower's financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Obligations and the nature, scope and
extent of the risks which each Borrower assumes and incurs hereunder, and agrees
that Lender shall have no duty to advise either Borrower of information known to
it regarding such circumstances or risks.
ARTICLE 11 MISCELLANEOUS PROVISIONS.
11.1 No Assignment by Borrower. Borrowers may not assign their
rights or obligations under this Agreement or the other Loan Documents without
the prior written consent of Lender, which consent may be withheld in Lender's
sole and absolute discretion. Subject to the foregoing, all provisions
contained in this Agreement and the other Loan Documents and in any document or
agreement referred to herein or therein or relating hereto or thereto shall
inure to the benefit of Lender and its successors and assigns, and shall be
binding upon Borrowers and their respective successors, assigns, heirs,
representatives and executors.
11.2 Modification. Neither this Agreement nor any other Loan
Document may be Modified or waived unless such Modification or waiver is in
writing and signed by Borrowers and Lender.
11.3 Cumulative Rights; No Waiver. The rights, powers and remedies
of Lender hereunder and under the other Loan Documents are cumulative and in
addition to all rights, power and remedies provided under any and all
agreements among Borrowers and Lender relating hereto, at law, in equity or
otherwise. Any delay or failure by Lender to exercise any right, power or
remedy shall not constitute a waiver thereof by Lender, and no single or
partial exercise by Lender of any right, power or remedy shall preclude other
or further exercise thereof or any exercise of any other rights, powers or
remedies.
11.4 Entire Agreement. This Agreement, the other Loan Documents and
the schedules, appendices, documents and agreements referred to herein and
therein embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
11.5 Survival. All representations, warranties, covenants and
agreements contained in this Agreement and the other Loan Documents on the part
of Borrowers shall survive the termination of
19
this Agreement and shall be effective until the Obligations are paid and
performed in full or longer as expressly provided herein.
11.6 Notices. All notices given by any party to the others under
this Agreement and the other Loan Documents shall be in writing unless otherwise
provided for herein, and any such notice shall become effective (i) upon
personal delivery thereof, including, but not limited to, delivery by overnight
mail and courier service, (ii) four (4) days after it shall have been mailed by
United States mail, first class, certified or registered, with postage prepaid,
or (iii) in the case of notice by a telecommunications device, when properly
transmitted, in each case addressed to the party at the address set forth on
Schedule 11.6 attached hereto. Any party may change the address to which notices
are to be sent by notice of such change to each other party given as provided
herein. Such notices shall be effective on the date received or, if mailed, on
the third Business Day following the date mailed.
11.7 Governing Law. This Agreement and the other Loan Documents
shall be governed by and construed in accordance with the laws of the State of
New York without giving effect to its choice of law rules.
11.8 Assignment by Lender. Lender shall have the right from time to
time in its discretion to effect a Subsequent Market Transaction. Borrowers
agree to cooperate Lender, at Lender's request, in order to effectuate any such
Subsequent Market Transaction. In the case of an assignment of all or any
portion of a Lender's interest in the Loan, (i) each assignee shall have, to the
extent of such assignment, the rights, benefits and obligations of the assigning
Lender as a "Lender" hereunder and under the other Loan Documents, and (ii) the
assigning Lender shall, to the extent that rights and obligations hereunder have
been assigned by it, relinquish its rights and be released from its obligations
under this Agreement. Notwithstanding anything in this Agreement to the
contrary, after an assignment of all or any portion of a Lender's interest in
the Loan, the assigning Person (in addition to the assignee) shall continue to
have the benefits of any indemnifications contained herein which such assigning
Lender had prior to such assignment with respect to matters occurring prior to
the date of such assignment.
11.9 Counterparts. This Agreement and the other Loan Documents may
be executed in any number of counterparts, all of which together shall
constitute one agreement.
11.10 Consent to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF
NEW YORK LOCATED IN
NEW YORK COUNTY OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS
CREDIT AGREEMENT, BORROWERS AND LENDER EACH CONSENT, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
BORROWERS AND LENDER EACH IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. BORROWERS AND LENDER EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
11.11 Waiver of Jury Trial. BORROWER AND LENDER EACH WAIVES ITS RIGHT
TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR
20
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. BORROWER AND LENDER EACH AGREE THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, EACH SUCH PARTY FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A
TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
11.12 Indemnity. Whether or not the transactions contemplated hereby
are consummated, Borrowers shall indemnify and hold Lender and each of it
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including reasonable attorney's fees and
expenses) of any kind or nature whatsoever which may at any time (including at
any time following repayment of the Interim Loan) be imposed on, incurred by or
asserted against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any insolvency
proceeding or appellate proceeding) related to or arising out of this Agreement
or the Interim Loan or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided, however, that Borrowers shall have no
obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful misconduct of
such Indemnified Person. The agreements in this Section 11.12 shall survive
payment of all other Obligations.
11.13 Telephonic Instruction. Any agreement of Lender herein to
receive certain notices by telephone is solely for the convenience and at the
request of Borrowers. Lender shall be entitled to rely on the authority of any
Person purporting to be a Person authorized by Borrower to give such notice and
Lender shall not have any liability to Borrowers or other Person on account of
any action taken or not taken by Lender in reliance upon such telephonic notice.
The obligation of Borrowers to repay the Interim Loan shall not be affected in
any way or to any extent by any failure by Lender to receive written
confirmation of any telephonic notice or the receipt by Lender of a confirmation
which is at variance with the terms understood by Lender to be contained in the
telephonic notice.
11.14 Marshalling. Lender shall not be under any obligation to
marshal any assets in favor of any Borrower or any other Person or against or in
payment of any or all of the Obligations.
11.15 Set-off. In addition to any rights and remedies of Lender
provided by law, if an Event of Default exists, Lender is authorized at any time
and from time to time, without prior notice to Borrowers, any such notice being
waived by Borrowers to the fullest extent permitted by law, to set off and apply
in favor of Lender any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing to, Lender to or for the credit or the account of Borrowers against any
and all of the Obligations, now or hereafter existing, irrespective of
21
whether or not Lender shall have made demand under this Agreement or any Loan
Document and although such Obligations may be contingent or unmatured.
11.16 Severability. The illegality or unenforceability of any
provision of this Agreement or any other Loan Document or any instrument or
agreement required hereunder or thereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions hereof or thereof.
11.17 No Third Parties Benefited. This Agreement and the other Loan
Documents are made and entered into for the sole protection and legal benefit of
Borrowers, Lender and their respective permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this Agreement
or any of the other Loan Documents.
11.18 Time. Time is of the essence as to each term or provision of
this Agreement and each of the other Loan Documents.
[Signature page follows.]
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BORROWERS:
XXXXXXX PROPERTIES, L.P., a Maryland limited partnership
By: Xxxxxxx Properties, Inc., a Maryland corporation, its
general partner
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxx
-----------------------------------
Title: Chief Financial Officer
-----------------------------------
/s/ Xxxxxx X. Xxxxxxx III
-------------------------------------------
XXXXXX X. XXXXXXX III, a natural person
LENDER:
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------------------------
Title: Director
----------------------------------------------
S-1
ANNEX I
GLOSSARY
THIS GLOSSARY is attached to and made a part of that certain
Credit
Agreement (the "
Credit Agreement") dated as of June 3, 2003 by and between
XXXXXXX PROPERTIES, L.P., a Maryland limited partnership ("MP"), and XXXXXX X.
XXXXXXX III ("Xxxxxxx"), as borrowers (each, a "Borrower", and together,
"Borrowers"), and DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH, as lender ("Lender").
For purposes of the
Credit Agreement and the other Loan Documents, the terms set
forth below shall have the following meanings:
"Act" shall have the meaning given such term in Section 6.13 of the
Credit Agreement.
"Affiliate" shall mean, as to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with, such Person. "Control" as used herein shall mean the power to direct the
management and policies of such Person.
"Applicable Parties" shall have the meaning given such term in Section
6.15 of the
Credit Agreement.
"Applicable Interest Rate" shall mean, subject to Section 2.10 of the
Credit Agreement, the LIBO Rate in effect from time to time plus twelve percent
(12%) or, to the extent provided in Section 2.3 and 2.4 of the Credit Agreement,
the Base Rate.
"Assets" shall mean, with respect to a Person, any and all real and
tangible and intangible personal property owned or occupied by the such Person,
including all Capital Stock owned by such Person and, in the case of MP,
including the Swaptions.
"Base Rate" shall mean on any day the higher of: (a) the Prime Rate in
effect on such day plus ten percent (10%), and (b) the sum of the Federal Funds
Rate in effect on such day plus ten percent (10%).
"Blackacre Facility" shall that certain Omnibus Amendment of Loan
Documents dated as of July 13, 2001, by and between Blackacre Solana Capital
LLC, as lender, and Xxxxxxx Partners - Solana Limited Partnership, as borrower,
together with the other "Loan Documents" referred to therein, in each case as
Modified prior to the date hereof.
"Borrower Party" and "Borrower Parties" shall mean, individually and
collectively, each Borrower, MP's general partner, and each Borrower's
Subsidiaries.
"Borrower" and "Borrowers" shall mean, individually and collectively,
MP and Xxxxxxx.
"BOW" shall mean Bank of the West.
"BOW Facility" shall mean that certain Amended and Restated Revolving
Loan Agreement dated as of March 23, 2001, by and between BOW (as successor to
Sanwa Bank California), as lender, and Xxxxxxx Partners Development, Ltd., as
borrower, together with the other "Loan Documents" referred to therein, in each
case as Modified prior to the date hereof.
Annex I
1
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banks in
New York,
New York are authorized or obligated to close
their regular banking business.
"Capital Stock" shall mean (a) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class or series of common stock and preferred stock of such Person and (b)
with respect to any Person that is not a corporation, any and all investment
units, partnership, membership or other interests of such Person.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of the Credit Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of the Credit Agreement or (c) compliance
by Lender (or by any lending office of Lender or by Lender's holding company, if
any) with any guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of the Credit
Agreement.
"Change in Control" shall mean any Disposition of the Capital Stock in
MP, MP's general partner or any Subsidiary of MP.
"Closing Certificate" shall mean a certificate in the form attached to
the Credit Agreement as Exhibit A.
"Closing Date" shall mean the date as of which all conditions set forth
in Section 5.1 of the Credit Agreement shall have been satisfied or waived and
the Interim Loan shall have been funded.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the rules and regulations promulgated thereunder, as from time to time in
effect.
"Conditional Rights" shall have the meaning given such term in Section
10.8 of the Credit Agreement.
"Contact Office" shall mean the office of Lender located at Deutsche
Bank 00 Xxxx Xxxxxx 00xx Xxxxx, XXX00-0000, Xxx Xxxx, XX 00000, or such other
offices in
New York, New York as the Lender may notify the Borrower from time to
time in writing.
"Contingent Obligation" shall mean any obligation of a Person directly
or indirectly guaranteeing any Debt of any other Person in any manner and any
contingent obligation to purchase, to provide funds for payment, to supply funds
to invest in any other Person or otherwise to assure a creditor against loss.
"Contractual Obligation" shall mean, with respect to a Person, any
provision of any security issued by such Person or of any agreement, instrument
or undertaking to which such Person is a party or by which it or any of its
Assets are bound.
"Commercial Purposes Certificate" shall mean a certificate in the form
attached to the Credit Agreement as Exhibit B.
"Credit Agreement" shall mean the Credit Agreement defined in the
introductory paragraph of this Glossary, as the same may be Modified, extended
or replaced from time to time.
Annex I
2
"Disposition" shall mean the sale, conveyance, pledge, hypothecation,
ground lease, encumbrance, creation of a security interest with respect to, or
other transfer, whether voluntary or involuntary, direct or indirect, of any
legal or beneficial interest in any Asset, including any Capital Stock and, in
the case of MP, the Swaptions.
"Distribution" shall mean, with respect to a Person, any distribution
of cash or cash equivalents, directly or indirectly, to the holders of the
Capital Stock of such Person.
"Eligible Transferee" shall mean (a) a commercial bank organized under
the laws of the United States, or any state thereof, (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development or a political subdivision
of any such country, (c) a finance company, insurance or other financial
institution, or fund that is engaged in making, purchasing, or otherwise
investing in commercial loans in the ordinary course of its business, (d) any
Affiliate of the Lender, and (e) any other Person approved by Borrower (such
approval not to be unreasonably withheld).
"EO13224" shall have the meaning given such term in Section 6.15 of the
Credit Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as Modified, and the rules and regulations promulgated thereunder as from time
to time in effect.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) under common control with any Consolidated Entity within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) for
purposes of provisions relating to Section 412 of the Code).
"Event of Default" shall have the meaning given such term in Section 9
of the Credit Agreement.
"Excluded Taxes" shall mean, with respect to Lender or any other
recipient of any payment to be made by or on account of any obligation of
Borrowers hereunder, income or franchise taxes imposed on (or measured by) its
net income by the United States of America, or by any state, locality or foreign
jurisdiction under the laws of which such recipient is organized or in which it
maintains an office or permanent establishment.
"Federal Funds Rate" shall mean for any day, an interest rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 1:00 p.m. (New York
time) on such day on such transactions received by Lender from three Federal
funds brokers of recognized standing selected by Lender in its sole discretion.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time; provided that for purposes
of calculating the covenants set forth in Section 8.12 and Section 8.13 of the
Credit Agreement, GAAP shall mean generally accepted accounting principles in
the United States of America in effect as of the Closing Date.
"Good Faith Contest" shall mean the contest of an item if (a) the item
is diligently contested in good faith, and, if appropriate, by proceedings
timely instituted, (b) adequate reserves are established if required by, and in
accordance with, GAAP with respect to the contested item, (c) during the period
of such contest, the enforcement of any contested item is effectively stayed and
(d) the failure to pay or
Annex I
3
comply with the contested item during the period of the contest will not result
in a Material Adverse Effect.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any court or other entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Materials" shall mean any flammable materials, explosives,
radioactive materials, hazardous wastes, toxic substances or related materials,
including any substances defined as or included in the definitions of "hazardous
substances," "hazardous wastes," "hazardous materials," or "toxic substances"
under any applicable federal, state, or local laws or regulations.
"Hazardous Materials Claims" shall mean any enforcement, cleanup,
removal or other governmental or regulatory action or order with respect to any
Assets of a Person, pursuant to any Hazardous Materials Laws, and/or any claim
asserted in writing by any third party relating to damage, contribution, cost
recovery compensation, loss or injury resulting from any Hazardous Materials.
"Hazardous Materials Laws" shall mean any applicable federal, state or
local laws, ordinances or regulations relating to Hazardous Materials.
"Indebtedness" of any Person shall mean: (a) all liabilities and
obligations of such Person, whether consolidated or representing the
proportionate interest in any other Person, including all liabilities and
obligations (i) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof, and including construction loans), (ii) evidenced by bonds, notes,
debentures or similar instruments, (iii) representing the balance deferred and
unpaid of the purchase price of any property or services, including the deferred
purchase price of real property, (iv) evidenced by bankers' acceptances, (v)
consisting of obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from property now or hereafter owned or
acquired by such Person, (vi) consisting of liabilities and obligations under
any receivable sales transactions, or (vii) consisting of a letter of credit or
a reimbursement obligation of such Person with respect to any letter of credit;
and (b) all Contingent Obligations and liabilities and obligations of others of
the kind described in the preceding clause (a) that such Person has guaranteed
or that is otherwise its legal liability and all obligations to purchase, redeem
or acquire for cash or non-cash consideration any Capital Stock.
"Indemnified Liabilities" shall have the meaning given such term in
Section 11.12 of the Credit Agreement.
"Indemnified Person" shall have the meaning given such term in Section
11.12 of the Credit Agreement.
"Indemnified Taxes" shall mean any Taxes, other than Excluded Taxes,
arising, directly or indirectly, from the transactions contemplated by the
Agreement, including any Taxes imposed with respect to any payment made under
any Loan Document.
"Initial Public Offering" shall mean the initial public offering by the
general partner of MP of its shares of common stock as more particularly set
forth in the Registration Statement.
"Interest Period" shall have the meaning give such term in Section
2.1 of the Credit Agreement.
Annex I
4
"Interim Loan" shall have the meaning given such term in Section 1.1 of
the Credit Agreement.
"Lender" shall mean Deutsche Bank AG Cayman Islands Branch and its
successors and assigns.
"LIBO Rate" shall mean the average of interbank offered rates for
30-day dollar deposits in the London market as set forth on page 3750 (i.e., the
LIBOR page), or any successor page, of the Telerate News Services, titled
"British Banker Association Interest Settlement Rates."
"Lien" shall mean any security interest, mortgage, pledge, lien, claim
on property, charge or encumbrance (including any conditional sale or other
title retention agreement), any lease in the nature thereof, and any agreement
to give any security interest.
"Loan Documents" shall mean the Credit Agreement, the Note, the
Security Agreement, the Guaranty, and each other instrument, certificate or
agreement executed by any Borrower Party in connection herewith, as any of the
same may be Modified from time to time.
"Xxxxxxx" shall mean Xxxxxx X. Xxxxxxx III and his permitted assigns.
"Margin Stock" shall mean "margin stock" as defined in Regulation U.
"Material Adverse Effect" shall mean, with respect to any Person, a
material adverse change in, or a material adverse effect upon, (a) the
operations, business, properties, condition (financial or otherwise) or
prospects of such Person or (b) the ability of either Borrower to perform, or of
Lender to enforce, the provisions of any Loan Document.
"Maturity Date" shall mean June 30, 2003.
"Modifications" shall mean any amendments, supplements, modifications,
renewals, replacements, consolidations, severances, substitutions and extensions
of any document or instrument from time to time; "Modify", "Modified," or
related words shall have meanings correlative thereto.
"MP" shall mean Xxxxxxx Properties, L.P., a Maryland limited
partnership, and its successors and permitted assigns.
"Note" shall mean a promissory note in the form of that attached to the
Credit Agreement as Exhibit C issued by Borrower at the request of the Lender
pursuant to Section 3.1 of the Credit Agreement.
"Obligations" shall mean any and all debts, obligations and liabilities
of Borrowers or the other Borrower Parties to Lender (whether now existing or
hereafter arising, voluntary or involuntary, whether or not jointly owed with
others, direct or indirect, absolute or contingent, liquidated or unliquidated,
and whether or not from time to time decreased or extinguished and later
increased, created or incurred) and arising out of or related to the Loan
Documents.
"OFAC" shall have the meaning given such term in Section 6.15 of the
Credit Agreement.
"Organizational Documents" shall mean: (a) for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred shareholders of
such corporation, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation, (b) for any partnership, the
partnership agreement, any certificate of formation, and any other instrument or
agreement relating to the rights between the partners or
Annex I
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pursuant to which such partnership is formed, (c) for any limited liability
company, the operating agreement, any articles of organization or formation, and
any other instrument or agreement relating to the rights between the members,
pertaining to the manager, or pursuant to which such limited liability company
is formed, (d) for any trust, the trust agreement and any other instrument or
agreement relating to the rights between the trustors, trustees and
beneficiaries, or pursuant to which such trust is formed, and (e) in the case of
any of the forgoing documents, all Modifications thereto.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies of a Governmental Authority with respect to any payment made under any
Loan Document or the execution, delivery or enforcement of any Loan Document.
"Permitted Xxxxxxx Indebtedness" shall mean, with respect to Xxxxxxx,
(a) Indebtedness existing as of the date hereof in amounts not to exceed the
amounts outstanding as of the date hereof, (b) additional Indebtedness, not to
exceed $100,000 in the aggregate, for consumer and household purposes, (c)
additional Indebtedness, not to exceed $1,000,000 in the aggregate, for purposes
of paying the expenses of the Initial Public Offering, to the extent such
additional Indebtedness is, by its express terms, subordinate to the Interim
Loan and notice of which has been provided to Lender, and (d) additional
guaranties of customary and reasonable carve-outs to non-recourse liabilities
given by Xxxxxxx in connection with secured loans made to Xxxxxxx'x
Subsidiaries.
"Person" shall mean any corporation, natural person, firm, joint
venture, partnership, trust, unincorporated organization, government or any
department or agency of any government.
"Plan" shall mean an employee benefit plan (as defined in Section 3(3)
of ERISA) which the Consolidated Entities or any ERISA Affiliate sponsors or
maintains or to which the Consolidated Entities or any ERISA Affiliate makes, is
making, or is obligated to make contributions and includes any Pension Plan,
other than a Multiemployer Plan.
"Plan Assets" shall mean assets of any Plan, including any employee
benefit plan subject to Part 4, Subtitle A, Title I of ERISA.
"Potential Default" shall mean an event which but for the lapse of time
or the giving of notice, or both, would constitute an Event of Default.
"Prime Rate" shall mean the fluctuating per annum rate announced from
time to time by Deutsche Bank Trust Company Americas at its principal office in
New York, New York as its "prime rate". The Prime Rate is a rate set by Deutsche
Bank Trust Company Americas as one of its base rates and serves as the basis
upon which effective rates of interest are calculated for those loans making
reference thereto, and is evidenced by the recording thereof after its
announcement in such internal publication or publications as Deutsche Bank Trust
Company Americas may designate. The Prime Rate is not tied to any external index
and does not necessarily represent the lowest or best rate of interest actually
charged to any class or category of customers. Each change in the Prime Rate
will be effective on the day the change is announced within Deutsche Bank Trust
Company Americas.
"Prohibited Person" shall have the meaning given such term in Section
6.15 of the Credit Agreement.
"Registration Statement" shall mean that certain Registration Statement
on Form S-11 (No. 333-101170), as amended, of Xxxxxxx Properties, Inc.,
originally filed on November 12, 2002 with, and
Annex I
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currently under review by the United States Securities and Exchange Commission,
in connection with the initial public offering of such Person's common stock.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and shall include any
successor or other regulation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve System.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System (12 C.F.R. Section 221), as the same may from time to
time be amended, supplemented or superseded.
"Requirements of Law" shall mean, as to any Person, the Organizational
Documents of such Person, and any law, treaty, rule or regulation, or a final
and binding determination of an arbitrator or a determination of a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Riverside Facility" shall mean the credit facility evidenced by that
certain Amended and Restated Promissory Note dated as of December 13, 2002, made
by Xxxxxx X. Xxxxxxx III in favor of Riverside Finance Company, L.L.C., together
with the other "Loan Documents" referred to therein, in each case as Modified
prior to the date hereof.
"Securities" shall mean any stock, shares, partnership interests,
voting trust certificates, certificates of interest or participation in any
profit sharing agreement or arrangement, bonds, debentures, options, warrants,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"Salaries" shall mean salaries and wages, in an amount not to exceed
(in the aggregate) $100,000 per month, paid to Xxxxxxx by his subsidiaries in
his capacity as an officer or employee thereof.
"Solvent" shall mean, when used with respect to any Person, that at the
time of determination: (a) the fair saleable value of its assets is in excess of
the total amount of its liabilities (including contingent liabilities); (b) the
present fair saleable value of its assets is greater than its probable liability
on its existing debts as such debts become absolute and matured; (c) it is then
able and expects to be able to pay its debts (including contingent debts and
other commitments) as they mature; and (c) it has capital sufficient to carry on
its business as conducted and as proposed to be conducted.
"Subsequent Market Transaction" shall mean any of: (a) the sale,
pledge, assignment or other transfer of the Interim Loan or any interest therein
to one or more Eligible Transferees, and (b) the transfer of a participation
interest in the Interim Loan to one or more Eligible Transferees.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or similar
business organization with respect to which such Person (a) owns more than ten
percent (10%) of the Capital Stock or (b) has the ability to exercise control.
For purposes hereof, a Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, by contract or otherwise.
"Swaptions" shall mean, collectively, (a) that certain European Payer
Swaption in the sum of $301,000,000, sold by Swap Provider (as hereinafter
defined) to Borrower with a trade date of June 2,
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7
2003 and a settlement date of June 4, 2003, (b) that certain European Payer
Swaption in the sum of $235,000,000, sold by Swap Provider to Borrower with a
trade date of June 2, 2003 and a settlement date of June 4, 2003, (c) that
certain European Payer Swaption in the sum of $242,000,000, sold by Swap
Provider to Borrower with a trade date of June 2, 2003 and a settlement date of
June 4, 2003, each as evidenced by those certain letter agreement confirmations
dated as of June 4, 2003, between Borrower and Swap Provider, and the 1992 ISDA
Master Agreement (Multicurrency-Cross Border) referenced therein, and all
modifications, amendments, supplements, and/or extensions thereto, together with
all of Borrower's rights thereunder, including, without limitation, any rights
to payment, exercise, and performance thereunder and all proceeds thereof.
"Swap Provider" shall mean Deutsche Bank AG, New York Branch.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"UCC" shall mean the Uniform Commercial Code.
Other Interpretive Provisions:
(1) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms. Terms (including uncapitalized
terms) not otherwise defined herein and that are defined in the UCC shall have
the meanings therein described.
(2) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, subsection, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(3) The term "documents" includes any and all instruments, documents,
agreements, certificates, indentures, notices and other writings, however
evidenced.
(4) The term "including" is not limiting and means "including without
limitation."
(5) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including," the words "to"
and "until" each mean "to but excluding," and the word "through" means "to and
including."
(6) The term "property" includes any kind of property or asset, real,
personal or mixed, tangible or intangible.
(7) The verb "exists" and its correlative noun forms, with reference to
a Potential Default or an Event of Default, means that such Potential Default or
Event of Default has occurred and continues uncured and unwaived.
(8) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent Modifications thereto, but only to the extent
such Modifications are not prohibited by the terms of any Loan Document, (ii)
references to any statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation, and (iii) references to
any Person include its permitted successors and assigns.
Annex I
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(9) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
Annex I
9
SCHEDULE 5.1(2)
ADDITIONAL CONDITIONS PRECEDENT TO FUNDING INTERIM LOAN
Borrower shall have delivered or shall have had delivered to Lender
each of the following in form and substance satisfactory to Lender in its sole
and absolute discretion:
(1) A duly executed copy of the Swaptions;
(2) Such credit applications, certified financial statements,
authorizations, reports, audits and evaluations concerning Borrowers and their
respective business, operations and condition (financial and otherwise) as
Lender may request; and
(3) Such documentation as Lender may require to establish the due
organization, valid existence and good standing of MP, its qualification to
engage in business in each material jurisdiction in which it is engaged in
business or required to be so qualified, its authority to execute, deliver and
perform the Loan Documents, the identity, authority and capacity of each Person
authorized to act on its behalf, including (if applicable) certified copies of
articles of incorporation or organization and amendments thereto, bylaws or
operating agreements and amendments thereto, certificates of good standing
and/or qualification to engage in business, tax clearance certificates,
certificates of corporate or other organizational resolutions, incumbency
certificates, certificates of members, managers, secretaries, officers and
general partners, and the like.
Schedule 5.1(2)
1
EXHIBIT A
FORM OF CLOSING CERTIFICATE
The undersigned, being (a) the duly appointed and acting
____________________ of XXXXXXX PROPERTIES, INC., a Maryland corporation (the
"Company"), the sole general partner of XXXXXXX PROPERTIES, L.P., a Maryland
limited partnership ("MP"), and (b) XXXXXX X. XXXXXXX III (together with MP,
"Borrower"), DO HEREBY CERTIFY to DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH
("Lender") as follows:
1. The Credit Agreement referred to herein is that certain $6,000,000
Interim Loan Credit Agreement dated as of the date hereof (the "Credit
Agreement"), by and between Borrower and Lender. Initially-capitalized terms
used herein and not otherwise defined have the meanings ascribed to such terms
in the Credit Agreement.
2. Each of the representations and warranties made by Borrower set
forth in the Credit Agreement and in the other Loan Documents are accurate and
complete on and as of the date hereof (unless any such representation and
warranty speaks of a particular date, in which case it is accurate and complete
as of such date).
3. No Potential Default has occurred and is continuing nor has any
Event of Default occurred, and all of the conditions to closing set forth in
Article 5 have been satisfied.
IN WITNESS WHEREOF, the undersigned have hereunto signed his name on
this ___ day of June, 2003.
By:
------------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
XXXXXX X. XXXXXXX III, a natural person
Exhibit A
1
EXHIBIT B
FORM OF COMMERCIAL PURPOSES CERTIFICATE
THE UNDERSIGNED, XXXXXXX PROPERTIES, L.P., A MARYLAND LIMITED
PARTNERSHIP, AND XXXXXX X. XXXXXXX III ("BORROWERS"), ARE EXECUTING AS OF THE
DATE OF THIS COMMERCIAL PURPOSES CERTIFICATE A CREDIT AGREEMENT DATED
SUBSTANTIALLY CONURRENTLY HEREWITH WITH DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH.
BORROWERS ACKNOWLEDGE, AGREE, REPRESENT AND WARRANT THAT OBLIGATIONS OF
BORROWERS ARE BEING INCURRED FOR AND IN CONNECTION WITH A TRANSACTION FOR
COMMERCIAL OR BUSINESS PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD
PURPOSES.
EXECUTED THIS ____ DAY OF JUNE, 2003
BORROWERS:
XXXXXXX PROPERTIES, L.P., A MARYLAND
LIMITED PARTNERSHIP
BY: XXXXXXX PROPERTIES, INC., A
MARYLAND CORPORATION, ITS GENERAL
PARTNER
BY:
------------------------------------
NAME:
----------------------------------
TITLE:
---------------------------------
----------------------------------------------
XXXXXX X. XXXXXXX III, A NATURAL PERSON
Exhibit B
1
EXHIBIT C
FORM OF NOTE
$6,000,000.00 June 3, 2003
FOR VALUE RECEIVED, XXXXXXX PROPERTIES, L.P., a limited partnership
organized under the laws of the state of Maryland, and XXXXXX X. XXXXXXX III
(each, a "Borrower", and together, "Borrowers"), each hereby jointly and
severally promises to pay to DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH ("Lender")
or its assignee at the Contact Office, in lawful money of the United States and
in immediately available funds, the sum of SIX MILLION AND NO/100 DOLLARS
($6,000,000.00), on the dates required under that certain $6,000,000.00 Interim
Loan Facility Credit Agreement dated as of even date hereof (as Modified from
time to time, the "Credit Agreement," and with capitalized terms not otherwise
defined herein used with the meanings given such terms in the Credit Agreement),
by and among Borrowers and Lender.
Borrowers jointly and severally agree to pay interest in like money and
funds at the office of Lender referred to above on the unpaid principal balance
hereof from the date advanced until paid in full on the dates and at the
applicable rates set forth in the Credit Agreement. The holder of this Note is
hereby authorized to record the date and amount the Interim Loan advanced by
Lender, the date and amount of each payment of principal and interest, and the
applicable interest rates and other information with respect thereto, on the
schedules annexed to and constituting a part of this Note and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded absent manifest error; provided, however, that the
failure to make a notation or the inaccuracy of any notation shall not affect in
any manner or to any extent the obligations of Borrowers under the Loan
Documents.
This Note is a "Note" within the meaning of, and is entitled to all the
benefits of, the Loan Documents. Reference is hereby made to the Credit
Agreement and the other Loan Documents for, among other things, rights and
obligations of payment and prepayment, Events of Default and the rights of
acceleration of the maturity hereof upon the occurrence of an Event of Default.
This Note shall be governed by, and shall be construed and enforced in
accordance with, the laws of the State of New York, including Section 5-1401 of
the General Obligations Law, but otherwise without regard to choice of law
rules.
[Signature page follows.]
Exhibit C
1
IN WITNESS WHEREOF, Borrowers have caused this Note to be duly executed
as of the date first written above.
BORROWERS:
XXXXXXX PROPERTIES, L.P., a Maryland limited
partnership
By: Xxxxxxx Properties, Inc., a Maryland corporation,
its general partner
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
------------------------------------------------------------
XXXXXX X. XXXXXXX III, a natural person
Exhibit C
2
