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EXHIBIT 10.1
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199 RIVERNECK, LLC
$6,850,000 7.30% Senior Secured Notes due November 2, 2014
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NOTE PURCHASE AGREEMENT
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Dated as of October 26, 1999
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199 Riverneck, LLC
199 Riverneck Road
Chelmsford, MA 01824
October 26, 1999
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
1295 State Street
Springfield, Massachusetts 01111
Ladies and Gentlemen:
199 Riverneck, LLC, a Delaware limited liability company (the
"Company"), hereby agrees with you as follows. Certain capitalized terms used
herein are defined in Section 10.
1. AUTHORIZATION OF NOTES; SECURITY FOR THE NOTES.
(a) The Company has authorized the issue and sale of its 7.30% Senior
Secured Notes due November 2, 2014 (herein, together with any notes issued in
exchange therefor or replacement thereof, called the "Notes") in an aggregate
principal amount of $6,850,000. The Notes are to be substantially in the form of
EXHIBIT 1 (a) attached hereto.
(b) The Notes are to bear interest at a per annum rate of interest of
7.30% and are to be payable in 180 consecutive monthly installments of combined
principal and interest. Each of the first 179 installments shall be of equal
amount and all such installments together shall be sufficient to retire all
principal of and accrued interest on the Notes. The final installment shall be
an amount sufficient to retire the then outstanding principal amount of the
Notes and all accrued and unpaid interest thereon. The first installment is to
be paid on the 30th day following the Closing and the remaining installments
shall be paid on the same day of each month thereafter to and including the
180th month following the Closing, on which date the entire unpaid balance of
the principal amount of the Notes, together with accrued interest thereon, will
be due and payable. Each installment of combined principal and interest shall be
applied first to the payment of accrued interest and then to the payment of
principal.
(c) The Notes are to be secured by and entitled to the benefits of
first priority perfected liens on all presently-owned and after acquired
properties and assets (whether tangible or intangible, whether real, personal or
fixtures) of the Company pursuant to (i) a First Mortgage and Security Agreement
substantially in the form of EXHIBIT 1 (c) (i) attached hereto (the "Mortgage")
from the Company to you covering certain real and personal property and fixtures
described therein (collectively, the "Mortgaged Property") and (ii) a Lease
Assignment and Agreement substantially in the form of EXHIBIT 1 (c) (ii)
attached hereto (the "Assignment") by the Company and Mercury Computer Systems,
Inc. ("Mercury") a Massachusetts corporation to you, assigning to you all of the
right, title and interest of the Company, as lessor, in, to and under a
commercial lease of the Premises (the "Lease") between the Company, as lessor,
and Mercury, as lessee, including the rents and other sums payable to the
Company thereunder. The holders of the Notes are entitled to the benefits of (1)
a Tenant Agreement (subordination, non-disturbance and attornment agreement)
executed by the Company, Mercury and you substantially in the form of EXHIBIT 1
(c) (iii) attached hereto (the "Tenant Agreement"), (2) an Environmental Risk
Agreement executed by the Company, Mercury and you substantially in the form of
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EXHIBIT 1 (c) (iv) (the "Environmental Risk Agreement"), and (3) a
Representation and Covenant Letter executed by Mercury substantially in the form
of EXHIBIT 1 (c) (v) attached hereto (the "Representation Letter").
(d) The Notes are to be issued under this Agreement.
2. PURCHASE OF NOTES. The Company will issue and sell to you and, subject to the
terms and conditions hereof and in reliance upon the representations and
warranties of the Company, contained and referred to herein and otherwise made
by or on behalf of the Company and upon the representations and warranties of
Mercury contained in the Representation Letter and otherwise made by or on
behalf of Mercury, in connection with the transactions contemplated hereby, you
will purchase from the Company, at the Closing specified in Section 3, the
principal amount of the Notes specified for purchase by you as set forth in
SCHEDULE I attached hereto, at the purchase price of 100% of the principal
amount thereof.
3. CLOSING. The closing of the sale and purchase of the Notes hereunder (the
"Closing") shall take place at the offices of Messrs. Choate, Hall & Stewart,
Exchange Place, 53 State Street, Boston, Massachusetts at 11:00 A.M., Boston
time, on or before November 4, 1999, or on such extended date (not later than
November 10, 1999) as you may agree to. At the Closing the Company will deliver
to you the Notes to be purchased by you, against payment of the purchase price
thereof in immediately available funds in accordance with the wire instructions
set forth in EXHIBIT 3 attached hereto. Delivery of the Notes to be purchased by
you shall be made in the form of one or more Notes, each dated (and bearing
interest from) the date of the Closing and registered in your name or the name
or names of any nominee or nominees designated by you. If at the Closing the
Company shall fail to tender the Notes to be delivered to you thereat as
provided herein, or if at the Closing any of the conditions specified in Section
4 shall not have been fulfilled to your satisfaction, you shall, at your
election, be relieved of all further obligations under this Agreement, without
thereby waiving any other rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING. Your obligation to purchase and pay for the Notes is
subject to the fulfillment to your satisfaction, prior to or at the Closing, of
the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company herein and by Mercury in the Representation
Letter and otherwise made by or on behalf of the Company or made by or on behalf
of Mercury in any of the other Operative Documents or in connection with the
transactions contemplated hereby shall have been correct when made and shall be
correct in all material respects at and as of the time of the Closing (after
giving effect to the transactions consummated at the Closing).
4.2 PERFORMANCE; NO DEFAULT.
(a) The Company and Mercury shall have (i) performed all
agreements and complied with all conditions contained herein and in the
other Operative Documents required to be performed or complied with by
them, respectively, prior to or at the Closing and (ii) obtained any
and all consents and waivers necessary to permit the consummation of
the transactions contemplated hereby.
(b) At the time of the Closing no condition or event shall
exist or have occurred which constitutes, or after notice or lapse of
time or both, would constitute an Event of Default and no condition
shall exist which has resulted in, or could reasonably be expected to
result in a Material Adverse Change.
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4.3 TITLE TO PROPERTY. The Company shall have good and marketable title
to the Mortgaged Property, including good and marketable title (A) in fee simple
to all parcels of land (the "Parcels") described in SCHEDULE A to the Mortgage,
(B) to all buildings, structures and improvements then located on the Parcels
(the "Improvements"), and (C) to all equipment described in clause (c) of the
granting clauses of the Mortgage (in fee simple to the extent that the foregoing
constitute real property) and to all other personal property purported to be
mortgaged or pledged by the Mortgage (all of the property described in the
foregoing clauses (a) to (c), inclusive, constituting Mortgaged Property),
subject to no Lien, except the Mortgage and the Permitted Encumbrances.
4.4 APPRAISALS. You shall have received an appraisal, dated not more
than 30 days prior to the Closing, satisfactory in substance and form to you, of
an independent real estate appraiser who is a member of the American Institute
of Real Estate Appraisers and satisfactory to you, setting forth, in reasonable
detail, a determination of the current fair market value (the "Appraised Value")
of the Mortgaged Property.
4.5 COMPLIANCE WITH LOCAL REQUIREMENTS. All certificates, permits and
licenses which are necessary to permit the use of the Improvements as they are
currently being used and as they are to be used, including, without limitation,
a Certificate of Occupancy issued by the Town of Chelmsford, shall have been
duly obtained and shall be in full force and effect. The use of the Parcels and
the Improvements and the location of the Improvements shall not be (a) except as
set forth in Exhibit 4.5, in violation of any applicable zoning or similar
statute, ordinance or restriction and any environmental, land use or similar
statute, ordinance or restriction and (b) the Improvements shall not have
suffered any unrestored damage or destruction.
4.6 SURVEYS; ENVIRONMENTAL SITE ASSESSMENTS AND REPORTS;
(a) You shall have received an ALTA/ALSM survey with respect
to each Parcel, satisfactory in substance to you, prepared and
certified as of a date within 30 days of the date of the Closing by a
surveyor who is licensed as such in The Commonwealth of Massachusetts,
showing (i) the exact location and (by metes and bounds) the exact
dimensions of such Parcel, (ii) the exact location of the Improvements
thereon, (iii) the exact location of all lot and street lines, all
means of access to such Parcel, and all utility wires, pipes and other
conduits or easements which are appurtenant to or a burden on such
Parcel, (iv) the names of all public avenues, streets or alleys
abutting such Parcel, (v) no encroachment, right of way or easement
relating to such Parcel or any encroachment by any of the Improvements
on any adjoining property, or any other defect, except Permitted
Encumbrances, and (vi) no other state of facts which would render title
to such Parcel unmarketable; (vii) and such other matters such that the
survey is sufficient to delete the so-called survey exception from the
mortgagees' title insurance to be delivered in accordance with section
4.11.
(b) You shall have received an environmental site assessment
report dated as of December 22, 1998 and recertified June 22, 1999 and
prepared by Aaron & Wright with respect to the Mortgaged Property.
4.7 MORTGAGE, ETC.
(a) The Mortgage and all necessary financing statements shall
have been duly authorized, executed and delivered by the Company, and
at the time of the Closing the Mortgage shall be in full force and
effect. The Mortgage and financing statements, upon appropriate
recording, shall create a valid first Lien of record and perfected
security interest on and in the
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Mortgaged Property, subject only to Permitted Encumbrances, and no
event shall have occurred and no condition shall exist which
constitutes or which would, after notice or lapse of time or both,
constitute an Event of Default thereunder or hereunder.
(b) At the Closing, the Company shall contemporaneously
terminate all pre-existing financing agreements relating to the
Mortgaged Property and repay all outstanding Indebtedness for borrowed
money thereunder, and all Liens held as security for such pre-existing
Indebtedness, other than Permitted Encumbrances, shall be
contemporaneously released, terminated and discharged.
4.8 LEASE. The Lease shall have been duly authorized, executed and
delivered by the Company and Mercury, and the Lease shall provide for the
unconditional net payment by Mercury of rent and such other amounts due
thereunder during the term thereof, such payments to be made (in accordance with
Section 7 of the Tenant Agreement) directly by Mercury to you and shall be
satisfactory in substance and form to you. At the time of the Closing, (a) the
Lease shall be in full force and effect and binding on the parties thereto; (b)
Mercury shall be unconditionally obligated to pay the rent and all other amounts
payable thereunder in accordance with the terms thereof; (c) neither the Company
nor Mercury shall have waived, amended or modified any term thereof or consented
to any such waiver, amendment or modification thereof; (d) no prepayment or
discount of rent or payment of any advance rent shall have been made thereunder;
(e) there shall exist no offset or defense against the payment of any rent
thereunder; and (f) no event shall have occurred and no condition shall exist
which constitutes or which would, after notice or lapse of time or both,
constitute a default by Mercury under the Lease or of the Company under the
Lease.
4.9 ASSIGNMENT. The Assignment shall have been duly authorized,
executed and delivered by the Company, Mercury and you and shall constitute a
valid present assignment to you, as security for the Secured Obligations, of the
Company's right, title and interest in, to and under the Lease, including the
rents and other sums payable to the Company thereunder, and at the time of the
Closing the Assignment shall be in full force and effect and no default shall
exist thereunder.
4.10 RECORDATION, TAXES, ETC. The Mortgage shall have been duly
recorded or filed for recordation, and financing statements with respect thereto
shall have been duly filed, in such manner and in such places as are required to
establish, preserve and protect the lien of the Mortgage as a valid direct first
lien of record and perfected security interest on the Mortgaged Property,
subject only to Permitted Encumbrances. A Notice of Lease shall have been duly
recorded or filed for recordation and, where appropriate, financing statements
with respect thereto shall have been duly filed, in such manner and in such
places as are required to establish, preserve and protect the rights of the
parties thereto and their respective successors and assigns. The Assignment
shall have been duly recorded or filed for recordation and, where appropriate,
financing statements with respect thereto shall have been duly filed, in such
manner and in such places as are required to establish, preserve and protect the
lien of the Assignment as a valid present assignment of the Company's right,
title and interest in, to and under the Lease, including the rents and other
sums payable to the Company thereunder. All taxes, fees and other charges in
connection with the execution, delivery and recording or filing for recordation
of the Mortgage, the Lease (or appropriate instruments with respect thereto) the
Assignment and the Tenant Agreement and financing statements with respect
thereto and the issuance and sale of the Notes shall have been duly paid in
full.
4.11 TITLE INSURANCE. You shall have received a title insurance policy
or policies in the current form of the American Land Title Association Loan
Policy, with all standard exceptions deleted, with respect to all Parcels
included in the Mortgaged Property, issued by a title insurance company
satisfactory to you, dated the date of the Closing and satisfactory in substance
and form to you, insuring
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your interest under the Mortgage as a valid and enforceable first Lien of record
on such Parcels, subject only to Permitted Encumbrances, in an aggregate
principal amount not less than the aggregate principal amount of the Notes
issued and sold at the Closing hereunder.
4.12 CASUALTY AND LIABILITY INSURANCE. You shall have received a
Compliance Certificate from the Company, and an Officers' Certificate from
Mercury, each dated the date of the Closing and reasonably satisfactory in
substance and form to you, certifying to the existence of the insurance, with
insurance companies satisfactory to you, required by Section 1.12 of the
Mortgage and Section 3.2.4.1 through and including 3.2.4.6 of the Lease and the
payment of all premiums due thereon. The originals of the policies evidencing
such insurance (or certificates therefor issued by the insurers) shall have been
delivered to you.
4.13 TENANT AGREEMENT. The Tenant Agreement shall have been duly
authorized, executed and delivered by the Company and Mercury and, at the time
of the Closing, the Tenant Agreement shall be in full force and effect and
binding upon the Company and Mercury.
4.14 ENVIRONMENTAL RISK AGREEMENT. The Environmental Risk Agreement
shall have been duly authorized, executed and delivered by the Company and
Mercury and, at the time of the Closing, the Environmental Risk Agreement shall
be in full force and effect and binding upon the Company and Mercury.
4.15 REPRESENTATION LETTER. The Representation Letter shall have been
duly authorized, executed and delivered by Mercury and, at the time of Closing,
the Representation Letter shall be in full force and effect and binding upon
Mercury.
4.16 TANGIBLE NET WORTH OF MERCURY. Mercury shall have a minimum
Tangible Net Worth, as of the date of the Closing (after giving effect to the
transaction contemplated hereby), of $54,450,000.
4.17 COMPLIANCE CERTIFICATES.
(a) You shall have received a Compliance Certificate from the
Company, dated the date of the Closing, (i) certifying that all of the
conditions specified in Sections 4.1, 4.2, 4.3, 4.5, 4.8, 4.9, 4.10,
4.11 (regarding delivery of a title insurance commitment), 4.12, 4.13,
4.14 and 4.15 have been fulfilled.
(b) You shall have received an Officer's Certificate from
Mercury, dated the date of the Closing, certifying that the conditions
specified in Sections 4.1, 4.2, 4.8, 4.9, 4.10, 4.12, 4.13, 4.14, 4.15
(in each case with respect to Mercury) and 4.16 have been fulfilled and
providing the calculation of Mercury's Tangible Net Worth as of the
date of the Closing together with all supporting information reasonably
requested by you in order to confirm such calculation.
4.18 OPINIONS OF COUNSEL. At the Closing, you shall have received a
favorable opinion addressed to you dated the date of the Closing, in substance
and form satisfactory to you and your special counsel from Messrs. Hutchins,
Wheeler & Dittmar, a professional corporation, (a) as counsel to the Company
addressing due execution, authorization, delivery and enforceability of the
Operative Documents executed by the Company and zoning, environmental and land
use laws, rules and regulations regarding the use and operation of the Mortgaged
Property and (b) as counsel to Mercury addressing due execution, authorization,
delivery and enforceability of the Operative Documents executed by Mercury.
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4.19 OPINIONS OF YOUR SPECIAL COUNSEL. At the Closing, you shall have
received a favorable opinion, addressed to you dated the date of the Closing,
from your special counsel, Messrs. Choate, Hall & Stewart, substantially in the
form of EXHIBIT 4.18 attached hereto.
4.20 REQUIRED CONSENTS AND APPROVALS. The Company and Mercury shall
have obtained all necessary consents, approvals and authorizations of any
governmental, administrative agency, or other Person to any of the transactions
contemplated hereby and each of the same shall be in full force and effect.
4.21 LEGAL INVESTMENT; CERTIFICATE. Your purchase of the Notes
hereunder shall be permitted under the laws and regulations of any jurisdiction
to which you are subject and, if requested by you, you shall have received a
Compliance Certificate, dated the date of Closing, and/or an Officer's
Certificate, certifying as to such matters of fact as you may request to enable
you to determine whether your purchase is so permitted.
4.22 SALE AND PURCHASE NOT FORBIDDEN BY LAW. The offer, issue, sale and
delivery of the Notes by the Company and the purchase thereof by you at the
Closing shall not be prohibited by and shall not subject you to any tax,
penalty, liability or other onerous condition under or pursuant to any law,
statute, rule or regulation.
4.23 PAYMENT OF TRANSACTION COSTS. The Company shall have paid by wire
transfer in accordance with the wire instructions attached hereto all fees,
expenses and disbursements incurred by you at or prior to the time of the
Closing in connection with the transactions contemplated hereby, including,
without limitation, the reasonable fees, expenses and disbursements of your
special counsel.
4.24 PROCEEDINGS AND DOCUMENTS. All limited liability company and other
proceedings by the Company and all corporate and other proceedings by Mercury in
connection with the transactions contemplated hereby and all documents,
certificates, opinions and instruments incident to such transactions shall be
satisfactory in form and substance to you and your special counsel, and you and
your special counsel shall have received all such executed counterparts or
conformed copies thereof as you or they may reasonably request.
4.25 SIMULTANEOUS CLOSING. The satisfaction of each of the conditions
precedent and the purchase and sale of the notes under that certain note
purchase agreement between Riverneck Road, LLC and you dated the date hereof
must occur simultaneously with the purchase and sale of the Notes hereunder.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants that:
5.1 ORGANIZATION, STANDING, ETC. OF THE COMPANY; BUSINESS; MEMBERSHIP
UNITS.
(a) The Company is a limited liability company duly organized
and validly existing under the laws of the State of Delaware and
qualified to do business in The Commonwealth of Massachusetts, with
powers adequate for the making and performing of each of the Operative
Documents and for the consummation of the transactions contemplated
thereby, for issuing and securing the Secured Obligations, for owning
its properties and for the carrying on of the business now conducted
and presently proposed to be conducted by it. The Company's only member
is Mercury. The Company's managing member is Mercury. The Company has
engaged in no business activities other than those incidental to its
organization and to the ownership, use and operation of the Mortgaged
Property. A complete and correct copy of the Company's Operating
Agreement (the "Operating Agreement") is annexed hereto as EXHIBIT
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5.1(a) The Certificate of Formation of the Company has been filed or
recorded in the office of the Secretary of State of Delaware, this
being the only place where the Certificate of Formation is required by
law to be filed or recorded for the organization of the Company. The
Company has made all necessary filings under all fictitious name
statutes.
(b) There are no outstanding rights, options, warrants or
agreements for the purchase from, or the sale or issuance by, the
Company of any membership interests or securities convertible into or
exchangeable for any such membership interests. All of the outstanding
membership interests in the Company are validly issued and outstanding,
fully paid and non-assessable, and not subject to any pre-emptive
rights.
(c) The Company has no Subsidiaries and the Company is not a
partner or joint venturer in any partnership or joint venture.
(d) The execution, delivery and performance of each of the
Operative Documents to be executed and delivered by the Company in
connection with the transactions contemplated hereby have been duly
authorized by all necessary action on the part of the Company and each
constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms.
5.2 QUALIFICATION. The Company is not, as a result of the properties it
owns or leases or the business it conducts, required to qualify as a
foreign limited liability company in any jurisdiction other than The
Commonwealth of Massachusetts.
5.3 FINANCIAL STATEMENTS OF THE COMPANY; SOLVENCY.
(a) The Company is and, after giving effect to the
transactions contemplated hereby, shall be Solvent.
5.4 CHANGES IN FINANCIAL CONDITION OF COMPANY , ETC. Since December 31,
1998: (a) there has been no change in the assets, liabilities or financial
condition of the Company, other than changes in the ordinary course of business
which changes in the ordinary course have not been, in any single case or in the
aggregate, materially adverse; (b) there has been no Material Adverse Change;
and (C) the Company has not entered into any material transaction outside of the
ordinary course of business, except as contemplated by this Agreement.
5.5 TAX RETURNS AND PAYMENTS. The Company has filed all tax returns
required by law to be filed and has paid all taxes, assessments and other
governmental charges levied upon its properties, assets, income or franchises,
other than those not yet delinquent. The Federal income tax liability on account
of the income of the Company has been finally determined by all applicable
governmental authorities through the fiscal year ended December 31, 1998. The
Company has not executed any waiver or waivers that would have the effect of
extending the applicable statute of limitations in respect of income tax
liabilities. The charges, accruals and reserves in the financial statements of
the Company in respect of any taxes for all fiscal periods are adequate, and the
Company does not know of any unpaid assessments for additional taxes for any
fiscal period or of any basis therefor. The Company has furnished each of its
members with all applicable notices relating to taxes, including Forms K-1 for
all tax years including, without limitation, for the tax year ending December
31, 1998.
5.6 INDEBTEDNESS, LIENS AND INVESTMENTS. EXHIBIT 5.6 attached hereto
correctly describes as of the date hereof (a) all Indebtedness of the Company
including, without limitation, all Capital Leases outstanding, (b) all
mortgages, pledges, liens, security interests, leases, charges and encumbrances
to
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which any of the properties and assets of the Company are subject, and (C) all
Investments of the Company.
5.7 TITLE TO PROPERTIES; LIENS. The Company has good and marketable
title to all of its respective properties and assets, including, without
limitation, the Mortgaged Property, except properties and assets disposed of in
the ordinary course of business, and none of such properties or assets is
subject to any material mortgage, pledge, lien, security interest, lease, charge
or encumbrance except as described in EXHIBIT 5.7. None of the properties or
assets the value of which is reflected in such balance sheet is held under or
subject to any lease (except for leasehold improvements, which have been or are
being amortized over a period not exceeding the term of the lease in question)
or as conditional vendee under any conditional sale or other title retention
agreement other than the Lease. The Company is not a lessee under any lease. The
only lease under which the Company is a lessor is the Lease and the only lessee
of any properties owned by the Company is Mercury. The only sublease Mercury has
entered into is the Cresent Sublease.
5.8 LITIGATION, ETC.
(a) There are no actions, suits or proceedings pending, or to
the knowledge of the Company, threatened against or affecting the
Company or any property of the Company in any court or before any
arbiter of any kind or before or by any Governmental Authority that,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Change.
(b) The Company is not in default under any term of any
agreement or instrument to which it is a party or by which it is bound,
or any order, judgment, decree or ruling of any court, arbiter or
Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation
Environmental Laws) of any Governmental Authority, which default or
violation, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Change.
5.9 VALID AND BINDING; COMPLIANCE WITH OTHER INSTRUMENTS, ETC.
(a) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and legal binding obligation of the
Company enforceable against the Company in accordance with its terms. Each of
the other Operative Documents including, without limitation, the Notes, to which
the Company is a party has been duly authorized by the Company, and, when
executed and delivered, will constitute the valid and legally binding obligation
of the Company, enforceable against it in accordance with its terms. The
provisions of the Operative Documents are effective to create in favor of and
for the benefit of the holders of the Notes, legal, valid and enforceable Liens
in and on all of the right, title and interest of the Company in the Mortgaged
Property. At the Closing, by virtue of the recording and filing of the Mortgage,
Assignment, and financing statements in the applicable offices, all of which
recordings and filings have been made and are in full force and effect, there
have created in favor of such holders fully perfected first and prior Liens in
and on all right, title and interest of the Company in the Mortgaged Property,
subject to no other Liens or claims of any other Person other than the Permitted
Encumbrances. No other filing or action is required in order to perfect your
Lien in the Mortgaged Property.
(b) The Company is not in violation of its Charter Documents. The
Company is not in violation of any agreement, instrument, judgment, decree,
order, statute, or governmental rule or regulation applicable to the Company
(including, without limitation, applicable statutes or governmental rules,
regulations and orders relating to hazardous wastes or materials, environmental,
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safety and other similar standards or controls), in any way which materially
adversely affects or in the future may (so far as the Company can now foresee)
materially adversely affect the business, operations, affairs or condition of
the Company; and the execution, delivery and performance of each of the
Operative Documents will not result in any such violation or be in conflict with
or constitute a default under any such term, or result in the creation of any
Lien (other than those created by the Mortgage, the Lease and the Assignment)
upon any of the properties or assets of the Company pursuant to any such term.
There is no such term which materially adversely affects or in the future may
(so far as the Company can now foresee) materially adversely affect the
business, operations, affairs or condition of the Company. The Company is not a
party to or bound by any ordinance or agreement, deed, lease or other
instrument, or subject to any agreement or certificate, charter, by-law or other
similar restriction which is so unusual or burdensome as to materially and
adversely affect or impair the business, assets or financial condition of the
Company.
5.10 ERISA. The Company has not sponsored, established or been
obligated to contribute to any pension or profit-sharing plan or other plan or
arrangement subject to ERISA.
5.11 GOVERNMENTAL CONSENT, ETC. No consent, approval or authorization
of, or declaration or filing with, any Person, including, without limitation any
Governmental Authority, is required as a condition precedent to the valid
execution, delivery and performance of each of the Operative Documents or the
valid offer, issue, sale and delivery of the Notes as contemplated hereby and
thereby. No such consent, approval, authorization, declaration or filing was or
is required in connection with the consummation of any of the transactions
contemplated by the Operative Documents other than the filing of financing
statements relating to the security interests granted by the Mortgage and the
recording of the Mortgage, a Notice of Lease, the Assignment, the Tenant
Agreement and the filing of such financing statements.
5.12 PATENTS, TRADEMARKS, ETC. The Company has all patents, trademarks,
service marks, trade names, copyrights and licenses, or rights with respect to
the foregoing, as are adequate in the opinion of the Company for the conduct of
its business as now conducted, without any known conflict with the rights of
others.
5.13 FRANCHISES, LICENSES, ETC. The Company validly holds all
certificates, franchises, licenses, permits and authorizations from governmental
political subdivisions or regulatory authorities, free from unduly burdensome
restrictions or conditions of an unusual character, that are necessary in any
material respect for the ownership, maintenance and operation of its properties
and assets or for the conduct of its business, and the Company is not in
violation of any thereof in any respect which may (so far as the Company can now
foresee) materially adversely affect the business, operations, affairs or
condition of the Company and its assets.
5.14 OFFER OF NOTES. Neither the Company nor anyone acting on its
behalf has directly or indirectly offered the Notes or any part thereof for
issue or sale to, or solicited any offer to buy any of the same from, anyone
other than you. Neither the Company nor anyone acting on its behalf has taken or
will take any action which would bring the issuance and sale of the Notes within
the provisions of Section 5 of the Securities Act of 1933, as amended, or the
registration or qualification provisions of any applicable blue sky or other
securities laws.
5.15 INVESTMENT COMPANY ACT STATUS. The Company is not an "investment
company" or a company "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended, or an "investment
adviser" within the meaning of the Investment Advisers Act of 1940, as amended.
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5.16 VOTING PROVISIONS. Neither the Charter Documents of the Company
nor any other agreement, document or instrument binding on or applicable to the
Company or its members contains any provision requiring a higher voting
requirement with respect to action taken (and/or to be taken) by the members of
the Company than that which would apply in the absence of such provision.
5.17 FOREIGN CREDIT RESTRAINTS. Neither the consummation of the
transactions contemplated by the Operative Documents nor the use of the proceeds
of the sale of the Notes will violate any provision of any applicable statute,
regulation or order of, or any restriction imposed by, the United States of
America or any authorized official, board, department, instrumentality or agency
thereof relating to the control of foreign or overseas lending, investment or
business.
5.18 BROKERS, ETC. Neither the Company nor any Person acting on its
behalf has dealt with any broker, finder, commission agent or other Person other
than Corporate Finance Advisers, Inc. in connection with the sale of the Notes
and the transactions contemplated by this Agreement and the Company is under an
obligation to pay a broker's fee, finder's fee or commission in connection with
such transactions to Corporate Finance Advisors, Inc. and to no other Person.
5.19 DISCLOSURE. Neither this Agreement nor any of the other Operative
Documents nor any other document, certificate or written statement furnished
including, without limitation, the financial statements referred to in section
5.3, to you by or on behalf of the Company in connection with the transactions
contemplated by the Operative Documents contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading in the light of the
circumstances under which such statements were made. There is no fact known to
the Company which materially adversely affects or in the future (so far as the
Company can now foresee) could reasonably be expected to result in a Material
Adverse Change which has not been set forth in this Agreement or in the other
Operative Documents.
5.20 YEAR 2000 COMPLIANCE. The Company currently expects that all
computer and automated systems of the Company that are material to its business
and operations as now conducted will be Year 2000 Compliant on a timely basis,
except where a failure to be Year 2000 Compliant could not reasonably be
expected to result in a Material Adverse Change.
6. USE OF PROCEEDS.
(a) The proceeds of the sale of the Notes will be used on the date of
the Closing for the purposes and paid to the Persons set forth on EXHIBIT 6
attached hereto.
(b) The Company does not own and will not use any part of the proceeds
of the sale of the Notes for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U (12CFR Part 221) of the Board of
Governors of the Federal Reserve System (herein called a "margin security") or
for the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry any margin security or for any other purpose which
might constitute the transactions contemplated by the Operative Documents a
"purpose credit" within the meaning of said Regulation U or cause this Agreement
or any of the other Operative Documents to violate Regulation U or any other
regulation of the Board of Governors of the Federal Reserve System or any other
applicable law, statute, regulation, rule, order or restriction or for the
purpose of buying of carrying or trading in any securities under such
circumstances as to involve the Company in a violation of Regulation X of said
Board (12CFR Part 224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12CFR Part 220).
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7. BOOKS OF ACCOUNT; FINANCIAL STATEMENTS; ADDITIONAL INFORMATION;
INSPECTION; ENVIRONMENTAL REPORT.
(a) The Company will at all times keep proper books of record and
account in which full, true and correct entries shall be made of all dealings or
transactions in relation to the Notes and the Lease and the properties, business
and affairs of the Company in accordance with generally accepted accounting
principles.
(b) The Company will furnish to you in duplicate, so long as you shall
be obligated to purchase Notes hereunder or shall hold any of the Notes, and
each other holder from time to time of the Notes:
(i) As soon as available, and in any event within 60 days
after the end of the first, second and third quarterly fiscal periods
of each fiscal year of the Company, a certificate of the managing
member of the Company, to the effect that the managing member has
reviewed the provisions of each of the Operative Documents and has no
knowledge of any Event of Default or any condition, event or set of
facts which constitutes or, after notice or lapse of time or both,
would constitute an Event of Default, or if such is not the case,
specifying the same, the nature thereof and what action the Company has
taken, is taking and proposes to take with respect thereto.
(ii) As soon as available, and in any event within 90 days
after the end of each fiscal year of the Company, a certificate of the
managing member of the Company, to the effect that during such fiscal
year and as at the date of such certificate (i) there has been no
change in the assets, liabilities or financial condition of the
Company, other than changes in the ordinary course of business which
have not been, either in any case or in the aggregate, materially
adverse; (ii) there has been no Material Adverse Change; and (iii) the
Company has not entered into any material transaction outside of the
ordinary course of business, except as contemplated by this Agreement,
and further stating its managing member has reviewed the provisions of
each of the Operative Documents and has no knowledge of any Event of
Default or any condition, event or set of facts which constitutes or,
after notice or lapse of time or both, would constitute an Event of
Default, or, if such is not the case, specifying such default, the
nature thereof and what action the Company has taken, is taking and
proposes to take with respect thereto.
(iii) Immediately upon acquiring knowledge thereof, written
notice of any claim, proceeding or dispute involving the Mortgaged
Property or any part thereof or interest therein or against the Company
(or as to which the Company is a party) if the amount involved exceeds
$250,000 or the matter would, if adversely determined, result in a
Material Adverse Change.
(iv) Immediately upon acquiring knowledge thereof whatsoever,
written notice of (i) the existence of any Event of Default or any
condition, event or set of facts which constitutes or, after notice or
lapse of time or both, would constitute an Event of Default, or (ii)
the fact that the holder of any Note or any other Indebtedness of the
Company or anyone else has given notice (or taken any other action)
with respect to a claimed default or Event of Default, specifying in
the case of both clauses (i) and (ii) the nature of the Event of
Default, condition, event, set of facts or fact and what action the
Company or, to the knowledge of the Company any other Person has taken,
is taking and proposes to take with respect thereto.
(v) Immediately upon acquiring knowledge thereof, written
notice of any condition or event which has resulted or would likely
result in (i) a Material Adverse Change, or (ii) a
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breach of or noncompliance with any material term, condition or
covenant contained herein or in any of the other Operative Documents or
in any other material contract which relates to the Mortgaged Property
or to which the Company is a party or by which it or its properties are
or may be bound.
(vi) Promptly upon receipt thereof, copies of all reports
(including, without limitation, audit reports and so-called management
letters) or written comments submitted to the Company by independent
certified public accountants in connection with each annual, interim or
special audit in respect of the financial statements or the accounts of
the Company made by such accountants.
(vii) Such other information relating to the Company and/or
the Mortgaged Property as from time to time may reasonably be
requested.
8. INSPECTION. The Company will permit any Person designated by you in
writing, on reasonable notice and at the Company's expense, to visit and inspect
any of the properties of the Company, to examine its books of account (and to
make copies thereof and take extracts therefrom) and other records, and to
discuss its affairs, finances and accounts with, and to be advised as to the
same by, its members and independent certified public accountants, all at such
reasonable times and intervals as you may desire.
9. PREPAYMENT OF NOTES.
9.1 RESTRICTION ON PREPAYMENT OF NOTES. No prepayment of the Notes may
be made except as expressly permitted by this Section 9.
9.2 OPTIONAL PREPAYMENT WITH PREMIUM. At any time or from time to time,
the Company may, at its option, upon notice as provided in Section 9.5, prepay
all or any part of the Notes in an integral multiple of $100,000 and a minimum
of the greater of (i) $500,000 and (ii) five percent (5%) of the principal
amount outstanding at the time the prepayment is to be made, or such lesser
amount of the principal of the Notes as shall be then outstanding, upon the
concurrent payment of an amount equal to the Make Whole Amount.
9.3 PREPAYMENT OF NOTES WITHOUT PREMIUM ON ACCOUNT OF DAMAGE,
DESTRUCTION OR TAKING AND FROM PROCEEDS OF TITLE INSURANCE. All amounts
representing:
(a) insurance proceeds on account of damage to or destruction
of any part of the Mortgaged Property or awards or compensation on
account of any taking by condemnation or eminent domain proceedings of
any part of the Mortgaged Property, or
(b) proceeds of title insurance received on account of any
loss with respect to any part of the Mortgaged Property,
and which are to be applied to the prepayment of the Notes pursuant to Section
2.05 of the Mortgage shall be applied to the prepayment, without Premium, of an
aggregate principal amount of the Notes equal to the aggregate amount of such
proceeds.
9.4 ALLOCATION AND APPLICATION OF PARTIAL PREPAYMENTS. In the case of
each prepayment of less than all of the principal amount of the Notes then
outstanding, the principal amount of the Notes to be prepaid shall be allocated
among all of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts thereof not theretofore
called for prepayment,
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with adjustments, to the extent practicable, to compensate for any prior
prepayments not made exactly in such proportion. Each partial prepayment of the
Notes pursuant to Section 9.2 or 9.3 shall be applied to the payment of
principal of the Notes, and the equal monthly installments of combined principal
and interest ("Installment Payments") on the Notes payable after the date of
such partial prepayment shall be reduced and recalculated so that upon the due
payment of all such Installment Payments through October 26, 2014 there shall
have been paid to the holders of the Notes all of the principal amount of the
Notes, together with all interest accrued and unpaid thereon through such date.
9.5 NOTICE OF PREPAYMENT, ETC. In the case of each prepayment of the
Notes, the Company will give written notice thereof to each holder of the Notes,
specifying (a) the date fixed for such prepayment, (b) the aggregate principal
amount of the Notes to be prepaid on such date, (c) the principal amount of the
Notes held by each such holder to be prepaid on such date, (d) the Section of
this Agreement or the Mortgage pursuant to which such prepayment is to be made
and (e) an estimation (based upon an assumed Treasury Rate) of the Premium, if
any, applicable to such prepayment, such notice to demonstrate the calculation
of any Premium to your reasonable satisfaction. Such notice shall be given not
less than 30 nor more than 45 days prior to the date fixed for such prepayment.
9.6 AMORTIZATION SCHEDULES. Prior to each prepayment of less than all
of the principal amount of the Notes then outstanding, the Company will deliver
to the holder of each Note then being partially prepaid a revised amortization
schedule with respect to each such Note, satisfactory in substance and form to
each such holder, setting forth the amounts of the principal and interest (and
the amount of each Installment Payment and the amount of the installment due at
the scheduled maturity of the Notes) to be paid on the Notes after the date of
such partial prepayment to and including the maturity date thereof, so that upon
the due payment of all such amounts the entire principal amount of the Notes,
together with all interest accrued thereon, shall have been paid in full.
9.7 MATURITY; SURRENDER, ETC. In the case of each prepayment, the
principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date. Any Note prepaid in full shall be
surrendered to the Company and canceled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any Note.
9.8 PURCHASE OF NOTES. The Company will not, and will not permit any
Affiliate of the Company or Mercury to, directly or indirectly, purchase or
otherwise acquire any of the outstanding Notes except (a) by way of payment or
prepayment in accordance with the provisions of this Agreement and of the
Mortgage, or (b) pursuant to an offer made by the Company pro rata and on the
same terms to each holder of the Notes at the time outstanding.
10. DEFINITIONS.
10.1 DEFINITIONS OF CAPITALIZED TERMS. The terms defined in this
Section 10.1, whenever used and capitalized in this Agreement, shall, unless the
context otherwise requires, have the following respective meanings:
"AFFILIATE" of any Person shall mean any other Person which, directly
or indirectly, controls or is controlled by or is under common control with such
first-mentioned Person and, without limiting the generality of the foregoing,
shall include (a) any Person beneficially owning or holding 5% or more of any
shares or a class of voting securities or voting interests of such
first-mentioned Person or (b) any other Person of which such first-mentioned
Person owns or holds 5% or more of any shares or a class of voting securities.
For the purposes of this definition, "CONTROL" (including, with correlative
meanings, the terms "CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used
with respect to any Person, shall
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mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of any shares or interests or a class of voting securities or
interests or by contract or otherwise; PROVIDED, that in no event shall the fact
that a Person is a holder of Indebtedness of such Person be considered to enable
such Person to direct or cause the direction of the management and policies of
such Person.
"APPRAISED VALUE" shall have the meaning specified in Section 4.4.
"ASSIGNMENT" shall have the meaning specified in Section 1 and shall
include the Assignment as from time to time amended or supplemented.
"CAPITAL LEASE" shall mean any lease or similar arrangement which is of
such a nature that payment obligations of the lessee or obligor thereunder are
required to be capitalized and shown as liabilities upon a balance sheet of such
lessee or obligor prepared in accordance with generally accepted accounting
principles.
"CHARTER DOCUMENTS" shall mean the operating agreement, limited
liability agreement or such other document which sets forth the rights and
obligations of the members and the certificate of formation.
"CLOSING" shall have the meaning specified in Section 3.
"CODE" or "INTERNAL REVENUE CODE" shall mean the Internal Revenue Code
of 1986, as amended from time to time, and the regulations and rulings
thereunder.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency from time to time administering the Exchange Act.
"COMPANY" shall mean 199 Riverneck, LLC, a Delaware limited liability
company.
"COMPLIANCE CERTIFICATE" shall mean a certificate signed on behalf of
the Company by the managing member.
"DERIVATIVE TRANSACTION" shall mean (a) any rate, basis, commodity,
currency, debt or equity swap; (b) any cap, collar or floor agreement; (c) any
rate, basis, commodity, currency, debt or equity exchange or forward agreement;
(d) any rate, basis, commodity, currency, debt or equity option; (e) any other
similar agreement; (f) any option entered into any of the foregoing; (g) any
master agreement or other agreement providing for any of the foregoing; and (h)
any combination of the foregoing.
"ENVIRONMENTAL LAWS" shall have the meaning in the Environmental Risk
Agreement.
"ENVIRONMENTAL RISK AGREEMENT" shall have the meaning specified in
Section 1 and shall include the Environmental Risk Agreement as from time to
time amended or supplemented.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations and rulings thereunder.
"ERISA AFFILIATE" shall mean each trade or business (whether or not
incorporated) that, together with a Person, would be treated as a single
employer with such Person under section 4001(b) of ERISA, or that is a member of
a group of which such Person is a member and that is a controlled group within
the meaning of section 4971(e)(2)(B) of the Code.
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"EVENT OF DEFAULT" shall have the meaning specified in Section 11.
"EXCHANGE ACT" shall mean the Securities and Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"GOVERNMENTAL AUTHORITY" means (a) the government of (i) the United
States of America or any state or other political subdivision thereof, or (ii)
any jurisdiction in which the Company conducts all or any part of its business,
or which asserts jurisdiction over any properties of the Company, or (b) any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of, or pertaining to, any such government.
"GUARANTY" of any Person shall mean any obligation of such Person
guaranteeing, directly or indirectly, any Indebtedness, liability or other
obligation of any other Person in any manner, but in any event including all
endorsements (other than for collection or deposit in the ordinary course of
business), all discounts with recourse and all obligations incurred through an
agreement, contingent or otherwise, (a) to purchase the obligations of any other
Person or any security therefor or to advance or supply funds for the payment or
purchase of such obligations, or (b) to purchase, sell or lease (as lessee or
lessor) property, products, materials or supplies or to purchase or sell
transportation or services, primarily for the purpose of enabling the obligor to
make payment of such obligations or to assure the owner of such obligations
against loss, regardless of the delivery or non-delivery of the property,
products, materials or supplies or the furnishing or non-furnishing of the
transportation or services, or (c) to provide funds for the payment of, or
obligating such Person to make, any loan, advance, capital contribution or other
investment in the obligor for the purpose of assuring a minimum equity, asset
base, working capital or other balance sheet condition for any date or to
provide funds for the payment of any obligation, dividend or stock liquidation
payment, or otherwise to supply funds to or in any manner invest in the obligor.
"IMPROVEMENTS" shall have the meaning specified in Section 4.3.
"INDEBTEDNESS" of any Person shall mean all indebtedness, liabilities
and other obligations of such Person (other than items of shareholders' equity)
which would, in accordance with generally accepted accounting principles, be
classified upon a balance sheet of such Person as liabilities of such Person,
but in any event including:
(a) all Guaranties of such Person;
(b) all indebtedness, liabilities and other obligations
secured by any mortgage, lien, pledge, charge, security interest or
other encumbrance in respect of property owned by such Person, whether
or not such Person has assumed or become liable for the payment of such
obligations;
(c) all indebtedness, liabilities and other obligations of
such Person arising under any conditional sale or other title retention
agreement, whether or not the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property;
(d) all indebtedness, liabilities and other obligations
arising in connection with Derivative Transactions, letters of credit,
bankers' acceptances or other credit enhancement facilities; and
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(e) the amount of the obligation required to be recorded by
the lessee in respect of any Capital Lease under which such Person is
lessee.
"INSTALLMENT PAYMENTS" shall have the meaning specified in Section 9.4.
"INVESTMENT" shall mean any investment made by stock purchase, capital
contribution, loan, advance, acquisition of Indebtedness, Guaranty, or
otherwise.
"LEASE" shall have the meaning specified in Section 1 and shall include
the Lease as from time to time amended or supplemented.
"LIEN" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien (statutory or otherwise) preference,
priority, security interest or other charge or encumbrance of any kind, or any
other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of
way or other encumbrance on title to real property and any lease having
substantially the same effect as any of the foregoing.
"MAKE WHOLE AMOUNT" shall mean at any time with respect to any
prepayment or payment (whether on account of acceleration or otherwise) of the
Notes, to the extent that the Treasury Rate plus 75 basis points at such time is
lower than the per annum rate of interest borne by the Notes, the excess of (a)
the present value of the principal and interest payments on and in respect of
the Notes being prepaid or paid, as the case may be, that would otherwise become
due and payable (without giving effect to such prepayment or payment) (including
the final payment on the maturity date of the Notes), discounted on a monthly
basis at a rate which is equal to the Treasury Rate plus 75 basis points over
(b) the principal amount of the Notes being prepaid or paid, as the case may be.
To the extent that the Treasury Rate plus 75 basis points at the time of such
payment is equal to or higher than the per annum rate of interest borne by the
Notes, the Make Whole Amount is zero.
"MATERIAL ADVERSE CHANGE" shall mean a material adverse change in or
effect upon any of (a) the condition (financial or otherwise), business,
performance, operations, properties, profits or prospects of the Company or any
of its Subsidiaries or Mercury or any of its Subsidiaries, the effect of which
will, or could reasonably be expected to, adversely affect the ability of the
Company or Mercury to perform their obligations under the Operative Documents,
(b) the legality, validity or enforceability of any of the Operative Documents
including, without limitation, the validity, enforceability, perfection and
priority of any Liens created by the Security Documents or (c) the rights and
remedies of any holder of Notes with respect thereto.
"MERCURY" shall have the meaning specified in Section 1.
"MORTGAGE" shall have the meaning specified in Section 1 and shall
include the Mortgage as from time to time amended or supplemented.
"MORTGAGED PROPERTY" shall have the meaning specified in Section 1.
(see also Section 4.3)
"NET INCOME" shall mean, for any Person, for any period, the net
income, excluding all extraordinary, unusual, nonrecurring and/or nonoperating
items, of such Person, for such period, determined in accordance with generally
accepted accounting principles.
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"NET WORTH" of any Person shall mean, at any date, the sum of (a) the
capital stock, in the case of a corporation, or membership units, in the case of
a limited liability company, (excluding treasury stock or units and capital
stock or membership units subscribed and uninsured) and (b) surplus (including
retained earnings, additional paid-in capital and the balance of the current
profit and loss amount not transferred to surplus) of such Person at such date,
determined in accordance with generally accepted accounting principles.
"NOTES" shall have the meaning specified in Section 1.
"OFFICER'S CERTIFICATE" shall mean a certificate signed on behalf of
Mercury by its President or Treasurer.
"OPERATING AGREEMENT" shall have the meaning specified in Section 5.1.
"OPERATIVE DOCUMENTS" shall mean this Agreement, the Notes, the
Mortgage, the Assignment, the Environmental Risk Agreement, the Tenant
Agreement, the Representation Letter and the Lease and each of the other
agreements, documents and instruments executed in connection herewith and
therewith, each as may from time to time be amended, modified or supplemented.
"PARCELS" shall have the meaning specified in Section 4.3.
"PERMITTED ENCUMBRANCES" shall have the meaning specified in Article VI
of the Mortgage.
"PERSON" shall mean an individual or corporation, a partnership or
joint venture, a business, a trust, an unincorporated organization or a
government or any agency or political subdivision thereof.
"PLAN" shall mean an "employee benefit plan" (as defined in section
3(3) of ERISA) that is or has been established or maintained or to which
contributions are or have been made or are required to be made by the Company,
or Mercury or any ERISA Affiliate, as the case may be, with respect to which the
Company, or Mercury or any ERISA Affiliate may have any liability.
"PREMISES" shall have the meaning specified in the Lease.
"PREMIUM" shall mean the Make-Whole Amount and any other payment in the
nature thereof required to be paid on the Notes.
"REPRESENTATION LETTER" shall have the meaning specified in Section 1
and shall include the Representation Letter as from time to time amended or
supplemented.
"REQUIRED HOLDERS" as applied to describe the requisite holder or
holders of any class of Notes shall mean, at any date, the holder or holders of
51% or more in aggregate principal amount of all Notes at the time outstanding
(excluding all Notes at the time owned by the Company or any Affiliate of the
Company or Mercury).
"SECURED OBLIGATIONS" shall mean:
(a) principal of and Premium, if any, and interest on and fees
and other amounts payable with respect to the Notes; and
(b) any and all other Indebtedness and obligations under any
of the Operative Documents on the part of the Company or under any
other agreement, document or instrument
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relating thereto, all as supplemented or amended from time to time and
in each case whether now existing or hereafter arising.
"SOLVENT" shall mean, when used with respect to any Person, that (a)
such Person is not engaged in business or about to engage in business for which
its total assets would constitute unreasonably small capital, (b) such Person
will be able to pay its debts and other liabilities, whether fixed or
contingent, as they mature, (c) such Person has access to adequate capital for
the conduct of its businesses and the discharge of its debts incurred in
connection therewith as such debts mature and (d) the present fair salable value
of such Person's total assets (assuming an orderly liquidation and assuming such
assets may be sold in part or in whole as a going concern) is not less than the
amount that will be required to pay its probable liability on its debts and
other liabilities, whether fixed or contingent, as they mature (the amount of
contingent liabilities being computed at any time as the amount which, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability).
"SUBSIDIARY", as applied to any Person, shall mean any other Person a
majority (by number of votes) of the Voting Stock of which is owned by such
first-mentioned Person or by one or more Subsidiaries of such first-mentioned
Person or by such first-mentioned Person and one or more other Subsidiaries of
such first-mentioned Person.
"TANGIBLE NET WORTH" shall mean, at any date, the Net Worth of any
Person, minus the net book value of all assets of such Person, after deducting
any reserves applicable thereto, which would be characterized as intangible
under generally accepted accounting principles including, without limitation,
good will, trademarks, trade names, service marks, brand names, copyrights,
patents and unamortized debt discount and expense, organizational expense and
the excess of the equity in any Subsidiary over the cost of the investment in
such Subsidiary.
"TENANT AGREEMENT" shall have the meaning specified in Section 1 and
shall include the Tenant Agreement as from time to time amended or supplemented.
"TREASURY RATE" shall mean at any time with respect to any Notes being
prepaid or paid (whether on account of acceleration or otherwise), as the case
may be, the arithmetic average of the two most recent yields to maturity on the
United States Treasury obligation with a constant maturity (as compiled by and
published by the United States Federal Reserve Statistical Release designated
H.15(519) or its successor publication for the two business days next preceding
the date of such prepayment or payment) most nearly equal to (by rounding to the
nearest month) the Weighted Average Life to Maturity of the Notes then being
prepaid or paid (whether on account of acceleration or otherwise).
"VOTING STOCK" when used with reference to any Person, shall mean
shares or other interests (however designated) of such Person having ordinary
voting power for the election of a majority of the members of the board of
directors (or other governing body of such Person), other than shares having
such power only by reason of the happening of a contingency.
"WEIGHTED AVERAGE LIFE TO MATURITY" of any Indebtedness or obligation
shall mean, at any date, the number of years obtained by dividing the then
Remaining Dollar-years of such Indebtedness or obligation by the then
outstanding principal amount of such Indebtedness or obligation. For purposes of
this definition, the "REMAINING DOLLAR-YEARS" of any Indebtedness or obligation
shall mean, at any date, the total of the products obtained by multiplying (a)
the amount of each then remaining installment or other required payment,
including payment at final maturity, in respect thereof, by (b)
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the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"YEAR 2000 COMPLIANT" means that neither the performance nor
functionality of the operating systems for a Person's computer and all software
applications that run on such computers is affected by dates prior to, during,
spanning or after January 1, 1000, and shall include, but not be limited to (a)
accurately processing (including, but not limited to calculating, comparing and
sequencing) date and time data from, into, and between the years 1999 and 2000
and leap year calculations, (b) functioning without error, interruption or
decreased performance relating to such date and time data, (c) accurately
processing such date and time data when used in combination with other
technology, if the other technology properly exchanges date and time data, (d)
accurate date and time data century recognition, (e) calculations that
accurately use same century and multi-century formulas and date and time values,
(f) date and time data interface values which reflect the correct century, and
(g) processing, storing, receiving and outputting all date and time data in a
format that accurately indicates the century of the date and time data.
10.2 OTHER DEFINITIONS. The terms defined in this Section 10.2,
whenever used in this Agreement, shall, unless the context otherwise requires,
have the respective meanings hereinafter specified.
"THIS AGREEMENT" shall mean, and the words "HEREIN", "HEREOF",
"HEREUNDER" and words of similar import shall refer to, this instrument as it
may from time to time be amended or supplemented.
"CORPORATION" shall include an association, joint stock company,
business trust or other similar organization.
"SHARES" of any Person shall include any and all shares of capital
stock of such Person of any class or other shares, interests, participations or
other equivalents (however designated) in the capital of such Person.
10.3 ACCOUNTING TERMS AND PRINCIPLES. All accounting terms used herein
which are not expressly defined in this Agreement shall have the respective
meanings given to them in accordance with generally accepted accounting
principles, all computations made pursuant to this Agreement shall be made in
accordance with generally accepted accounting principles and all financial
statements shall be prepared in accordance with generally accepted accounting
principles.
11. REMEDIES.
11.1 EVENTS OF DEFAULT DEFINED; ACCELERATION OF MATURITY. If any one or
more of the following events ("Events of Default") shall occur and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment
of all or any part of the principal of, or Premium (if any) or interest
on, any Note when and as the same shall become due and payable, whether
at the stated maturity thereof, by notice of or demand for prepayment,
or otherwise, and such default shall have continued for a period of
three days;
(b) if a Default (as defined in the Lease) of Mercury under
the Lease shall occur or if a default of the Company under the Lease
shall occur;
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(c) if an Event of Default (as defined in the Mortgage)shall
occur;
(d) if default shall be made in the performance or observance
of any covenant, agreement or condition contained in Section 1.01,
1.02, 1.03, 1.04, 1.05, 1.12, 1.17, 1.19, 1.20, 1.23 and Article 2 of
the Mortgage, Section 6, 9, 11, 13 and 14 of the Assignment, Section 7,
9, 10, 11, 14, 15, and 16 of the Tenant Agreement, Section 3, 4.1, 4.2,
4.4, 4.5, 4.7, 4.8 and 5 of the Representation Letter or in Section 6,
7(b), 8, 9, 12, 15 and 28 hereof;
(e) if default shall be made in the performance or observance
of any other of the covenants, agreements or conditions contained in
this Agreement, the Mortgage, the Assignment, the Tenant Agreement, the
Environmental Risk Agreement or the Representation Letter and such
default shall have continued for a period of 30 days after the earlier
to occur of (i) the Company's obtaining actual knowledge of such
default or (ii) the Company's receipt of written notice of such
default;
(f) if the Company or Mercury shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay
its debts as they become due, or shall file a voluntary petition in
bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
or shall file any answer admitting or not contesting the material
allegations of a petition filed against the Company or Mercury in any
such proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, custodian, receiver, liquidator or fiscal
agent of the Company or Mercury or of all or any substantial part of
the properties of the Company or Mercury, or the Company or Mercury
shall take any action looking to the dissolution or liquidation of the
Company or Mercury;
(g) if, within 60 days after the commencement of an action
against the Company or Mercury seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under any present or future statute, law or regulation, such action
shall not have been dismissed or all orders or proceedings thereunder
affecting the operations or the business or affairs of the Company or
Mercury stayed, or if the stay of any such order or proceeding shall
thereafter be set aside, or if, within 60 days after the appointment
without the consent or acquiescence of the Company or Mercury of any
trustee, custodian, receiver, liquidator or fiscal agent of the Company
or Mercury or of all or any substantial part of the properties of the
Company or Mercury, such appointment shall not have been vacated;
(h) if, under the provisions of any law for the relief or aid
of debtors, any court or Governmental Authority shall assume custody or
control of the Company or Mercury or of all or any substantial part of
their respective properties and such custody or control shall not be
terminated or stayed within 60 days from the date of assumption of such
custody or control;
(i) if the Company or Mercury shall fail to make any payment
due on any Indebtedness for borrowed money (other than the Notes issued
hereunder) or in respect of the deferred purchase price of property or
on any Guaranty of the foregoing or on any obligation under any lease
(other than the Lease), including, without limitation, any Capital
Lease, or under any conditional sale or other title retention agreement
or shall fail to perform, observe or discharge any covenant, condition
or obligation in any agreement securing or relating to the same;
PROVIDED that, as applied to Mercury, the aggregate amount of such
Indebtedness,
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purchase price of property, Guaranty, lease obligation or conditional
sale or title retention agreement shall equal or exceed $250,000;
(j) if final judgment for the payment of money which, together
with all other outstanding final judgments for the payment of money
against the Company or Mercury, exceeds an aggregate of $250,000 (or,
in the case of Mercury, $500,000) shall be rendered by a court of
record against the Company or Mercury, and the Company or Mercury shall
not discharge the same or provide for its discharge in accordance with
its terms, or procure a stay of execution thereof within 60 days from
the date of entry thereof and within such period of 60 days, or such
longer period during which execution of such judgment shall have been
stayed, move to vacate such judgment or appeal therefrom and cause the
execution thereof to be stayed pending determination of such motion or
during such appeal;
(k) if any representation or warranty made by the Company,
herein or by the Company or Mercury in any of the other Operative
Documents shall prove to have been false or incorrect in any material
respect on the date as of which made, or shall have been breached in
any material respect, as the case may be;
(l) if a default of the character specified in subdivisions
(e), (g), (h) or (j) shall occur and, prior to the expiration of the
grace period mentioned therein, a related judgment against the Company
or Mercury remains unsatisfied, unsecured by bond and unstayed pending
appeal shall have become effective, the result or effect of which
judgment is to render the Company or Mercury unable to cure such
default within such grace period, or any other event shall have
occurred which has that result or effect or the Company shall have
admitted its inability to cure such default within such grace period;
(m) if Mercury shall cease to own all of the outstanding
membership units of the Company or if Mercury shall cease to be the
managing member of the Company other than as permitted under Section
1.19 of the Mortgage;
(n) if any license or permit now held or hereafter acquired by
the Company or Mercury is lost, suspended, revoked or not renewed and
such loss, suspension, revocation or non-renewal shall have a material
adverse effect on the Mortgaged Property or any part thereof or
interest therein or would result in a Material Adverse Change to the
Company or Mercury;
(o) if at any time any of the Operative Documents for any
reason expires, fails to be in full force and effect or shall be
disaffirmed, repudiated, canceled or terminated or shall be or be
declared to be unenforceable or null or void; or
(p) the failure of Mercury to maintain a minimum Tangible Net
Worth of $54,450,000 on the date of the Closing (after giving effect to
the transaction contemplated hereby) and commencing with November 2,
2000 and on each November 2 thereafter, a minimum Tangible Net Worth
equal to the sum of (x) $54,450,000 plus (y) fifty percent (50%) of
Mercury's cumulative positive Net Income since the date of the Closing;
(q) an Event of Default (as defined in that certain Note
Purchase Agreement between you and Riverneck Road, LLC dated October
26, 1999) shall occur and be continuing; and
(r) the failure to obtain a certificate of compliance for the
order of conditions identified on EXHIBIT 4.5 on or before June 1,
2000.
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then, in the case of an Event of Default of the character described in
subdivisions (a), (b), (c), (d), (e), (i), (j), (k), (1), (m), (n), (o), (p),
(q) or (r) of this Section 11.1 and at the option of the Required Holders
exercised by written notice to the Company, the principal of all Notes shall
forthwith become due and payable, together with interest accrued thereon,
without presentment, demand, protest or additional notice of any kind, all of
which are hereby expressly waived, and the Company shall forthwith upon any such
acceleration pay to the holder or holders of all the Notes then outstanding (i)
the entire principal of and interest accrued on the Notes, and (ii) an amount
equal to the Make Whole Amount with respect to such Notes, as liquidated damages
and not as a penalty; PROVIDED that during the existence of an Event of Default
of the character described in subdivision (a) of this Section 11.1 and
irrespective of whether all of the Notes have been declared due and payable by
the Required Holders, any holder of Notes who or which has not consented to any
waiver with respect to such Event of Default may, at his or its option, by
written notice to the Company, declare all Notes then held by such holder to be,
and such Notes shall thereupon become, forthwith due and payable, together with
interest accrued thereon, without presentment, demand, protest or additional
notice of any kind, all of which are hereby expressly waived, and the Company
shall forthwith upon any such acceleration pay to such holder (i) the entire
principal of and interest accrued on such Notes, and (ii) an amount equal to the
Make Whole Amount with respect to such Notes, as liquidated damages and not as a
penalty. Upon the occurrence of an Event of Default of the character described
in subdivisions (f), (g) or (h) of this Section 11.1, the principal of all Notes
shall forthwith become due and payable, together with interest accrued thereon
(including any interest accruing after the commencement of any proceeding by or
against the Company under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal or state bankruptcy, insolvency or
other similar law, and any other interest that would have accrued but for the
commencement of such proceeding, whether or not any such interest is allowed as
a claim enforceable against the Company in such proceeding), without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived, and the Company shall forthwith upon any such
acceleration pay to the holder or holders of all the Notes then outstanding (i)
the entire principal of and interest accrued on the Notes, and (ii) an amount
equal to the Make Whole Amount with respect to such Notes, as liquidated damages
and not as a penalty.
Notwithstanding the foregoing provisions, at any time after the
occurrence of an Event of Default of the character specified in subdivisions
(f), (g) or (h) or of notice by the holder or holders of 51% or more in
aggregate principal amount of the Notes at the time outstanding (excluding any
Notes at the time owned by the Company or any Affiliate of the Company or
Mercury) of an Event of Default of the character described in subdivisions (a),
(b), (c), (d), (e), (i), (j), (k), (1), (m), (n) (o), (p), (q) or (r) and before
any judgment, decree or order for payment of the money due has been obtained by
any holder or holders of the Notes, the holder or holders of 66-2/3% or more in
aggregate principal amount of all Notes at the time outstanding (excluding any
Notes at the time owned by the Company or any Affiliate of the Company) by
written notice to the Company, may rescind and annul such Event of Default or
notice of such Event of Default and the consequences thereof with respect to all
of the Notes (including any Notes which were accelerated pursuant to the proviso
in the next preceding paragraph) if: (1) the Company has paid a sum sufficient
to pay for (any and all) all overdue installments of interest on all Notes at
the rate specified in such Notes; (b) the principal of (and Premium, if any, on)
any Notes which have become due otherwise than by such Event of Default or
notice thereof and interest thereon at the rate specified in the Notes and (c)
to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate specified in the Notes; and (2) all Defaults and Events of
Default, other than the non-payment of the principal of the Notes have been
cured or waived as provided in Section 15. No such rescission shall affect any
subsequent Default or impair any right consequent thereon.
11.2 SUITS FOR ENFORCEMENT. In case any one or more of the Events of
Default specified in Section 11.1 shall have occurred and be continuing, you or
the holder of any Note may proceed to protect and enforce your or such holder's
rights either by suit in equity or by action at law, or both, whether for
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the specific performance of any covenant or agreement in this Agreement or in
aid of the exercise of any power granted in this Agreement, or the holder of any
Note may proceed to enforce the payment of such Note or to enforce any other
legal or equitable right of the holder of such Note, including, without
limitation, all rights of such holder under the Mortgage, the Assignment, the
Tenant Agreement and/or the Environmental Risk Agreement. If the Company shall
default in the payment of any principal of or Premium, if any, or interest on or
other amount in respect of any of the Notes, it will pay to the holders thereof
such further amounts, to the extent lawful, as shall be sufficient to pay the
costs and expenses of collection, including reasonable counsel fees.
11.3 REMEDIES CUMULATIVE. No remedy herein conferred upon you or the
holder of any Note is intended to be exclusive of any other remedy, and each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise.
11.4 REMEDIES NOT WAIVED. No course of dealing between the Company and
you or the holder of any Note and no delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any of your rights or any rights of
any holder of such Note.
11.5 NOTICE OF ACTION BY NOTEHOLDERS OF CLAIMED DEFAULTS. If the holder
or holders of any Notes shall accelerate the maturity thereof as provided in
Section 11.1, or if the holder of any Note or other obligation or security of
the Company shall give any notice of a claimed default or Event of Default or
shall take any other action with respect to a claimed default or Event of
Default, forthwith upon obtaining knowledge thereof the Company will give each
holder of any outstanding Notes written notice specifying such action and the
nature and status of the claimed default or Event of Default.
12. EXPENSES; INDEMNITY.
(a) Whether or not the transactions contemplated hereby shall
be consummated, the Company will pay (i) the costs and expenses of
preparing the Operative Documents and any other documents and
instruments referred to herein or amendments hereof or thereof, (ii)
the cost of obtaining a private placement number for the Notes from
Standard and Poor's Corporation, (iii) the fees, expenses and
disbursements of you, your special counsel and other counsel retained
by you or the Company in connection with the transactions contemplated
hereby, including, without limitation, any amendment of or waivers,
consents or opinions under or with respect to any of the Operative
Documents, (iv) any broker's, finder's or financial advisory fees, (v)
the cost of the Company's performance of and compliance with the terms
and conditions hereof and the other instruments mentioned herein,
including, without limitation, insurance premiums, recording fees,
filing fees, fees and expenses of engineers and other consultants and
other costs related hereto and thereto, (vi) all expenses incurred by
you in connection with the transactions contemplated hereby and in
connection with the enforcement of any rights hereunder, including,
without limitation, costs of collection and reasonable attorneys, fees
and out-of-pocket expenses, (vii) the allocated costs and expenses of
your in-house counsel in connection with the transactions contemplated
hereby in any circumstance in which outside counsel is not engaged,
including, without limitation, any amendments of or waivers, consents
or opinions under or with respect to any of the Operative Documents,
(viii) the cost of any appraisal, insurance, survey, site assessment,
environmental audit, opinion or certificate required by the Operative
Documents and (ix) the fees, expenses and disbursements described in
section 28 hereof.
(b) The Company will indemnify each holder of a Note, its
directors, officers, agents and employees and each Affiliate of each
such holder (and the respective directors,
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officers, agents, and employees of each such Affiliate) and hold each
such Person harmless from and against any and all claims, damages,
liabilities and expenses (including, without limitation, all reasonable
fees and disbursements of counsel with whom any such Person may consult
in connection therewith and all expenses of litigation or preparation
therefor) which any such Person may incur or which may be asserted
against any such Person in connection with the negotiation, execution
and delivery of the Operative Documents and the consummation of the
transactions contemplated thereby, including, without limitation, any
and all claims for or on account of (i) brokers' or finders' fees or
commissions or financial advisory fees with respect to the transactions
contemplated by the Operative Documents or (ii) any bodily injury or
death or property damage occurring in or upon the Mortgaged Property
through any cause.
(c) The covenants contained in subdivisions (a) and (b)of this
Section 12 shall survive the payment of the Notes and termination of
this Agreement and the other Operative Documents.
13. REGISTRATION, TRANSFER AND EXCHANGE OF NOTES, MINIMUM DENOMINATIONS,
ETC.
(a) All Notes issued hereunder shall be issued in registered
form. The Company shall keep at its principal office a register in
which, subject to such reasonable regulations as it may prescribe, but
at its expense (other than transfer taxes, if any), the Company shall
provide for the registration and transfer of the Notes.
(b) Whenever any Note or Notes shall be surrendered by the
holder thereof at the principal office of the Company for transfer or
exchange, the Company at its expense will execute and deliver in
exchange therefor a new Note or Notes as may be requested by such
holder, in the same aggregate unpaid principal amount as the aggregate
unpaid principal amount of the Note or Notes so surrendered, PROVIDED
that any transfer tax relating to such transaction shall be paid by the
holder requesting the exchange. Each such new Note shall be in
registered form, shall be dated as of the date to which interest has
been paid on the unpaid principal amount of the Note or Notes so
surrendered (or dated the date of the surrendered Note if no interest
has been paid thereon), and shall be in such principal amount and
registered in such name or names as such holder may designate in
writing. No reference need be made in any such new Note to any
prepayments of principal previously due and paid upon the Note or Notes
surrendered for exchange.
(c) The Company may treat the Person in whose name any Note is
registered as the owner of such Note for the purpose of receiving
payment of the principal of, Premium, if any, and interest on such Note
and for all other purposes, whether or not such Note be overdue, and
the Company shall not be affected by any notice to the contrary.
(d) The Company shall not be obligated to issue to any Person
any Note in a denomination of less than $500,000 unless the aggregate
principal amount of all Notes held or to be held by such Person and its
Affiliates is less than $500,000 or such Person is acquiring all of the
Notes held by any other Person and the Affiliates of such other Person
(in which case, the Company shall issue a Note in such aggregate
denomination as the Notes held or to be acquired.
14. REPLACEMENT OF NOTES. Upon receipt by the Company of evidence satisfactory
to it of the loss, theft, destruction or mutilation of any Note and (in case of
loss, theft or destruction) an indemnity satisfactory to it, and upon surrender
and cancellation of such Note, if mutilated, the Company at its expense will
execute and deliver in lieu of such Note a new Note of like tenor, except that
no reference
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need be made in such new Note to any prepayments of principal previously due and
paid upon the Note in lieu of which such new Note is executed and delivered. Any
such new Note shall be dated as of the date to which interest has been paid on
the unpaid principal amount of the Note in lieu of which such new Note is
executed and delivered (or dated the date of the Note in lieu of which such new
Note is executed and delivered if no interest has been paid thereon). The term
"outstanding" when used in this Agreement with reference to the Notes as of any
particular time shall not include any Note in lieu of which a new Note has been
executed and delivered by the Company in accordance with provisions of this
Section 14. Your indemnity agreement or affidavit of lost Notes or the indemnity
agreement or affidavit of lost Notes of any other institutional holder of the
Notes, in form reasonably satisfactory to the Company, shall constitute
indemnity or evidence of loss, theft, destruction or mutilation of any Note, as
the case may be, satisfactory to the Company for the purpose of this Section 14.
15. AMENDMENT AND WAIVER.
(a) Until the purchase of Notes to be made hereunder shall
have been made, any term, covenant, agreement or condition of the
Operative Documents may be amended, or compliance therewith may be
waived, by written instrument signed by the parties hereto.
(b) Any term of the Agreement and, unless explicitly provided
otherwise therein, any term of the Operative Documents may, with the
consent of the Company, be amended, or compliance therewith may be
waived, in writing, only by the Required Holders entitled to the
benefits of such term, PROVIDED that (i) without the consent of the
holders of all of the Notes at the time outstanding, no such amendment
or waiver shall (A) change the amount of the principal of or any rate
of interest on Premium payable with respect to any of the Notes or
change the payment terms of any of the Notes, or, except for the
Subordination Agreement, subordinate the obligation of the Company to
pay any amount due on the Notes to any other obligation, or (B) change
the percentage of holders of Notes required to approve any such
amendment, effectuate any such waiver or accelerate payment of the
Notes and (ii) no such amendment or waiver shall extend to or affect
any obligation not expressly amended or waived or impair any right
consequent thereon.
(c) The Company will not solicit, request or negotiate for or
with respect to any proposed waiver, change, amendment or discharge of
any of the provisions of the Operative Documents unless each holder of
the Notes (irrespective of the amount of Notes then owned by it) shall
be informed thereof by the Company and shall be afforded the
opportunity of considering the same and shall be supplied by the
Company with sufficient information to enable it to make an informed
decision with respect thereto. Executed or true and correct copies of
any waiver, change, amendment or discharge effected pursuant to this
Section 15 shall be delivered by the Company to each holder of Notes
forthwith following the date on which the same shall have been executed
and delivered by the holder or holders of the Notes. The Company will
not, directly or indirectly, pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or
otherwise, to any holder of the Notes as consideration for or as an
inducement to the entering into by any holder of the Notes of any
waiver, change, amendment or discharge of any of the terms and
provisions of the Operative Documents unless such remuneration is
concurrently paid, on the same terms, ratably to the holders of all of
the Notes then outstanding.
(d) Any waiver, change, amendment or discharge pursuant to
this Section 15 shall apply equally to all the holders of the Notes and
shall be binding upon them, upon each future holder of any Note and
upon the Company.
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(e) In determining whether the holders of the requisite
principal amount of outstanding Notes have given any authorization,
consent or waiver, Notes owned by the Company or any Affiliate of the
Company shall be disregarded and deemed not to be outstanding.
16. METHOD OF PAYMENT OF NOTES. Irrespective of any provision hereof or of the
Mortgage or of the Notes to the contrary, so long as you or any other
institution shall hold any Note, the Company will make all payments of the
principal of and Premium, if any, and interest on such Note to you or such other
institution by the method and at the address for such purpose specified in
SCHEDULE I attached hereto or as specified by such other institution, or by wire
transfer or by payment in immediately available funds or at such other address
within the continental United States as you or such other institution may
designate in writing, without requiring any presentation or surrender of such
Note, except that any Note paid or prepaid in full shall be surrendered to the
Company and canceled.
17. LIABILITIES TO SUBSEQUENT HOLDERS. Neither this Agreement nor any
disposition of any of the Notes shall be deemed to create any liability or
obligation on your part to enforce any provision hereof or of any of the Notes
for the benefit or on behalf of any other Person who may be the holder of any
such Note.
18. TAXES, ETC. The Company will pay all taxes, recording and filing fees,
transfer and documentary stamp and similar taxes (including interest and
penalties) which may be payable in respect of the execution and delivery of this
Agreement and each of the other Operative Documents, the consummation of the
transactions contemplated hereby and thereby and in respect of any amendment of
or waiver under or with respect hereto and thereto, except that the Company
shall not be required hereby to pay any income taxes imposed on any holder of
any Notes; the Company will save you and all subsequent holders of the Notes
harmless against any loss or liability resulting from non-payment or delay in
payment thereof. The obligations of the Company under this Section 18 shall
survive the payment of the Notes and the termination of this Agreement and the
other Operative Documents.
19. COMMUNICATIONS. All communications provided for herein shall be delivered or
mailed addressed as follows:
(a) If to the Company, to it at the following address:
199 Riverneck, LLC
199 Riverneck Road
Chelmsford, MA 01824
with a copy to
Hutchins, Wheeler & Dittmar
a professional corporation
101 Federal Street
Boston, MA 02110
Attn: Anthony Medaglia, Esq.
(b) If to you, to you at the address set forth in the
SCHEDULE I attached hereto;
with a copy to
Choate, Hall & Stewart
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Exchange Place
53 State Street
Boston, MA 02109
Attn: Frank B. Porter, Jr., Esq.
(c) If to any other Person who is a holder of any Note, at the
address furnished by such Person to the Company.
The address of any Person referred to above may be changed at any time
and from time to time and shall in each case be the most recent such address
furnished in writing by such Person to the other Persons referred to above. Any
communication provided for herein shall become effective only upon and at the
time of receipt by the Person to whom it is given, unless such communication is
mailed by certified mail, in which case it shall be deemed to have been received
on (x) the fifth business day following the mailing thereof, or (y) the day of
its receipt, if a business day, or the next succeeding business day, whichever
of (x) or (y) is earlier.
Reference is made to the other Operative Documents for communications
provided for therein.
20. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES, ETC. All agreements,
representations and warranties contained herein or made in writing by or on
behalf of the Company in connection with the transactions contemplated hereby
shall survive the execution and delivery of this Agreement and the other
Operative Documents, the issue, sale and delivery of the Notes and payment
therefor, any disposition thereof by you, and any investigation at any time made
by you or on your behalf. All statements contained in any report, memorandum,
data or certificate delivered to you by or on behalf of the Company in
connection with the transactions contemplated hereby or pursuant hereto shall
constitute representations and warranties by the Company under this Agreement
and shall be subject to the terms of this Section 20.
21. RECORDING FEES. The Company will pay all fees (including interest and
penalties) including, without limitation, all recording and filing fees, any
mortgage taxes, and similar fees, which may be payable in respect of the
execution and delivery of this Agreement and each of the other Operative
Documents.
22. SUCCESSORS AND ASSIGNS; RIGHTS OF OTHER HOLDERS. This Agreement and the
other Operative Documents shall bind and inure to the benefit of and be
enforceable by the Company and you, successors to the Company and your
successors and assigns, and, in addition, shall inure to the benefit of and be
enforceable by each holder from time to time of any Notes who, upon acceptance
of such Notes, shall be entitled to enforce the provisions and enjoy the
benefits hereof and thereof. The Company may not assign any of its rights or
obligations hereunder or under any of the other Operative Documents without the
written consent of the holders of the Notes.
23. PURCHASE FOR INVESTMENT. You represent and warrant (a) that you have been
furnished with all information that you have requested from the Company for the
purpose of evaluating your proposed acquisition of the Notes, (b) that you will
acquire the Notes to be purchased by you for your own account and not with a
view to or for sale in connection with any distribution in any manner that would
violate applicable securities laws, but without prejudice to your rights to
dispose of the Notes to be purchased by you or a portion thereof to a transferee
or transferees, in accordance with such laws if at some future time you deem it
advisable to do so. The acquisition of the Notes by you at the Closing shall
constitute your confirmation of the foregoing representations and warranties.
You understand that the Notes are being sold to you in a transaction which is
exempt from the registration requirements of the Securities Act of 1933, as
amended.
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24. DISCHARGE; REINSTATEMENT. If the Company shall pay in full the Notes or
cause them to be paid in full, or if the Notes shall otherwise have been paid in
full, then this Agreement and the other Operative Documents and the rights
hereby granted shall cease, terminate and be void (except as set forth in
Sections 12 and 18). Notwithstanding the provisions of this Section 24 or any
provision to the contrary contained in any of the other Operative Documents,
each of the Operative Documents shall continue to be effective or be reinstated,
as the case may be, if at any time any amount received by any holder of Notes in
respect thereof is rescinded or must otherwise be restored or returned by such
holder upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of or upon the appointment of any intervenor or conservator of,
or trustee or similar official for, the Company or any other Person or any
substantial part of their respective properties, or otherwise, all as though
such payments have not been made.
25. WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE HOLDERS OF THE NOTES FROM
TIME TO TIME IRREVOCABLY WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY COURT,
ACTION OR OTHER PROCEEDING INSTITUTED BY OR AGAINST THE COMPANY IN RESPECT OF
ITS OBLIGATIONS HEREUNDER OR UNDER ANY OF THE OTHER OPERATIVE DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY AND/OR THEREBY.
26. RERECORDING, ETC. The Company agrees to cooperate with the holders of the
Notes in rerecording and refiling the Mortgage and the Assignment, and any
notice of lease and the Tenant Agreement, and in causing continuation statements
with respect to any related financing statements to be filed whenever and
wherever necessary in order to preserve and protect the lien of the Mortgage and
the validity of the Lease, the Assignment and the Tenant Agreement.
27. MISCELLANEOUS. Each of the Operative Documents and (unless otherwise
provided) all amendments thereof, supplements thereto and waivers and consents
thereunder shall be governed by the laws of The Commonwealth of Massachusetts.
The headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof. This Agreement, together with the
other Operative Documents, embodies the entire agreement and understanding
between you and the Company and supersedes all prior agreements and
understandings relating to the subject matter hereof. In case any provision in
this Agreement or any of the other Operative Documents shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. This Agreement
may be executed in any number of counterparts and separate counterparts, all of
which together shall constitute one and the same instrument.
28. EXECUTION OF TRUST INDENTURE AND AMENDMENTS.
The transaction contemplated by this Agreement has been structured with
you and your Affiliates holding all of the Notes. This has been done to
accommodate the Company so that the Company might incur lower transaction costs
for closing the transaction. In the event that you decide to use a collateral
trustee in the future, within ten (10) Business Days of your written request,
the Company shall execute a trust indenture among you and any other holders of
Notes, the Company and a collateral trustee, selected by you, and such
amendments to the Operative Documents as you may request, all in substance and
form satisfactory to you, to implement a revised structure using a collateral
trustee. Without limiting section 12 hereof, whether or not the transaction
using the trust indenture shall be consummated, the Company shall pay (i) the
costs and expenses of preparing such trust indenture and the amendments to all
of the Operative Documents and any other documents and instruments in connection
therewith, (ii) the costs of obtaining any necessary private placement
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30
numbers for the Notes from Standard and Poor's Corporation, (iii) the fees,
expenses, and disbursements of you, your special counsel and other counsel
obtained by you or the Company in connection with such a transaction, (iv) the
cost of all reporting fees, filing fees, and fees and expenses and other costs
related thereto, and (v) all expenses incurred by you, any such collateral
trustee and any other holder of the Notes in connection with such a transaction.
[End of Page.]
Signature Page of Note Purchase Agreement with 199 Riverneck, LLC.
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterparts of this letter, whereupon this letter
shall become a binding agreement between you and the Company.
Please then return one of such counterparts to the Company.
Very truly yours,
199 RIVERNECK, LLC
By: Mercury Computer Systems, Inc.
its managing member
By: /s/ G. Mead Wyman /s/
--------------------------------
Name: G. Mead Wyman
Title: Senior Vice President and
Treasurer
The foregoing Agreement is hereby
agreed to as of the date thereof.
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Richard C. Morrison /s/
--------------------------------
Title: Managing Director
--------------------------------
-29-
31
Signature Page of Note Purchase Agreement with 199 Riverneck, LLC.
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterparts of this letter, whereupon this letter
shall become a binding agreement between you and the Company.
Please then return one of such counterparts to the Company.
Very truly yours,
199 RIVERNECK, LLC
By: Mercury Computer Systems, Inc.
its managing member
By: /s/ G. MEAD WYMAN /s/
-------------------------------
Name: G. Mead Wyman
Title: Senior Vice President and
Treasurer
The foregoing Agreement is hereby
agreed to as of the date thereof.
C.M. LIFE INSURANCE COMPANY
By: /s/ Richard C. Morrison /s/
--------------------------------
Title: Managing Director
--------------------------------