SECOND 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 BANKBOSTON, N.A., a
national banking association, formerly known as The First National Bank of
Boston (hereinafter referred to as "BankBoston"), 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
BankBoston in the principal face amount of Sixty Million and No/100 Dollars
($60,000,000.00) (hereinafter referred to as the "BankBoston 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 Ninety Million and No/100 Dollars ($190,000,000.00) (hereinafter
referred to as the "Additional Notes"), together with interest as provided in
the BankBoston 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 Third 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, BankBoston, 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 BankBoston 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 Second Amended and Restated Guaranty of Payment and Performance amends
and restates in its entirety that certain First Amended and Restated Guaranty of
Payment and Performance dated April 21, 1997, made by Guarantor to Lender.
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
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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.
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
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whatsoever to proceed against Xxxxxxxx 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 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
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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;
(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
5
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 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 Lender,
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
6
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 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
7
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 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
8
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
(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);
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(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 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;
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(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 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;
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(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.
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:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
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with a copy to:
BankBoston, N.A.
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.
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
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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
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
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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.
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 23rd day of September, 1997.
MIT UNSECURED L.P., a California limited
partnership
By: MIT Unsecured, Inc., a California
corporation, its sole general
partner
By:
-----------------------------
Name:
Title:
Attest:
-------------------------
Name:
Title:
[CORPORATE SEAL]
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