AGREEMENT PURSUANT TO SECTION 2.12 OR 2.13.
EACH LENDER FURTHER
AGREES THAT IT WILL USE REASONABLE EFFORTS NOT MATERIALLY DISADVANTAGEOUS TO IT
(IN ITS REASONABLE DETERMINATION) IN ORDER TO AVOID OR MINIMIZE, AS THE CASE MAY
BE, THE PAYMENT BY THE BORROWER OF ANY ADDITIONAL AMOUNTS PURSUANT TO
SECTION 2.12 OR 2.13.
EACH LENDER REPRESENTS, TO THE BEST OF ITS KNOWLEDGE,
THAT AS OF THE RESTATEMENT EFFECTIVE DATE NO SUCH AMOUNTS ARE PAYABLE TO IT.
(B)
BORROWER SHALL NOT BE LIABLE TO ANY LENDER FOR ANY PAYMENTS UNDER
SECTION 2.12 OR 2.13 ARISING TO THE EXTENT OF SUCH LENDER'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OR BREACH OF ANY LAWS (OTHER THAN AS A RESULT OF BORROWER'S
BREACH), OR FOR AMOUNTS WHICH WERE INCURRED MORE THAN NINETY (90) DAYS PRIOR TO
THE DATE BORROWER ARE NOTIFIED OF THE INCURRENCE OF SUCH AMOUNT.
SECTION 2.15.
GUARANTY AGREEMENT.
AS ADDITIONAL SECURITY FOR THE DUE
AND PUNCTUAL PAYMENT AND PERFORMANCE OF THE CREDIT FACILITY AND EACH OF THE
TERMS, COVENANTS, REPRESENTATIONS, WARRANTIES AND PROVISIONS HEREIN CONTAINED
AND CONTAINED IN EACH OF THE LOAN DOCUMENTS, ON OR BEFORE THE RESTATEMENT
EFFECTIVE DATE MCRI SHALL EXECUTE THE GUARANTY IN THE FORM OF EXHIBIT I AFFIXED
HERETO.
ARTICLE III
CONDITIONS PRECEDENT TO THE RESTATEMENT EFFECTIVE DATE
A.
Closing Conditions.
The obligation of each of the Banks to fund the
Closing Disbursements under the Credit Facility is subject to the following
conditions precedent, each of which shall be satisfied on or before January 23,
2009 (unless all of the Banks, in their sole and absolute discretion, shall
agree otherwise).
The occurrence
60
of the Restatement Effective Date is subject to and contingent upon Agent Bank
having received, in each case in form and substance reasonably satisfactory to
Agent Bank, or in the case of an occurrence, action or event, the occurrence of,
each of the following:
SECTION 3.01.
CREDIT AGREEMENT.
EXECUTED COUNTERPARTS OF THIS CREDIT
AGREEMENT IN SUFFICIENT DUPLICATE ORIGINALS FOR BORROWER AND EACH OF THE BANKS.
SECTION 3.02.
THE NOTES AND GUARANTY.
(A)
THE REVOLVING CREDIT NOTE (INCLUDING EACH
REPLACEMENT NOTE AS MAY BE REQUESTED UNDER SECTION 2.05(I)) DULY EXECUTED BY THE
BORROWER, PAYABLE TO THE ORDER OF AGENT BANK, ON BEHALF OF THE LENDERS.
(B)
THE SWINGLINE NOTE DULY EXECUTED BY THE BORROWER,
PAYABLE TO THE ORDER OF SWINGLINE LENDER.
(C)
THE GUARANTY DULY EXECUTED BY MCRI IN FAVOR OF
AGENT BANK, ON BEHALF OF THE LENDERS.
SECTION 3.03.
SECURITY DOCUMENTATION.
THE SECURITY DOCUMENTATION DULY
EXECUTED BY BORROWER OR OTHER APPLICABLE PARTY THERETO, CONSISTING OF THE
FOLLOWING:
(A)
FIRST AMENDMENT TO DEED OF TRUST;
(B)
THE UCC AMENDMENT STATEMENTS FOR EACH OF THE
FINANCING STATEMENTS;
(C)
FIRST AMENDMENT TO ASSIGNMENT OF ENTITLEMENTS,
CONTRACTS, RENTS AND REVENUES; AND
(D)
FIRST AMENDMENT TO TRADEMARK SECURITY
AGREEMENT.
SECTION 3.04.
OTHER LOAN DOCUMENTS.
THE FOLLOWING LOAN DOCUMENTS DULY
EXECUTED BY BORROWER AND EACH OTHER APPLICABLE PARTY THERETO CONSISTING OF THE
FOLLOWING:
(A)
ENVIRONMENTAL CERTIFICATE.
(B)
CASH COLLATERAL PLEDGE AGREEMENT.
(C)
CC SKYBRIDGE ESTOPPEL.
SECTION 3.05.
ARTICLES OF INCORPORATION, BYLAWS, CORPORATE