FIRST AMENDED AND RESTATED
GUARANTY OF PAYMENT AND PERFORMANCE
FOR AND IN CONSIDERATION OF the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration paid or delivered to the
undersigned MIT UNSECURED L.P., a California limited partnership, formerly
known as DFW Nine Limited Partnership, a California limited partnership
(hereinafter referred to as the "Guarantor"), the receipt and sufficiency
whereof are hereby acknowledged by the Guarantor, and for the purpose of
seeking to induce THE FIRST NATIONAL BANK OF BOSTON, a national banking
association (hereinafter referred to as "FNBB"), and the other Banks which
may now be or hereafter become party to the "Credit Agreement" (as
hereinafter defined) (hereinafter referred to as "Lender" which term shall
also include any such individual Bank acting as agent for all of the Banks),
to extend credit or otherwise provide financial accommodations to MERIDIAN
INDUSTRIAL TRUST, INC., a Maryland corporation (hereinafter referred to as
"Borrower"), the Guarantor does hereby absolutely, unconditionally and
irrevocably guarantee to Lender:
a. the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of (i) that certain
Amended and Restated Note of even date herewith made by Borrower to the order
of FNBB in the principal face amount of Thirty Million and No/100 Dollars
($30,000,000.00) (hereinafter referred to as the "FNBB Note"), and (ii) those
certain Amended and Restated Notes of even date herewith made by Borrower to
the order of the other Banks in the aggregate principal face amount of One
Hundred Twenty Million and No/100 Dollars ($120,000,000.00) (hereinafter
referred to as the "Additional Notes"), together with interest as provided in
the FNBB Note and the Additional Notes, together with any replacements,
supplements, renewals, modifications, consolidations, restatements and
extensions thereof; and
b. the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of each other note as may
be issued under that certain Second Amended and Restated Revolving Credit
Agreement dated of even date herewith (hereinafter referred to as the "Credit
Agreement"; all terms used herein and not otherwise defined herein shall have
the meanings set forth in the Credit Agreement) among Borrower, FNBB, for
itself and as agent, and the other Banks, together with interest as provided
in each such note, together with any replacements, supplements, renewals,
modifications, consolidations, restatements and extensions thereof (the FNBB
Note, the Additional Notes and each of the notes described in this
subparagraph (b) are hereinafter referred to collectively as the "Note"); and
c. the full and prompt payment and performance of all obligations of
Borrower to Lender under the terms of the Credit Agreement, together with any
replacements, supplements, renewals, modifications, consolidations,
restatements and extensions thereof; and
d. the full and prompt payment and performance of any and all other
obligations of Borrower to Lender under any other agreements, documents or
instruments now or hereafter evidencing, securing or otherwise relating to
the indebtedness evidenced by the Note or the Credit
Agreement (the Note, the Credit Agreement and said other agreements,
documents and instruments, are hereinafter collectively referred to as the
"Loan Documents" and individually referred to as a "Loan Document");
PROVIDED, HOWEVER, the liability of the Guarantor hereunder shall not exceed
the Maximum Amount for the Guarantor. As used herein, the term "Maximum
Amount" means, with respect to the Guarantor, the greater of (i) the
aggregate Borrowing Base for all Unencumbered Operating Properties from time
to time owned by the Guarantor or (ii) ninety-five percent (95%) of the
difference, from time to time, of (a) the fair saleable value of the property
of the Guarantor MINUS (b) the total liabilities of the Guarantor (including
the probable liabilities on contingent or unliquidated obligations, but
excluding the obligations of the Guarantor hereunder).
This First Amended and Restated Guaranty of Payment and Performance
amends and restates in its entirety that certain Guaranty of Payment and
Performance dated as of February 26, 1996, made by Guarantor to Lender, as
amended by that certain First Amendment to Guaranty of Payment and
Performance dated March 19, 1996.
The Guarantor does hereby further agree as follows:
1. AGREEMENT TO PAY AND PERFORM; COSTS OF COLLECTION. If the Note is
not paid by Borrower in accordance with its terms, or if any and all sums
which are now or may hereafter become due from Borrower to Lender under the
Loan Documents are not paid by Borrower in accordance with their terms, or if
any and all other obligations of Borrower to Lender under the Note and the
Loan Documents are not performed by Borrower in accordance with their terms,
the Guarantor will immediately make such payments and perform such
obligations. The Guarantor further agrees to pay Lender on demand all
reasonable costs and expenses (including court costs and reasonable
attorneys' fees and disbursements) paid or incurred by Lender in endeavoring
to collect the indebtedness guaranteed hereby, to enforce any of the other
obligations of Borrower guaranteed hereby, or any portion thereof, or to
enforce this Guaranty, and until paid to Lender, such sums shall bear
interest at the default rate set forth in the Credit Agreement unless
collection from the Guarantor of interest at such rate would be contrary to
applicable law, in which event such sums shall bear interest at the highest
rate which may be collected from the Guarantor under applicable law.
2. REINSTATEMENT OF REFUNDED PAYMENTS. If, for any reason, any payment
to Lender of any of the obligations guaranteed hereunder is required to be
refunded by Xxxxxx to Borrower, or paid or turned over to any other person,
including, without limitation, by reason of the operation of bankruptcy,
reorganization, receivership or insolvency laws or similar laws of general
application relating to creditors' rights and remedies now or hereafter enacted,
the Guarantor agrees to pay the amount so required to be refunded, paid or
turned over (the "Turnover Payment"), the obligations of the Guarantor shall not
be treated as having been discharged by the original payment to Lender giving
rise to the Turnover Payment, and this Guaranty shall be treated as having
remained in full force and effect for any such Turnover Payment so made by
Lender, as well as for any amounts not theretofore paid to Lender on account of
such obligations.
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3. RIGHTS OF LENDER TO DEAL WITH COLLATERAL, BORROWER AND OTHER
PERSONS. The Guarantor hereby consents and agrees that Lender may at any
time, and from time to time, without thereby releasing the Guarantor from any
liability hereunder and without notice to or further consent from the
Guarantor, either with or without consideration: release or surrender any
lien or other security of any kind or nature whatsoever held by it or by any
person, firm or corporation on its behalf or for its account, securing any
indebtedness or liability hereby guaranteed; substitute for any collateral so
held by it, other collateral of like kind, or of any kind; modify the terms
of the Note or the Loan Documents; extend or renew the Note for any period;
grant releases, compromises and indulgences with respect to the Note or the
Loan Documents and to any persons or entities now or hereafter liable
thereunder or hereunder; release any other guarantor, surety, endorser or
accommodation party of the Note or any other Loan Documents; or take or fail
to take any action of any type whatsoever. No such action which Lender shall
take or fail to take in connection with the Note or the Loan Documents, or
any of them, or any security for the payment of the indebtedness of Borrower
to Lender or for the performance of any obligations or undertakings of
Borrower, nor any course of dealing with Borrower or any other person, shall
release the Guarantor's obligations hereunder, affect this Guaranty in any
way or afford the Guarantor any recourse against Lender. The provisions of
this Guaranty shall extend and be applicable to all replacements,
supplements, renewals, amendments, extensions, consolidations, restatements
and modifications of the Note and the Loan Documents, and any and all
references herein to the Note and the Loan Documents shall be deemed to
include any such replacements, supplements, renewals, extensions, amendments,
consolidations, restatements or modifications thereof. Without limiting the
generality of the foregoing, the Guarantor acknowledges the terms of Section
18.3 of the Credit Agreement and agrees that this Guaranty shall extend and
be applicable to each new or replacement note delivered by Borrower pursuant
thereto without notice to or further consent from the Guarantor.
4. NO CONTEST WITH XXXXXX; SUBORDINATION. So long as any obligation
hereby guaranteed remains unpaid or undischarged, the Guarantor will not, by
paying any sum recoverable hereunder (whether or not demanded by Xxxxxx) or
by any means or on any other ground, claim any set-off or counterclaim
against Borrower in respect of any liability of the Guarantor to Borrower or,
in proceedings under federal bankruptcy law or insolvency proceedings of any
nature, prove in competition with Lender in respect of any payment hereunder
or be entitled to have the benefit of any counterclaim or proof of claim or
dividend or payment by or on behalf of Borrower or the benefit of any other
security for any obligation hereby guaranteed which, now or hereafter, Lender
may hold or in which it may have any share. The Guarantor hereby expressly
waives any right of contribution from or indemnity against Borrower, whether
at law or in equity, arising from any payments made by the Guarantor pursuant
to the terms of this Guaranty, and the Guarantor acknowledges that it has no
right whatsoever to proceed against Borrower for reimbursement of any such
payments until all indebtedness guaranteed hereby has been completely repaid
and all obligations and undertakings of Borrower under, by reason of, or
pursuant to the Note and the Loan Documents have been completely performed.
In connection with the foregoing, the Guarantor expressly waives any and all
rights of subrogation to Lender against Borrower, and the Guarantor hereby
waives any rights to enforce any remedy which Lender may have against
Borrower and any rights to participate in any collateral for Borrower's
obligations under the Loan Documents. The Guarantor hereby subordinates
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any and all indebtedness of Borrower now or hereafter owed to the Guarantor
to all indebtedness of Borrower to Lender, and agrees with Lender that (a)
the Guarantor shall not demand or accept any payment from Borrower on account
of such indebtedness, (b) the Guarantor shall not claim any offset or other
reduction of the Guarantor's obligations hereunder because of any such
indebtedness, and (c) the Guarantor shall not take any action to obtain any
interest in any of the security described in and encumbered by the Loan
Documents because of any such indebtedness; provided, however, that, if
Lender so requests, such indebtedness shall be collected, enforced and
received by the Guarantor as trustee for Lender and be paid over to Lender on
account of the indebtedness of Borrower to Lender, but without reducing or
affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty except to the extent the principal amount of such
outstanding indebtedness shall have been reduced by such payment.
5. WAIVER OF DEFENSES. The Guarantor hereby agrees that its
obligations hereunder shall not be affected or impaired by, and hereby waives
and agrees not to assert or take advantage of any defense based on:
(a) any statute of limitations in any action hereunder or for the
collection of the Note or for the payment or performance of any obligation
hereby guaranteed;
(b) the incapacity or lack of authority of Borrower or any other
person or entity, or the failure of Lender to file or enforce a claim against
the estate (either in administration, bankruptcy or in any other proceeding)
of Borrower or the Guarantor or any other person or entity;
(c) the dissolution or termination of existence of Borrower or the
Guarantor;
(d) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower;
(e) the voluntary or involuntary receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
assignment, composition, or readjustment of, or any similar proceeding
affecting, Borrower or the Guarantor, or any of Borrower's or the Guarantor's
properties or assets;
(f) the damage, destruction, condemnation, foreclosure or
surrender of all or any part of the Real Estate or any of the improvements
located thereon;
(g) the failure of Lender to give notice of the existence,
creation or incurring of any new or additional indebtedness or obligation or
of any action or nonaction on the part of any other person whomsoever in
connection with any obligation hereby guaranteed;
(h) any failure or delay of Lender to commence an action against
Borrower, to assert or enforce any remedies against Borrower under the Note
or the Loan Documents, or to realize upon any security;
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(i) any failure of any duty on the part of Lender to disclose to
the Guarantor any facts it may now or hereafter know regarding Borrower, the
Real Estate or any of the improvements located thereon, whether such facts
materially increase the risk to the Guarantor or not;
(j) failure to accept or give notice of acceptance of this
Guaranty by Xxxxxx;
(k) failure to make or give notice of presentment and demand for
payment of any of the indebtedness or performance of any of the obligations
hereby guaranteed;
(l) failure to make or give protest and notice of dishonor or of
default to the Guarantor or to any other party with respect to the
indebtedness or performance of obligations hereby guaranteed;
(m) except as otherwise specifically provided in this Guaranty,
any and all other notices whatsoever to which the Guarantor might otherwise
be entitled;
(n) any lack of diligence by Lender in collection, protection or
realization upon any collateral securing the payment of the indebtedness or
performance of obligations hereby guaranteed;
(o) the invalidity or unenforceability of the Note or any of the
Loan Documents;
(p) the compromise, settlement, release or termination of any or
all of the obligations of Borrower under the Note or the Loan Documents;
(q) any transfer by Borrower of all or any part of the security
encumbered by the Loan Documents;
(r) the failure of Lender to perfect any security or to extend or
renew the perfection of any security; or
(s) to the fullest extent permitted by law, any other legal,
equitable or surety defenses whatsoever to which the Guarantor might
otherwise be entitled (other than the defense of payment), it being the
intention that the obligations of the Guarantor hereunder are absolute,
unconditional and irrevocable.
6. GUARANTY OF PAYMENT AND PERFORMANCE AND NOT OF COLLECTION. This is
a Guaranty of payment and performance and not of collection. The liability
of the Guarantor under this Guaranty shall be primary, direct and immediate
and not conditional or contingent upon the pursuit of any remedies against
Borrower or any other person, nor against securities or liens available to
Lender, its successors, successors in title, endorsees or assigns, except as
otherwise provided herein. The Guarantor hereby waives any right to require
that an action be brought against Borrower or any other
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person or to require that resort be had to any security or to any balance of
any deposit account or credit on the books of Lender in favor of Borrower or
any other person.
7. RIGHTS AND REMEDIES OF LENDER. In the event of a default under the
Note or the Loan Documents, or any of them, Lender shall have the right to
enforce its rights, powers and remedies thereunder or hereunder or under any
other agreement, document or instrument now or hereafter evidencing, securing
or otherwise relating to the indebtedness evidenced by the Note or secured by
the Loan Documents, in any order, and all rights, powers and remedies
available to Lender in such event shall be nonexclusive and cumulative of all
other rights, powers and remedies provided thereunder or hereunder or by law
or in equity. Accordingly, the Guarantor hereby authorizes and empowers
Lender upon the occurrence of any event of default under the Note or the Loan
Documents, at its sole discretion, and without notice to the Guarantor, to
exercise any right or remedy which Lender may have, including, but not
limited to, judicial foreclosure, exercise of rights of power of sale,
acceptance of a deed or assignment in lieu of foreclosure, appointment of a
receiver to collect rents and profits, exercise of remedies against personal
property, or enforcement of any assignment of leases, as to any security,
whether real, personal or intangible. At any public or private sale of any
security or collateral for any indebtedness or any part thereof guaranteed
hereby, whether by foreclosure or otherwise, Lender may, in its discretion,
purchase all or any part of such security or collateral so sold or offered
for sale for its own account and may apply against the amount bid therefor
all or any part of the balance due it pursuant to the terms of the Note or
any other Loan Document without prejudice to Xxxxxx's remedies hereunder
against the Guarantor for deficiencies. If the indebtedness guaranteed
hereby is partially paid by reason of the election of Xxxxxx to pursue any of
the remedies available to Lender, or if such indebtedness is otherwise
partially paid, this Guaranty shall nevertheless remain in full force and
effect, and the Guarantor shall remain liable for the entire balance of the
indebtedness guaranteed hereby even though any rights which the Guarantor may
have against Borrower may be destroyed or diminished by the exercise of any
such remedy.
8. APPLICATION OF PAYMENTS. The Guarantor hereby authorizes Xxxxxx,
without notice to the Guarantor, to apply all payments and credits received
from Borrower or from the Guarantor or realized from any security in such
manner and in such priority as Lender in its sole judgment shall see fit to
the indebtedness, obligation and undertakings which are the subject of this
Guaranty.
9. BUSINESS FAILURE, BANKRUPTCY OR INSOLVENCY. In the event of the
business failure of the Guarantor or if there shall be pending any bankruptcy
or insolvency case or proceeding with respect to the Guarantor under federal
bankruptcy law or any other applicable law or in connection with the
insolvency of the Guarantor, or if a liquidator, receiver, or trustee shall
have been appointed for the Guarantor or the Guarantor's properties or
assets, Lender may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of Lender allowed
in any proceedings relative to the Guarantor, or any of the Guarantor's
properties or assets, and, irrespective of whether the indebtedness or other
obligations of Borrower guaranteed hereby shall then be due and payable, by
declaration or otherwise, Lender shall be entitled and empowered to file and
prove a claim for the whole amount of any sums or sums owing with respect to
the indebtedness or other obligations of Borrower guaranteed hereby, and to
collect and receive any moneys or other
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property payable or deliverable on any such claim. The Guarantor covenants
and agrees that upon the commencement of a voluntary or involuntary
bankruptcy proceeding by or against Borrower, the Guarantor shall not seek a
supplemental stay or otherwise pursuant to 11 U.S.C. Section 105 or any other
provision of the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law (whether statutory, common law, case law, or otherwise) of
any jurisdiction whatsoever, now or hereafter in effect, which may be or
become applicable, to stay, interdict, condition, reduce or inhibit the
ability of Lender to enforce any rights of Lender against the Guarantor by
virtue of this Guaranty or otherwise.
10. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Guarantor hereby
represents and warrants to Lender that all financial statements of the
Guarantor heretofore delivered by the Guarantor to Lender are true and
correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently applied, and fairly
present the financial condition of the Guarantor as at the close of business
on the date thereof and the results of operations for the period then ended;
that no material adverse change has occurred in the assets, liabilities,
financial condition or business of the Guarantor as shown or reflected
therein since the date thereof; and that the Guarantor has no liabilities or
known contingent liabilities involving material amounts which are not
reflected in such financial statements or referred to in the notes thereto
other than the Guarantor's obligations under this Guaranty. The Guarantor
hereby agrees that until all indebtedness guaranteed hereby has been
completely repaid, all obligations and undertakings of Borrower under, by
reason of, or pursuant to the Note and the Loan Documents have been
completely performed and Lender has no further obligation to make Loans to
Borrower pursuant to the Credit Agreement, the Guarantor will deliver to
Lender:
(a) as soon as practicable and in any event within 90 days after
the end of each fiscal year of the Guarantor, the audited consolidated
balance sheet of the Guarantor as of the end of such year, and the related
audited consolidated statement of operations and statement of cash flows for
such year, each setting forth in comparative form the figures for the
previous fiscal year and all such statements to be in reasonable detail,
prepared in accordance with generally accepted accounting principles, and
accompanied by an auditor's report prepared without qualification by Xxxxxx
Xxxxxxxx LLP or by another "Big Six" accounting firm. At any time that the
Agent has reasonable grounds to request the same (including, without
limitation, at any time that the Compliance Certificate indicates that the
Guarantor is at or near the minimum compliance with the financial covenants
in this Guaranty), the Agent may require that such report be accompanied by a
written statement from such accountants to the effect that they have read a
copy of this Guaranty and the Credit Agreement, and that, in making the
examination necessary to said certification, they have obtained no knowledge
of any Default or Event of Default under this Guaranty, or, if such
accountants shall have obtained knowledge of any then existing Default or
Event of Default they shall disclose in such statement any such Default or
Event of Default;
(b) as soon as practicable and in any event within 45 days after
the end of each fiscal quarter of the Guarantor, copies of the unaudited
consolidated balance sheet of the Guarantor as of the end of such quarter,
and the related unaudited consolidated statement of Net Operating
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Income and Operating Cash Flow for the portion of the Guarantor's fiscal year
then elapsed, all in reasonable detail and prepared in accordance with
generally accepted accounting principles, together with a certification by an
Authorized Officer of the Guarantor that the information contained in such
financial statements fairly presents the financial position of the Guarantor
on the date thereof (subject to year end adjustment); such financial
statements shall provide all information necessary for calculation of the
Guarantor's Maximum Amount;
(c) contemporaneously with the delivery of the financial statements
referred to in clause (a) above, a statement of all contingent liabilities of
the Guarantor which are not reflected in such financial statements or referred
to in the notes thereto (including, without limitation, all guarantees,
endorsements and other contingent obligations in respect of indebtedness of
others, and obligations to reimburse the issuer in respect of any letters of
credit), and a statement of projected cash flows of the Guarantor for the
current fiscal year, all in reasonable detail and certified by an Authorized
Officer of the Guarantor;
(d) promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments
thereto of the Guarantor;
(e) not later than 45 days after the end of each fiscal quarter of
the Guarantor (including the fourth fiscal quarter in each year), a statement,
certified as true and correct by an Authorized Officer of the Guarantor, of all
Indebtedness of the Guarantor as of the end of such fiscal quarter, which
statement shall include the original principal amount of such Indebtedness and
the current amount outstanding, the holder thereof, the maturity date and any
extension options, the interest rate, the collateral provided for such
Indebtedness and whether such Indebtedness is recourse or non-recourse;
(f) concurrently with the delivery of the financial statements
described in subsection (b) above, a certificate signed by an Authorized
Officer of the Guarantor to the effect that, having read this Guaranty, and
that based upon an examination which they deem sufficient to enable them to
make an informed statement, there does not exist any Default or Event of
Default, or if such Default or Event of Default has occurred, specifying the
facts with respect thereto;
(g) promptly upon becoming aware thereof, written notice from the
Guarantor of any event or condition which might have a material adverse
effect on the business, operations, assets, condition (financial or
otherwise) or prospects of the Guarantor or the ability of the Guarantor to
perform under this Guaranty (including but not limited to, litigation
commenced or threatened in writing against the Guarantor, judgments rendered
against the Guarantor, liens filed against any property of the Guarantor,
defaults claimed under indebtedness for borrowed money for which the
Guarantor is primarily or secondarily liable, or bankruptcy, insolvency or
trustee or receivership proceedings commenced against the Guarantor), such
notice to specify the nature and the period of existence of such event or
condition, the anticipated effect thereof, and what action the Guarantor is
taking or proposes to take with respect thereto; and
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(h) with reasonable promptness, such other information respecting
the business, operations, assets, liabilities and financial condition of the
Guarantor as Lender may from time to time reasonably request.
Notwithstanding anything herein to the contrary, the Guarantor shall not be
required to deliver any statements or reports described in this Paragraph 10
to the extent the same are included in the Consolidated financial statements
of the Borrower and its Subsidiaries delivered to the Banks by the Borrower
as and when required by the Credit Agreement, or unless the Agent
specifically requests any such statements or reports. The Guarantor will
permit the Banks, through the Agent or any representative designated by the
Agent, at the Guarantor's expense, to visit and inspect any of the properties
of the Guarantor, to examine the records and books of account of the
Guarantor (and to make copies thereof and extracts therefrom) and to discuss
the affairs, finances and accounts of the Guarantor with, and to be advised
as to the same by, its officers, all at such reasonable times and intervals
as the Agent or any Bank may reasonably request.
11. COVENANTS OF GUARANTOR. The Guarantor hereby covenants and agrees
with Lender that until all indebtedness guaranteed hereby has been completely
repaid, Xxxxxx has no further obligation to make advances under the Credit
Agreement and all obligations and undertakings of Borrower under, by reason
of, or pursuant to the Note and the Loan Documents have been completely
performed:
(a) the Guarantor will do or cause to be done all things necessary
to preserve and keep in full force and effect its legal existence, material
rights and franchises, as applicable, to effect and maintain its foreign
qualifications, licensing, domestication or authorization, and to comply in
all material respects with all applicable laws and regulations (including,
without limitation, environmental laws);
(b) the Guarantor will duly pay and discharge, before the same
shall become in arrears, all taxes, assessments and other governmental
charges imposed upon it and its properties, sales or activities, or upon the
income or profits therefrom, as well as claims for labor, material, or
supplies which if unpaid might become a lien or charge on any of its
property; provided that any such tax, assessment, charge or claim need not be
paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Guarantor shall have set aside on
its books adequate reserves with respect thereto; and provided further that
the Guarantor shall pay all such taxes, assessments, charges and claims
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefor;
(c) the Guarantor will maintain and keep the properties used or
deemed by it to be useful in its business in first-class repair, working
order and condition in all material respects, and make or cause to be made
all necessary and proper repairs thereto and replacements thereof;
(d) the Guarantor will maintain with financially sound and
reputable insurers, insurance with respect to its properties and business
against such casualties and contingencies and in
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such types and amounts as shall be in accordance with sound business
practices for companies in similar business similarly situated;
(e) the Guarantor will keep complete, proper and accurate records
and books of account in which full, true and correct entries will be made in
accordance with generally accepted accounting principles consistent with the
preparation of the financial statements heretofore delivered to Lender and
will maintain adequate accounts and reserves for all taxes (including income
taxes), all depreciation, depletion, and amortization of its properties, all
other contingencies, and all other proper reserves;
(f) the Guarantor will not create, incur, assume, guarantee or be
or remain liable, contingently or otherwise, with respect to any Indebtedness
other than:
(i) Indebtedness to Lender arising under any of the Note, the
Loan Documents and this Guaranty;
(ii) current liabilities of the Guarantor incurred in
the ordinary course of business but not incurred through the borrowing
of money or the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection
with normal purchases of goods and services;
(iii) Indebtedness in respect of taxes, assessments and
governmental charges to the extent that payment therefor shall not at
the time be required to be made in accordance with the provisions of
subparagraph (b) of this paragraph;
(iv) Indebtedness in respect of judgments or awards
that have been in force for less than the applicable period for taking
an appeal so long as execution is not levied thereunder or in respect
of which the Guarantor shall at the time in good faith be prosecuting
an appeal or proceedings for review and in respect of which a stay of
execution shall have been obtained pending such appeal or review; and
(v) endorsements for collection, deposit or
negotiation and warranties of products or services, in each case
incurred in the ordinary course of business.
(g) the Guarantor will not create or incur or suffer to be created
or incurred or to exist any lien, encumbrance, mortgage, pledge, negative
pledge, charge, restriction or other security interest of any kind upon any
of its property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; or transfer any of such
property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any
other obligation in priority of payment of its general creditors; or acquire,
or agree to have an option to acquire, any property or assets upon
conditional sale or other title retention or purchase money security
agreement, devise or arrangement; or suffer to exist for a period of more
than 30 days after the same shall have been incurred any Indebtedness or claim
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or demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or sell, assign, pledge, encumber or otherwise transfer any
accounts, contract rights, general intangibles, chattel paper or instruments,
with or without recourse, or incur or maintain any obligation to any holder
of Indebtedness of the Guarantor which prohibits the creation or maintenance
of any lien securing the Obligations; provided that the Guarantor may create
or incur or suffer to be created or incurred or to exist:
(i) liens on properties to secure taxes, assessments and
other governmental charges or claims for labor, material or supplies in
respect of obligations not overdue;
(ii) liens with respect of judgments, awards or
indebtedness, the Indebtedness with respect to which is permitted by
subparagraph (f)(iv) of this paragraph;
(iii) liens in favor of Xxxxxx; and
(iv) encumbrances on properties consisting of leases
entered into in the ordinary conduct of business of the Guarantor,
easements, rights of way, zoning restrictions, restrictions on the use
of real property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the Guarantor is a
party, and other minor non-monetary liens or encumbrances none of which
interferes materially with the use of the property effected in the
ordinary conduct of the business of the Guarantor, which defects do not
individually or in the aggregate have a materially adverse effect on
the business of the Guarantor;
(h) the Guarantor will not become a party to any merger,
consolidation or other business combination, or agree to effect any asset
acquisition, stock acquisition or other acquisition, except as otherwise
permitted in the Credit Agreement;
(i) the Guarantor will not become a party to or agree to or affect
any disposition of assets, except as otherwise permitted in the Credit
Agreement; and
(j) the Guarantor will cooperate with Xxxxxx and execute such
further instruments and documents as Xxxxxx shall reasonably request to carry
out to their satisfaction the transactions contemplated by this Guaranty and
the other Loan Documents.
12. CHANGES IN WRITING; NO REVOCATION. This Guaranty may not be
changed orally, and no obligation of the Guarantor can be released or waived
by Xxxxxx except by a writing signed by a duly authorized officer of Lender.
This Guaranty shall be irrevocable by the Guarantor until all indebtedness
guaranteed hereby has been completely repaid and all obligations and
undertakings of Borrower under, by reason of, or pursuant to the Note and the
Loan Documents have been completely performed.
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13. NOTICES. All notices, demands or requests provided for or
permitted to be given pursuant to this Guaranty (hereinafter in this
paragraph referred to as "Notice") must be in writing and shall be deemed to
have been properly given or served by personal delivery or by sending same by
overnight courier or by depositing the same in the United States mail,
postpaid and registered or certified, return receipt requested, at the
addresses set forth below. Each Notice shall be effective upon being
delivered personally or upon being sent by overnight courier or upon being
deposited in the United States Mail as aforesaid. The time period in which a
response to any such Notice must be given or any action taken with respect
thereto, however, shall commence to run from the date of receipt if
personally delivered or sent by overnight courier or, if so deposited in the
United States Mail, the earlier of three (3) Business Days following such
deposit and the date of receipt as disclosed on the return receipt.
Rejection or other refusal to accept or the inability to deliver because of
changed address of which no Notice was given shall be deemed to be receipt of
the Notice sent. By giving at least fifteen (15) days prior Notice thereof,
the Guarantor or Lender shall have the right from time to time and at any
time during the term of this Guaranty to change their respective addresses
and each shall have the right to specify as its address any other address
within the United States of America. For the purposes of this Guaranty:
The address of Lender is:
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
with a copy to:
The First National Bank of Boston
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X.
Suite 500
Atlanta, Georgia 30346
Attn: Xxx Xxxxxxx
(000) 000-0000
(000) 000-0000 (Fax)
and a copy to each other Lender which may now be or hereafter become a party
to the Credit Agreement at such address as may be designated by such Lender
in the Credit Agreement.
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The address of Guarantor is:
MIT Unsecured L.P.
c/o Meridian Industrial Trust, Inc.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, President and Chief Financial Officer
415/281-3900
415/000-0000 (FAX)
14. GOVERNING LAW. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT THIS
GUARANTY AND THE OBLIGATIONS OF THE GUARANTOR HEREUNDER SHALL BE GOVERNED BY
AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW).
15. CONSENT TO JURISDICTION; WAIVERS. THE GUARANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY (A) SUBMITS TO PERSONAL JURISDICTION IN THE COMMONWEALTH
OF MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY, AND (B) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER
THE LAWS OF ANY STATE (I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO
OBJECT TO JURISDICTION WITHIN THE COMMONWEALTH OF MASSACHUSETTS OR VENUE IN
ANY PARTICULAR FORUM WITHIN THE COMMONWEALTH OF MASSACHUSETTS, AND (III) TO
THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN ACTUAL DAMAGES. THE
GUARANTOR AGREES THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS
PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE ADDRESS SET FORTH IN
PARAGRAPH 13 ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER
THE SAME SHALL BE SO MAILED. NOTHING CONTAINED HEREIN, HOWEVER, SHALL
PREVENT XXXXXX FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY
RIGHTS AGAINST ANY SECURITY AND AGAINST THE GUARANTOR PERSONALLY, AND AGAINST
ANY PROPERTY OF THE GUARANTOR, WITHIN ANY OTHER STATE. INITIATING SUCH SUIT,
ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT
CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF THE
GUARANTOR AND LENDER HEREUNDER OR OF THE SUBMISSION HEREIN MADE BY THE
GUARANTOR TO PERSONAL JURISDICTION WITHIN THE COMMONWEALTH OF MASSACHUSETTS.
THE
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GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT. THE GUARANTOR CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY XXXXXX HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THEIR FOREGOING
WAIVERS AND ACKNOWLEDGES THAT XXXXXX HAS BEEN INDUCED TO ENTER INTO THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS PARAGRAPH 15.
THE GUARANTOR ACKNOWLEDGES THAT IT HAS HAD AN OPPORTUNITY TO REVIEW THIS
PARAGRAPH 15 WITH ITS LEGAL COUNSEL AND THAT THE GUARANTOR AGREES TO THE
FOREGOING AS ITS FREE, KNOWING AND VOLUNTARY ACT.
16. SUCCESSORS AND ASSIGNS. The provisions of this Guaranty shall be
binding upon the Guarantor and its heirs, successors, successors in title,
legal representatives, and assigns, and shall inure to the benefit of Xxxxxx,
its successors, successors in title, legal representatives and assigns.
17. ASSIGNMENT BY LENDER. This Guaranty is assignable by Lender in
whole or in part in conjunction with any assignment of the Note or portions
thereof, and any assignment hereof or any transfer or assignment of the Note
or portions thereof by Lender shall operate to vest in any such assignee the
rights and powers, in whole or in part, as appropriate, herein conferred upon
and granted to Lender.
18. SEVERABILITY. If any term or provision of this Guaranty shall be
determined to be illegal or unenforceable, all other terms and provisions
hereof shall nevertheless remain effective and shall be enforced to the
fullest extent permitted by law. Furthermore, if the Maximum Amount or any
other sums the Guarantor is required to pay under this Guaranty shall exceed
the maximum limits imposed by applicable law, such Maximum Amount or other
sums shall be reduced by the amount of such excess.
19. DISCLOSURE. The Guarantor agrees that in addition to disclosures
made in accordance with standard banking practices, any Lender may disclose
information obtained by such Lender pursuant to this Guaranty to assignees or
participants and potential assignees or participants hereunder.
20. NO UNWRITTEN AGREEMENTS. THIS GUARANTY REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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21. TIME OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement and obligation of the Guarantor under this
Guaranty.
22. RATIFICATION. The Guarantor does hereby restate, reaffirm and
ratify each and every warranty and representation regarding the Guarantor set
forth in the Credit Agreement as if the same were more fully set forth
herein. The Guarantor further warrants that due to the operation of its
properties together with the properties of the Borrower as one consolidated
enterprise, the extension of credit and provision of financial accommodations
by Lender to Borrower will be to the direct and indirect interest, advantage
and benefit of the Guarantor.
23. LIMITATION ON LIABILITY. NO OBLIGATION OR LIABILITY WHATSOEVER OF
THE GUARANTOR (WHETHER AS GUARANTOR OR AS SUBSIDIARY OF THE BORROWER) WHICH
MAY ARISE AT ANY TIME UNDER THIS GUARANTY OR ANY OBLIGATION OR LIABILITY
WHICH MAY BE INCURRED BY IT PURSUANT TO ANY OTHER LOAN DOCUMENT SHALL BE
PERSONALLY BINDING UPON, NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF BE HAD
TO, THE PRIVATE PROPERTY OF ANY OF THE GUARANTOR'S SHAREHOLDERS, TRUSTEES,
OFFICERS OR EMPLOYEES, REGARDLESS OF WHETHER SUCH OBLIGATION OR LIABILITY IS
IN THE NATURE OF CONTRACT, TORT OR OTHERWISE. NOTHING HEREIN SHALL DIMINISH
OR IMPAIR THE RIGHTS OF AGENT AND THE BANKS TO PURSUE ANY REMEDY AGAINST ANY
ASSETS OF THE GUARANTOR.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty under seal
on this 21st day of April, 1997.
MIT UNSECURED L.P., a California limited
partnership
By: MIT Unsecured, Inc., a California
corporation, its sole general partner
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
Attest: /s/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Secretary
[CORPORATE SEAL]
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