Exhibit
10.120
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TERM
LOAN AGREEMENT
among
MACK-CALI
REALTY, L.P.
and
JPMORGAN
CHASE BANK, N.A.
and
OTHER
LENDERS WHICH MAY BECOME
PARTIES
TO THIS AGREEMENT
with
JPMORGAN
CHASE BANK, N.A.,
AS
ADMINISTRATIVE AGENT
and
and
J.P. MORGAN SECURITIES INC.,
AS
ARRANGER
Dated
as of November 29, 2006
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TABLE
OF CONTENTS
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§1.
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DEFINITIONS
AND RULES OF INTERPRETATION
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§1.2. Rules
of
Interpretation
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§2.
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THE
TERM LOAN FACILITY
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§2.4. Interest
on Loans; Fees
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§2.8. Repayment
of Loans Maturity
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§2.9. Optional
Repayments of Loans
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§2.10. Mandatory
Prepayments
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§2.11. Reduction
of
Total Commitment
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§3.
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[RESERVED]
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§4.
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CERTAIN
GENERAL PROVISIONS
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§4.2. Computations
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§4.3. Inability
to Determine LIBOR Rate
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§4.5. Additional
Costs, Etc.
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§4.9. Interest
During Event of Default
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§4.10. Reasonable
Efforts to Mitigate
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§4.11. Replacement
of
Lenders
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§5.
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GUARANTIES
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§5.2. Subsidiary
Guaranty Proceeds
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§6.
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REPRESENTATIONS
AND WARRANTIES
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§6.1. Authority;
Etc.
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§6.2. Governmental
Approvals
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§6.3. Title
to
Properties; Leases
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§6.4. Financial
Statements
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§6.6. Franchises,
Patents, Copyrights, Etc.
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§6.8. No
Materially Adverse Contracts, Etc.
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§6.9. Compliance
With Other Instruments, Laws, Etc
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§6.11. No
Event of Default; No Materially Adverse Changes
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§6.12. Investment
Company Acts; Public Utility Holding Company Act
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§6.13. Absence
of UCC
Financing Statements, Etc.
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§6.15. Certain
Transactions
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§6.16. Employee
Benefit Plans
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§6.17. Regulations
U
and X
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§6.18. Environmental
Compliance
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§6.22. Subsequent
Guarantors
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§7.
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AFFIRMATIVE
COVENANTS OF THE BORROWER AND
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THE
GUARANTORS
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§7.2. Maintenance
of Office
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§7.3. Records
and Accounts
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§7.4. Financial
Statements, Certificates and Information
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§7.6. Existence
of Borrower and Subsidiary Guarantors;
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Maintenance
of
Properties
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§7.7. Existence
of MCRC; Maintenance of REIT Status of
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MCRC;
Maintenance of Properties
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§7.10. Inspection
of
Properties and Books
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§7.11. Compliance
with Laws, Contracts, Licenses,
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and
Permit
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§7.13. Additional
Guarantors; Solvency of Guarantors
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§7.14. Further
Assurances
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§7.15. Environmental
Indemnification
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§7.16. Response
Actions
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§7.17.
Environmental
Assessments
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§7.18. Employee
Benefit Plans
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§7.19. No
Amendments
to Certain Documents
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§7.20. Distributions
in the Ordinary Course
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§8.
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CERTAIN
NEGATIVE COVENANTS OF THE BORROWER
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AND
THE GUARANTORS
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§8.1. Restrictions
on
Indebtedness
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§8.2. Restrictions
on
Liens, Etc.
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§8.3. Merger,
Consolidation and Disposition of Assets
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§8.4. Negative
Pledge
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§8.5. Compliance
with
Environmental Laws
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§8.6. Distributions
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§8.7. Employee
Benefit Plans
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§8.8. Fiscal
Year
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§9.
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FINANCIAL
COVENANTS OF THE BORROWER
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§9.1. Leverage
Ratio
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§9.2. Secured
Indebtedness
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§9.3. Tangible
Net
Worth
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§9.4. Interest
Coverage
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§9.5. Fixed
Charge Coverage
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§9.6. Unsecured
Indebtedness
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§9.7. Unencumbered
Property Interest Coverage
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§9.8. Investment
Limitation
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§9.9. Covenant
Calculations
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§10
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CONDITIONS
TO THE CLOSING DATE
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§10.1. Loan
Documents
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§10.2. Certified
Copies of Organization Documents
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§10.3. By-laws;
Resolutions
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§10.4. Incumbency
Certificate; Authorized Signers
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§10.5. Certificates
of
Insurance
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§10.6. Opinion
of Counsel Concerning Organization and
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Loan
Documents
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§10.7. Tax
Law
Compliance
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§10.8. Certifications
from Government Officials
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§10.9. Proceedings
and
Documents
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§10.10. Fees
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§10.11. Closing
Certificate; Compliance Certificate
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§10.12. Subsequent
Guarantors
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§10.13. No
Default
Under Revolving Credit Agreement.
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§11.
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CONDITIONS
TO ALL BORROWINGS
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§11.1. Representations
True;
No Event of Default;
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Compliance
Certificate
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§11.2. No
Legal Impediment
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§11.3. Governmental
Regulation
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EVENTS
OF DEFAULT; ACCELERATION; ETC.
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§12.1. Events
of Default and Acceleration
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§12.2. Termination
of
Commitment
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§12.3. Remedies
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§13.
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SETOFF
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§14.
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THE
ADMINISTRATIVE AGENT
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§14.1. Authorization
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§14.2. Employees
and
Agents
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§14.3. No
Liability
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§14.4. No
Representations
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§14.5. Payments
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§14.6. Holders
of Notes
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§14.7. Indemnity
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§14.8. Administrative
Agent as Lender
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§14.9. Notification
of
Defaults and Events of Default
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§14.10. Duties
in the
Case of Enforcement
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§14.11. Successor
Administrative Agent
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§14.12. Notices
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§15.
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EXPENSES
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§16.
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INDEMNIFICATION
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§17.
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SURVIVAL
OF COVENANTS, ETC.
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§18.
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ASSIGNMENT;
PARTICIPATIONS; ETC.
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§18.1. Conditions
to
Assignments by Lenders
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§18.2. Certain
Representations and Warranties;
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Limitations;
Covenants
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§18.3. Register
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§18.4. New
Notes
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§18.5. Participations
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§18.6. Pledge
by Lender
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§18.7. Successors
and
Assigns; No Assignment by Borrower
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§18.8. Disclosure
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§19.
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NOTICES,
ETC.
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§20.
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GOVERNING
LAW; CONSENT TO JURISDICTION
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AND
SERVICE
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§21.
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HEADINGS
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§22.
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COUNTERPARTS
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§23.
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ENTIRE
AGREEMENT, ETC.
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§24.
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WAIVER
OF JURY TRIAL AND CERTAIN
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DAMAGE
CLAIMS
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§25.
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CONSENTS,
AMENDMENTS, WAIVERS, ETC.
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§26.
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SEVERABILITY
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§27.
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[RESERVED]
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§28.
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USA
PATRIOT ACT
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§29.
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USURY
SAVINGS CLAUSE
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EXHIBITS
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A
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Form
of Term Loan Note
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B
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Form
of Subsidiary Guaranty
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C
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Form
of Loan Request
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D
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Form
of Compliance Certificate
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E
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Form
of Closing Certificate
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F
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Form
of Assignment and Assumption Agreement
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G
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Form
of Notice of Continuation/Conversion
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H
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Form
of Leverage Ratio Certificate
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SCHEDULES
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SCHEDULE
CBD
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List
of CBD Properties
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SCHEDULE
EMPL
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List
of Employee Agreements with Key Management Individuals
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SCHEDULE
EG
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List
of Eligible Ground Leases as of Closing Date
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SCHEDULE
SG
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List
of Subsidiary Guarantors
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SCHEDULE
1.2
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Lenders’
Commitments
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SCHEDULE
6.1(b)
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Capitalization;
Outstanding Securities, Etc.
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SCHEDULE
6.3(a)
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Unencumbered
Properties
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SCHEDULE
6.3(c)
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Partially
Owned Real Estate Holding Entities
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SCHEDULE
6.7
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Litigation
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SCHEDULE
6.15
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Certain
Transactions
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SCHEDULE
6.18
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Environmental
Compliance
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SCHEDULE
6.19
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Subsidiaries
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TERM
LOAN AGREEMENT
This
TERM
LOAN AGREEMENT (this “Agreement”)
is
made as of the 29th day of November, 2006, by and among MACK-CALI REALTY, L.P.,
a Delaware limited partnership (“MCRLP”
or
the
“Borrower”),
having its principal place of business at 11 Commerce Drive, Cranford, New
Jersey 07016, JPMORGAN CHASE BANK, N.A. (formerly known as JPMorgan Chase Bank)
(“JPMorgan”),
having its principal place of business at 270 Park Avenue, New York, New York
10017, and the other lending institutions party hereto or which may become
parties hereto pursuant to §18 (individually, a “Lender”
and
collectively, the “Lenders”)
and
JPMORGAN CHASE BANK, N.A., as the administrative agent for itself and each
other
Lender.
RECITALS
A. The
Borrower and its Subsidiaries are primarily engaged in the business of owning,
purchasing, developing, constructing, renovating and operating office,
office/flex, industrial/warehouse and multifamily residential properties in
the
United States.
B. Mack-Cali
Realty Corporation, a Maryland corporation (“MCRC”),
is
the sole general partner of MCRLP, holds in excess of 88% of the partnership
interests in MCRLP as of the date hereof, is qualified to elect REIT status
for
income tax purposes, and has agreed to guaranty the obligations of the Borrower
hereunder.
C. Those
Subsidiaries of the Borrower which are the owners of Unencumbered Property
have
also agreed to guaranty the obligations of the Borrower hereunder.
D. The
Borrower has requested that the Lenders make a $350 million term loan to the
Borrower, and the Lenders are willing to make such term loan to the Borrower
on
the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
§1. DEFINITIONS
AND RULES OF INTERPRETATION.
§1.1. Definitions.
The
following terms shall have the meanings set forth in this §1 or elsewhere in the
provisions of this Agreement referred to below:
Accountants.
In each
case, nationally-recognized, independent certified public accountants reasonably
acceptable to the Administrative Agent. The Lenders hereby acknowledge that
PricewaterhouseCoopers LLP and the other major national accounting firms are
acceptable accountants.
Acquisition
Property.
Any
Real Estate that has been owned for fewer than six (6) fiscal quarters, unless
the Borrower has made a one-time election to no longer treat such Real Estate
as
an Acquisition Property for purposes of this Agreement.
Additional
Funding Date.
The
date, on or after the Closing Date, and on which any Additional Term Loan is
requested by the Borrower and made by the Lenders to the Borrower.
Additional
Term Loan.
See
§2.1.
Adjusted
Unencumbered Property NOI.
With
respect to any fiscal period for any Unencumbered Property, the net income
of
such Unencumbered Property during such period, as determined in accordance
with
GAAP, before adjustment for (a) gains (or losses) from debt restructurings,
non-cash valuation charges or extraordinary items relating to such Unencumbered
Property, (b) minority interests, not inconsistent with the wholly-owned
Subsidiary requirements for Unencumbered Properties and (c) income taxes;
plus
(x)
interest expense relating to such Unencumbered Property and (y) depreciation
and
amortization relating to such Unencumbered Property and (z) the noncash portion
of executive stock award rights and stock purchase rights relating to the
Unencumbered Property in question included in written executive employment
agreements, written employee plans or other written non-monetary employment
compensation provisions to the extent excluded from net income, as determined
in
accordance with GAAP; minus
a
recurring capital expense reserve equal to one and one-half percent (1.5%)
of
total revenue (excluding interest income) of such Unencumbered Property for
such
period, after adjustments to eliminate the effect of the straight-lining of
rents affecting such Unencumbered Property.
Administrative
Agent.
JPMorgan acting as administrative agent for the Lenders, or any successor
administrative agent, as permitted by §14.
Administrative
Agent’s
Head Office.
The
Administrative Agent’s head office located at 270 Park Avenue, New York, New
York 10017, or at such other location as the Administrative Agent may designate
from time to time pursuant to §19 hereof, or the office of any successor
Administrative Agent permitted under §14 hereof.
Affiliate.
With
reference to any Person, (i) any director or executive officer of that Person,
(ii) any other Person controlling, controlled by or under direct or indirect
common control of that Person, (iii) any other Person directly or indirectly
holding 10% or more of any class of the capital stock or other equity interests
(including options, warrants, convertible securities and similar rights) of
that
Person (other than a mutual fund which owns 10% or more of the common stock
of
MCRC) and (iv) any other Person 10% or more of any class of whose capital stock
or other equity interests (including options, warrants, convertible securities
and similar rights) is held directly or indirectly by that Person.
Agreement.
This
Term Loan Agreement, including the schedules and exhibits hereto, as the same
may be from time to time amended and in effect.
Alternate
Base Rate.
The
higher of (a) the annual rate of interest announced from time to time by the
Administrative Agent at its head office in New York, New York as its “prime
rate” or (b) one half of one percent (1/2%) above the overnight federal funds
effective rate as published by the Board of Governors of the Federal Reserve
System, as in effect from time to time. Any change in the Alternate Base Rate
during an Interest Period shall result in a corresponding change on the same
day
in the rate of interest accruing from and after such day on the unpaid balance
of principal of the Alternate Base Rate Loans, if any, applicable to such
Interest Period, effective on the day of such change in the Alternate Base
Rate.
Alternate
Base Rate Loans.
Those
Loans bearing interest calculated by reference to the Alternate Base
Rate.
Applicable
Margin.
The
applicable margin (if any) over the then Alternate Base Rate or LIBOR Rate,
as
applicable to the Loan(s) in question, as set forth below, which is used in
calculating the interest rate applicable to Loans and which shall vary from
time
to time in accordance with MCRLP’s debt ratings, if any. The Applicable Margin
to be used in calculating the interest rate applicable to Alternate Base Rate
Loans or LIBOR Rate Loans shall vary from time to time in accordance with
MCRLP’s then applicable (if any) (x) Moody’s debt rating, (y) S&P’s debt
rating and (z) any Third Debt Rating, as set forth below in this definition,
and
the Applicable Margin shall be adjusted effective on the next Business Day
following any change in MCRLP’s Moody’s debt rating or S&P’s debt rating or
Third Debt Rating, as the case may be. MCRLP shall notify the Administrative
Agent in writing promptly after becoming aware of any change in any of its
debt
ratings. In order to qualify for an Applicable Margin based upon a debt rating,
MCRLP shall maintain debt ratings from at least two (2) nationally recognized
rating agencies reasonably acceptable to the Administrative Agent, one of which
must be Moody’s or S&P so long as such Persons are in the business of
providing debt ratings for the REIT industry; provided that
if
MCRLP fails to maintain at least two debt ratings, the Applicable Margin shall
be based upon an S&P rating of less than BBB- in the table below. In
addition, MCRLP may, at its option, obtain and maintain three debt ratings
(of
which one must be from Moody’s or S&P except as set forth in the previous
sentence). If at any time of determination of the Applicable Margin, (a) MCRLP
has then current debt ratings from two (2) rating agencies, then the Applicable
Margin shall be based on the lower of such ratings, or (b) MCRLP has then
current debt ratings from three (3) rating agencies, then the Applicable Margin
shall be based on the lower of the two highest ratings.
The
applicable debt ratings and the Applicable Margins are set forth in the
following table:
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S&P
Rating
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Moody’s
Rating
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Third
Rating
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Applicable
Margin
for
LIBOR Rate Loans
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Applicable
Margin
for
Alternate Base Rate Loans
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No
rating or less than BBB-
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No
rating or less than Baa3
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No
rating or less than BBB-/Baa3 equivalent
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1.125%
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0%
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BBB-
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Baa3
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BBB-/Baa3
equivalent
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0.800%
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0%
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BBB
|
Baa2
|
BBB/Baa2
equivalent
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0.650%
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0%
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BBB+
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Baa1
|
BBB+/Baa1
equivalent
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0.550%
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0%
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A-
or higher
|
A3
or higher
|
A-/A3
equivalent
or
higher
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0.500%
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0%
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Arranger.
J.P.
Morgan Securities Inc..
Assignment
and Assumption.
See
§18.1.
Borrower.
As
defined in the preamble hereto.
Building.
Individually and collectively, the buildings, structures and improvements now
or
hereafter located on the Real Estate.
Business
Day.
Any day
on which banking institutions in New York, New York are open for the transaction
of banking business and, in the case of LIBOR Rate Loans, also a day which
is a
LIBOR Business Day.
Capitalized
Leases.
Leases
under which the Borrower or any of its Subsidiaries or any Partially-Owned
Entity is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet
of
the lessee or obligor in accordance with GAAP.
Capitalized
Unencumbered Property NOI.
As of
any date of determination with respect to an Unencumbered Property (other than
an Acquisition Property), an amount equal to the Revised Adjusted Unencumbered
Property NOI for such Unencumbered Property for the most recent two (2) complete
fiscal quarters multiplied
by
two (2),
with the product being divided
by
8.25%,
except with respect to CBD Properties, which shall be divided
by
7.75%;
provided
that if
such Unencumbered Property has been owned for fewer than two
(2)
complete
fiscal quarters, the Revised Adjusted Unencumbered Property NOI for such
Unencumbered Property shall be calculated by using the actual results for the
period that such Unencumbered Property has been owned and adjusting such results
for a period of two (2) complete fiscal quarters.
CBD
Property(ies).
Collectively, (a) any Real Estate listed on Schedule
CBD
attached
hereto, (b) any improved Real Estate which is located in the borough of
Manhattan in New York, New York, Jersey City, New Jersey, Washington, D.C.,
or
San Francisco, California acquired after July 14, 2006, and (c) any other
improved Real Estate which is located in markets with characteristics similar
to
those identified in clause (b) and is designated by the Administrative Agent
and
the Borrower as a CBD Property from time to time.
CERCLA.
See
§6.18.
Closing
Date.
November 29, 2006, which is the date on which all of the conditions set forth
in
§10 have been satisfied.
Code.
The
Internal Revenue Code of 1986, as amended and in effect from time to
time.
Commitment.
With
respect to each Lender, the amount set forth from time to time on Schedule
1.2
hereto
as the amount of such Lender’s Commitment to make the Term Loan to the
Borrower.
Commitment
Percentage.
With
respect to each Lender, the percentage set forth on Schedule
1.2
hereto
as such Lender’s percentage of the Total Commitment and any changes thereto from
time to time.
Completed
Loan Request.
A loan
request accompanied by all information required to be supplied under the
applicable provisions of §2.5.
Consolidated
or consolidated.
With
reference to any term defined herein, shall mean that term as applied to the
accounts of MCRC and its subsidiaries (including the Borrower and the Subsidiary
Guarantors) or MCRLP and its subsidiaries, as the case may be, consolidated
in
accordance with GAAP, excluding the effects of consolidation of investments
in
non-wholly owned subsidiaries under Interpretation No. 46 of the Financial
Accounting Standards Board.
Consolidated
Adjusted Net Income.
For any
period, an amount equal to the consolidated net income of MCRC, the Borrower
and
their respective Subsidiaries for such period, as determined in accordance
with
GAAP, before (a) gains (or losses) from the sale of real property or interests
therein, debt restructurings, non-cash valuation charges and other extraordinary
items, (b) minority interest of said Persons in other Persons and (c) income
taxes; plus
(w)
interest expense, (x) depreciation and amortization, (y) the noncash
portion
of
executive stock award rights and stock purchase rights included in written
executive employment agreements, written employee plans or other written
non-monetary employment compensation provisions, and (z) certain non-recurring
cash payments made pursuant to certain written employment agreements, written
employee plans or other written employment compensation provisions with key
management individuals existing as of the date hereof and described on
Schedule
EMPL
hereto
and their successors (as such agreements, plans and provisions may be amended
from time to time) in an amount not to exceed $20,000,000 in the aggregate
during any fiscal year; minus
a
recurring capital expense reserve in an amount equal to one and one-half percent
(1.5%) of consolidated total revenue (excluding interest income) of MCRC, the
Borrower and their respective Subsidiaries; all after adjustments to eliminate
the effect of the straight-lining of rents; and all after adjustments for
unconsolidated partnerships, joint ventures and other entities.
Consolidated
Capitalized NOI.
As of
any date of determination, an amount equal to Revised Consolidated Adjusted
Net
Income for the most recent two (2) completed fiscal quarters multiplied
by
two (2),
with the product being divided
by
8.25%,
except with respect to CBD Properties, which shall be divided
by
7.75%;
provided
that if
any Real Estate has been owned for fewer than two (2) complete fiscal quarters,
the Revised Consolidated Adjusted Net Income for such Real Estate shall be
calculated by using the actual results for the period that such Real Estate
has
been owned and adjusting such results for a period of two (2) complete fiscal
quarters.
Consolidated
Fixed
Charges.
For any
fiscal period, the sum of (a) Consolidated Total Interest Expense, plus
(b) the
aggregate amount of all scheduled principal payments on all Indebtedness of
MCRC, the Borrower and their respective Subsidiaries required to be made during
such period, excluding optional prepayments and balloon principal payments
due
at maturity, plus
(c) the
aggregate of all Distributions payable on the preferred stock of or other
preferred beneficial interests in the Borrower, MCRC or any of their respective
Subsidiaries during such period.
Consolidated
Secured Indebtedness.
As of
any date of determination, the aggregate principal amount of all Indebtedness
of
MCRC, the Borrower and their respective Subsidiaries outstanding at such date
secured by a Lien on the Real Estate of such Person, without regard to
Recourse.
Consolidated
Tangible Net Worth.
As
of any
date of determination, the Consolidated Total Capitalization minus
Consolidated Total Liabilities.
Consolidated
Total Capitalization.
As of
any date of determination, with respect to MCRC, the Borrower and their
respective Subsidiaries determined on a consolidated basis in accordance with
GAAP, the sum (without double-counting) of (a) Consolidated Capitalized NOI
(other than with respect to (1) Acquisition Properties and (2) Real Estate
with
a negative Consolidated Capitalized NOI), plus
(b) the
cost of all Acquisition Properties, plus
(c) the
value of Unrestricted Cash and Cash Equivalents (excluding until forfeited
or
otherwise entitled to be retained by the Borrower or its Subsidiaries, tenant
security and
other
restricted deposits), plus
(d) the
aggregate costs incurred and paid to date by the Borrower and its Subsidiaries
with respect to Construction-In-Process, plus
(e) the
value of Indebtedness of third parties to the Borrower and its Subsidiaries
for
borrowed money which is secured by mortgage liens on real estate (valued in
accordance with GAAP at the book value of such Indebtedness and not then more
than 90 days past due or declared by the Borrower or its relevant Subsidiary
to
be past due), plus
(f) the
actual net cash investment by the Borrower and its Subsidiaries in any Other
Investments or Newco Investment (wherein such any Other Investment or Newco
Investment (x) does not have any Indebtedness that is then more than 90 days
past due or (y) has not been declared to be in default of any monetary or
material monetizable obligations), plus
(g) the
book value of Unimproved Non-Income Producing Land plus
(h) the
value of Eligible Cash 1031 Proceeds; provided
that the
value of all permitted investments included within Consolidated Total
Capitalization (other than Eligible Cash 1031 Proceeds) shall not exceed the
limitations set forth in §9.8 hereof.
Consolidated
Total
Interest Expense.
For any
fiscal period, the aggregate amount of interest required in accordance with
GAAP
to be paid or accrued, without double-counting, by MCRC, the Borrower and their
respective Subsidiaries during such period on all Indebtedness of MCRC, the
Borrower and their respective Subsidiaries outstanding during all or any portion
of such period, whether such interest was or is required to be reflected as
an
item of expense or capitalized, including payments consisting of interest
expenses in respect of any Synthetic Lease.
Consolidated
Total Liabilities.
As of
any date of determination, without double-counting, all liabilities of MCRC,
the
Borrower and their respective Subsidiaries, including guaranties of payment
for
any Other Investment or Newco Investment, determined on a consolidated basis
in
accordance with GAAP and classified as such on the consolidated balance sheet
of
MCRC, the Borrower and their respective Subsidiaries, and all Indebtedness
of
MCRC, the Borrower and their respective Subsidiaries, whether or not so
classified (excluding, to the extent otherwise included in Consolidated Total
Liabilities, restricted cash held on account of tenant security and other
restricted deposits).
Consolidated
Total Unsecured Interest Expense.
For any
fiscal period, Consolidated Total Interest Expense with respect to Consolidated
Unsecured Indebtedness only for such period.
Consolidated
Unsecured Indebtedness.
As of
any date of determination, the aggregate principal amount of all Unsecured
Indebtedness of MCRC, the Borrower and their respective Subsidiaries outstanding
at such date, including without limitation the aggregate principal amount of
all
the Obligations under this Agreement as of such date, determined on a
consolidated basis in accordance with GAAP, without regard to
Recourse.
Construction-In-Process.
Any
Real Estate for which the Borrower, any Guarantor, any of the Borrower’s
Subsidiaries or any Partially-Owned Entity is actively pursuing construction,
renovation, or expansion of Buildings and, except for purposes of the covenant
set forth in §9.8(c) hereof, for which construction is proceeding to completion
without undue
delay
from Permit denial, construction delays or otherwise, all pursuant to such
Person’s ordinary course of business. Notwithstanding the foregoing, tenant
improvements to previously constructed and/or leased Real Estate shall not
be
considered Construction-In-Process.
Conversion
Request.
A
notice given by the Borrower to the Administrative Agent of its election to
convert or continue a Loan in accordance with §2.6.
Credit
Parties.
Collectively, the Borrower, the Operating Subsidiaries, MCRC, the Subsidiary
Guarantors and any other wholly-owned Subsidiary for which the Borrower or
MCRC
has legal liability for such wholly-owned Subsidiary’s obligations and
liabilities, directly or indirectly.
debt
ratings.
Long-term, unsecured, non-credit enhanced debt ratings.
Default.
As of
the relevant time of determination, an event or occurrence which solely with
the
giving of notice or the lapse of time, or both, would constitute an Event of
Default.
Delinquent
Lender.
See
§14.5.
Disqualifying
Environmental Event.
Any
Release or threatened Release of Hazardous Substances, any violation of
Environmental Laws or any other similar environmental event with respect to
any
Real Estate that is reasonably likely to have a material adverse effect on
the
value of such Real Estate.
Distribution.
(i) with
respect to the Borrower or its Subsidiaries, any dividend or distribution of
cash or other cash equivalent, directly or indirectly, to the partners or other
equity interest holders of the Borrower or its Subsidiaries in respect of such
partnership or other equity interest or interests so characterizable; or any
other distribution on or in respect of any partnership interests of the Borrower
or its Subsidiaries; and
(ii) with
respect to MCRC, the declaration or payment of any cash dividend or distribution
on or in respect of any shares of any class of capital stock of
MCRC.
Dollars
or
$.
Dollars
in lawful currency of the United States of America.
Drawdown
Date.
The
date on which any Loan is made or is to be made, and the date on which any
Loan
is converted or continued in accordance with §2.6.
Eligible
Assignee.
Any of
(a) a commercial bank organized under the laws of the United States, or any
State thereof or the District of Columbia, and having total assets in excess
of
$1,000,000,000; (b) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof or the District of
Columbia, and having total assets in excess of $1,000,000,000, calculated in
accordance with GAAP; (c) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation
and
Development (the “OECD”),
or a
political subdivision of any such country, and having total assets in excess
of
$1,000,000,000, provided
that
such bank is acting at all times with respect to this Agreement through a branch
or agency located in the United States of America, (d) the central bank of
any
country which is a member of OECD, (e) a financial institution reasonably
acceptable to the Administrative Agent which is regularly engaged in making,
purchasing or investing in loans and having total assets in excess of
$300,000,000 and (f) a Lender or a Lender Affiliate.
Eligible
Cash 1031 Proceeds.
The
cash proceeds held by a “qualified intermediary” from the sale of Real Estate,
which proceeds are intended to be used by the qualified intermediary to acquire
one or more “replacement properties” that are of “like-kind” to such Real Estate
in an exchange that qualifies as a tax-free exchange under Section 1031 of
the
Code, and no portion of which proceeds MCRC, the Borrower or any Subsidiary
has
the right to receive, pledge, borrow or otherwise obtain the benefits of until
such time as provided under the applicable “exchange agreement” (as such terms
in quotations are defined in Treasury Regulations Section 1.1031(k)-1(g)(4))
(the “Regulations”))
or
until such exchange is terminated. Upon the cash proceeds no longer being held
by the qualified intermediary pursuant to the Regulations or otherwise
qualifying under the Regulations for like-kind exchange treatment, such proceeds
shall cease being Eligible Cash 1031 Proceeds.
Eligible
Ground Lease.
A
ground lease that (a) has a minimum remaining term of thirty (30) years,
including tenant controlled options, as of any date of determination, (b) has
customary notice rights, default cure rights, bankruptcy new lease rights and
other customary provisions for the benefit of a leasehold mortgagee or has
equivalent protection for a leasehold permanent mortgagee by a subordination
to
such leasehold permanent mortgagee of the landlord’s fee interest, and (c) is
otherwise acceptable for Without Recourse leasehold mortgage financing (with
the
exception permitted under clause (b) above) under customary prudent lending
requirements. The Eligible Ground Leases as of the date of this Agreement are
listed on Schedule
EG.
Employee
Benefit Plan.
Any
employee benefit plan within the meaning of §3(3) of ERISA maintained or
contributed to by the Borrower or any ERISA Affiliate, other than a
Multiemployer Plan.
Environmental
Laws.
See
§6.18(a).
Equity
Interests.
With
respect to any Person, shares of capital stock of (or other ownership interests
in) such Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other ownership
interests
in)
such
Person, securities convertible into or exchangeable for shares of capital stock
of (or other ownership interests in) such Person or warrants, rights or options
for the purchase or other acquisition from such Person of such shares (or such
other interests), and other ownership interests in such Person (including,
without limitation, partnership, member, beneficial or trust interests therein),
whether voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are authorized or otherwise existing on any date
of
determination.
ERISA.
The
Employee Retirement Income Security Act of 1974, as amended and in effect from
time to time.
ERISA
Affiliate.
Any
Person which is treated as a single employer with the Borrower under §414 of the
Code.
ERISA
Reportable Event.
A
reportable event with respect to a Guaranteed Pension Plan within the meaning
of
§4043 of ERISA and the regulations promulgated thereunder as to which the
requirement of notice has not been waived.
Eurocurrency
Reserve Rate.
For any
day with respect to a LIBOR Rate Loan, the weighted average of the rates
(expressed as a decimal) at which all of the Lenders subject thereto would
be
required to maintain reserves under Regulation D of the Board of Governors
of
the Federal Reserve System (or any successor or similar regulations relating
to
such reserve requirements) against “Eurocurrency Liabilities” (as that term is
used in Regulation D), if such liabilities were outstanding. The Eurocurrency
Reserve Rate shall be adjusted automatically on and as of the effective date
of
any change in the Eurocurrency Reserve Rate.
Event
of Default.
See
§12.1.
Fee
Letter.
The fee
letter agreement dated as of the date hereof among MCRC, the Borrower, the
Administrative Agent and the Arranger.
Financial
Statement Date.
With
respect to the Borrower, MCRC and their respective subsidiaries,
December 31, 2005.
Fitch.
Fitch
Ratings, a division of Fitch, Inc., and its successors.
Funds
From Operations.
As
defined in accordance with resolutions adopted by the Board of Governors of
the
National Association of Real Estate Investment Trusts as in effect from time
to
time, but in any event excluding one-time or non-recurring charges and non-cash
valuation charges.
GAAP.
Generally accepted accounting principles in effect from time to time in the
United States, consistently applied.
Guaranteed
Pension Plan.
Any
employee pension benefit plan within the meaning of §3(2) of ERISA maintained or
contributed to by the Borrower or any Guarantor, as the case may be, or any
ERISA Affiliate of any of them the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guaranties.
Collectively, (i) the MCRC Guaranty, (ii) the Subsidiary Guaranty, and
(iii) any other guaranty of the Obligations made by an Affiliate of the
Borrower in favor of the Administrative Agent and the Lenders.
Guarantors.
Collectively, MCRC, the Subsidiary Guarantors and any other Affiliate of the
Borrower executing a Guaranty; provided,
however,
when
the context so requires, Guarantor shall refer to MCRC or such Affiliate, as
appropriate. Any Guarantor that is the owner or ground lessee of an Unencumbered
Property shall be a wholly-owned Subsidiary. Provided further,
however,
from
and after the release of the Guaranty of any Subsidiary Guarantor pursuant
to §5
below, such Subsidiary Guarantor shall no longer be considered a “Guarantor” for
purposes of this Agreement.
Hazardous
Substances.
See
§6.18(b).
Indebtedness.
All
obligations, contingent and otherwise, that in accordance with GAAP should
be
classified upon the obligor’s balance sheet as liabilities, including, without
limitation, (a) all obligations for borrowed money and similar monetary
obligations, whether direct or indirect; (b) all liabilities secured by any
mortgage, pledge, negative pledge, security interest, lien, charge, or other
encumbrance existing on property owned or acquired subject thereto, whether
or
not the liability secured thereby shall have been assumed; (c) all obligations
under any Capitalized Lease (determined in accordance with §9.9) or any
Synthetic Lease; (d) all guarantees for borrowed money, endorsements and other
contingent obligations, whether direct or indirect, (without double counting
and
in accordance with §9.0) in respect of indebtedness or obligations of others,
including any obligation to supply funds (including partnership obligations
and
capital requirements) to or in any manner to invest in, directly or indirectly,
the debtor, to purchase indebtedness, or to assure the owner of indebtedness
against loss, through an agreement to purchase goods, supplies, or services
for
the purpose of enabling the debtor to make payment of the indebtedness held
by
such owner or otherwise, (e) the obligations to reimburse the issuer in respect
of any letters of credit (f) obligations in respect of banker acceptances,
(g)
obligations for the deferred purchase price of property to the extent of the
value of such property (excluding accounts payable and expenses arising in
the
ordinary course of business), (h) payment obligations in respect of interest
rate contracts, financial derivatives contracts and foreign exchange contracts,
net of liabilities owed by the counterparties thereon, and (i) to the extent
not
otherwise included, obligations of the Borrower under so-called forward equity
purchase contracts to the extent that such obligations are not payable solely
in
equity interests in MCRC; but, in any case, excluding Other Investments and
the
Newco Investment.
Initial
Funding Date.
The
date, on or after the Closing Date, and on which the Initial Term Loan under
this Agreement is requested by the Borrower and made by the Lenders to the
Borrower.
Initial
Term Loan.
See
§2.1.
Intercompany
Secured Debt.
See
§8.2(xii).
Interest
Payment Date.
(i) As
to any Alternate Base Rate Loan, the last day of the calendar month which
includes the Drawdown Date thereof; and (ii) as to any LIBOR Rate Loan, the
last
day of the Interest Period for such LIBOR Rate Loan.
Interest
Period.
With
respect to each Loan, (a) initially, the period commencing on the Drawdown
Date
of such Loan and ending on the last day of one of the following periods (as
selected by the Borrower in a Completed Loan Request or as otherwise in
accordance with the terms of this Agreement): (i) for any Alternate Base Rate
Loan, the last day of the calendar month, and (ii) for any LIBOR Rate Loan,
1,
2, or 3 months (provided
that the
Interest Period for LIBOR Rate Loans may be shorter than one (1) month in order
to consolidate two (2) or more LIBOR Rate Loans); and (b) thereafter, each
period commencing at the end of the last day of the immediately preceding
Interest Period applicable to such Loan and ending on the last day of the
applicable period set forth in (a) above as selected by the Borrower in a
Conversion Request or as otherwise in accordance with this Agreement;
provided
that all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(A) if
any
Interest Period with respect to a Alternate Base Rate Loan would end on a day
that is not a Business Day, that Interest Period shall end on the next
succeeding Business Day;
(B) if
any
Interest Period with respect to a LIBOR Rate Loan would otherwise end on a
day
that is not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(C) if
the
Borrower shall fail to give a Conversion Request as provided in §2.6, the
Borrower shall be deemed to have requested a continuation of the affected LIBOR
Rate Loan as a LIBOR Rate Loan with an Interest Period of one (1) month on
the
last day of the then current Interest Period with respect thereto, other than
during the continuance of a Default or an Event of Default;
(D) any
Interest Period relating to any LIBOR Rate Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall,
subject
to subparagraph (E) below, end on the last Business Day of a calendar month;
and
(E) any
Interest Period that would otherwise extend beyond the Maturity Date shall
end
on the Maturity Date.
Investment
Grade Credit Rating.
A
long-term unsecured, non-credit enhanced debt rating (a) from Moody’s of Baa3 or
higher, (b) from S&P of BBB- or higher, or (c) from a Third Rating Agency of
the Baa3/BBB- equivalent or higher.
Investments.
All
expenditures made and all liabilities incurred (contingently or otherwise,
but
without double-counting): (i) for the acquisition of stock, partnership or
other
equity interests or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, any Person; and (ii) for the
acquisition of any other obligations of any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) there shall be
included as an Investment all interest accrued with respect to Indebtedness
constituting an Investment unless and until such interest is paid; (b) there
shall be deducted in respect of each such Investment any amount received as
a
return of capital (but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (c) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise, except that accrued
interest included as provided in the foregoing clause (a) may be deducted when
paid; and (d) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
Leases.
Leases,
licenses and agreements, whether written or oral, relating to the use or
occupation of space in or on the Buildings or on the Real Estate by persons
other than the Borrower, its Subsidiaries or any Partially-Owned Entity,
provided
that
“Leases” shall include any such lease, license or other such agreement with a
Partially-Owned Entity if such lease, license or other agreement is at a market
level rent and related tenant charges, which are required to be paid monthly
or,
in the case of non-rent tenant charges, when usually and customarily required
to
be paid by other tenants of the same Real Estate (and at least
annually).
Lender
Affiliate. With
respect to any Lender, an Affiliate of such Lender.
Lenders.
Collectively, the Administrative Agent, any other lenders which may provide
additional commitments and become parties to this Agreement, and any other
Person who becomes an assignee of any rights of a Lender pursuant to §18 or a
Person who acquires all or substantially all of the stock or assets of a
Lender.
LIBOR
Breakage Costs.
With
respect to any LIBOR Rate Loan to be prepaid or not drawn after elected, or
converted prior to the last day of the applicable Interest Period, a prepayment
“breakage” fee in an amount determined by the Administrative Agent in the
following manner:
(i) First,
the Administrative Agent shall determine the amount by which (a) the total
amount of interest which would have otherwise accrued hereunder on each
installment of principal prepaid or not so drawn, during the period beginning
on
the date of such prepayment or failure to draw and ending on the last day of
the
applicable LIBOR Rate Loan Interest Period (the “Reemployment
Period”),
exceeds (b) the total amount of interest which would accrue, during the
Reemployment Period, on any readily marketable bond or other obligation of
the
United States of America designated by the Administrative Agent in its sole
discretion at or about the time of such payment, such bond or other obligation
of the United States of America to be in an amount equal (as nearly as may
be)
to the amount of principal so paid or not drawn after elected and to have
maturity at the end of the Reemployment Period, and the interest to accrue
thereon to take account of amortization of any discount from par or accretion
of
premium above par at which the same is selling at the time of designation.
Each
such amount is hereinafter referred to as an “Installment
Amount”.
(ii) Second,
each Installment Amount shall be treated as payable on the last day of the
LIBOR
Rate Loan Interest Period which would have been applicable had such principal
installment not been prepaid or not borrowed.
(iii) Third,
the amount to be paid on each such breakage date shall be the present value
of
the Installment Amount determined by discounting the amount thereof from the
date on which such Installment Amount is to be treated as payable, at the same
yield to maturity as that payable upon the bond or other obligation of the
United States of America designated as aforesaid by the Administrative
Agent.
If
by
reason of an Event of Default the Administrative Agent elects to declare a
LIBOR
Rate Loan to be immediately due and payable, then any breakage fee with respect
to such LIBOR Rate Loan shall become due and payable in the same manner as
though the Borrower had exercised such right of prepayment.
LIBOR
Business Day.
Any day
on which commercial banks are open for international business (including
dealings in Dollar deposits) in London.
LIBOR
Rate. For
any Interest Period with respect to a LIBOR Rate Loan, the rate of interest
per
annum (rounded upward, if necessary, to the nearest 1/100 of one percent) equal
to the rate appearing on the display known as “Telerate Page 3750” (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as reasonably determined by the
Administrative Agent from time to time for purposes of providing quotations
of
interest rates applicable to dollar deposits in the London interbank market)
at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with
a
maturity comparable to such Interest Period. In the event that such rate is
not
available at such time
for
any
reason, then the “LIBOR
Rate”
with
respect to such LIBOR Rate Loan for such Interest Period shall be the rate
at
which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
In
the
event that the Board of Governors of the Federal Reserve System shall impose
a
reserve requirement with respect to LIBOR deposits of the Lenders, then for
any
period during which such reserve requirement shall apply, the LIBOR Rate shall
be equal to the amount determined above divided by an amount equal to one (1.00)
minus the Eurocurrency Reserve Rate.
LIBOR
Rate Loan(s).
Loans
bearing interest calculated by reference to the LIBOR Rate.
Lien.
See
§8.2.
Loan
Documents.
Collectively, this Agreement, the Notes, the Guaranties, and any and all other
agreements, instruments or documents now or hereafter identified thereon as
a
“Loan Document” under this Agreement, and all schedules, exhibits and annexes
hereto or thereto, as the same may from time to time be amended and in
effect.
Loans.
The
Term Loan made by the Lenders pursuant to Section 2.1; provided, that if any
such loan (or portions thereof) are combined or subdivided pursuant to a
Conversion Request, the term “Loans” shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
Majority
Lenders.
The
Lenders holding fifty-one percent (51%) of the sum of the aggregate outstanding
principal amount of the Loans and the aggregate unsused (and available)
Commitments of all Lenders on such date.
Material
Adverse Effect.
Any
event or occurrence of whatever nature which: (a) has a material adverse effect
on the business, properties, operations or financial condition of (i) the
Borrower or (ii) MCRC or (iii) the Borrower, the Guarantors and their respective
Subsidiaries, taken as a whole, (b) has a material adverse effect on the ability
of the Borrower or any Guarantor to perform its payment and other material
obligations under any of the Loan Documents, or (c) causes a material impairment
of the validity or enforceability of any of the Loan Documents or any material
impairment of the rights, remedies and benefits available to the Administrative
Agent and the Lenders under any of the Loan Documents.
Maturity
Date.
May 29,
2007, or such earlier date on which the Loans shall become due and payable
pursuant to the terms thereof. The Borrower may, by notice to
the
Administrative
Agent given at least thirty (30) days prior to the May 29, 2007, extend the
Maturity Date up to six (6) months (until November 29, 2007), provided
that no
Default or Event of Default shall have occurred and be continuing and that
the
Borrower pay an aggregate extension fee equal to 0.05% of the then outstanding
principal amount of the Loans (to the Administrative Agent for the ratable
benefit of the Lenders).
MCRC
Guaranty.
The
Guaranty dated as of the date hereof made by MCRC in favor of the Administrative
Agent and the Lenders pursuant to which MCRC guarantees to the Administrative
Agent and the Lenders the unconditional payment and performance of the
Obligations.
MCRC
Organizational Change.
See
§7.7.
Moody’s.
Moody’s
Investors Service, Inc., and its successors.
Multiemployer
Plan.
Any
multiemployer plan within the meaning of §3(37) of ERISA maintained or
contributed to by the Borrower or any Guarantor as the case may be or any ERISA
Affiliate.
Net
Cash Proceeds.
With
respect to (i) any sale, lease, transfer or other disposition of any asset
or
(ii) the incurrence or issuance of any Indebtedness or (iii) the sale or
issuance of any Equity Interests to any Person (other than by the Borrower
to
MCRC or by any Subsidiary of the Borrower to the Borrower or another Subsidiary
of the Borrower and other than option exercises under MCRC’s stock option plans)
(including, without limitation, receipt of any capital contribution) by any
Person, the aggregate amount of cash received from time to time (whether as
initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a) reasonable
and customary brokerage commissions, underwriting fees and discounts, legal
fees, finder’s fees and other similar fees and commissions, (b) the amount of
taxes payable (or reasonably estimated to be payable) in connection with or
as a
result of such transaction, (c) the amount of any Indebtedness secured by a
Lien
on such asset that, by the terms of the agreement or instrument governing such
Indebtedness, is required to be repaid (and that is repaid) upon such
disposition and (d) the amount of any Indebtedness that is required to be repaid
(and is repaid) under the Revolving Credit Agreement in order for the Borrower
to maintain compliance with the covenants set forth in §8.3 and §9 of the
Revolving Credit Agreement.
Newco
Investment.
An
investment made by the Borrower, any Guarantor or any Subsidiary in one or
more
joint ventures to be formed substantially simultaneously with the Closing Date
in order to acquire Real Estate assets or interests in entities that own Real
Estate assets and in which the Borrower and its Subsidiaries will own not more
than 50% of the Equity Interests; provided
that (a)
such investment would not jeopardize MCRC’s status as a REIT, (b) subject to the
next sentence, such investment is Without Recourse to the Person making such
investment and the liability of the Person making such investment is limited
solely (including in any insolvency proceeding affecting such Person) to the
amount
so
invested, and (c) if the Person making such investment exercises any management
or control responsibilities, such management and/or control shall be exercised
through a so-called “bankruptcy-remote entity”. Notwithstanding anything
contained in the foregoing definition to the contrary, an investment may still
be a Newco Investment if it provides for (i) guaranties of completion, (ii)
guaranties of payment (which shall be included in Consolidated Total
Liabilities), (iii) environmental guaranties and indemnities, and/or (iv) other
typical recourse carve-outs from otherwise long-term, non-recourse debt, such
as
for fraud, waste, misappropriation of proceeds and material
misrepresentations.
Non-Material
Breach.
A (i)
breach of a representation or warranty or covenant contained in §6 or §7 (other
than §7.1), (ii) breach of any other representation or warranty or covenant as
to which such term “Non-Material Breach” is specifically applied, or
(iii) Permitted Event; but only to the extent any such breach under (i) or
(ii) or an event under (iii) (other than §7.1), neither (A) singularly or in
conjunction with any other existing breaches or events under (iii), materially
adversely affect the business, properties or financial condition of (x) MCRC;
(y) MCRLP; or (z) the Borrower, the Guarantors and their Subsidiaries, taken
as
whole nor (B) singularly or in conjunction with any other existing breaches
or
events under (iii), materially adversely affect the ability of (x) MCRC;
(y) MCRLP; or (z) the Borrower, the Guarantors and their Subsidiaries,
taken as a whole, to fulfill the obligations to the Lenders under the Loan
Documents (including, without limitation, the repayment of all amounts
outstanding under the Loans, together with interest and charges thereon, when
first due) nor (C) has been identified in this Agreement specifically as a
matter that does not constitute a Non-Material Breach. During the continuance
of
any Permitted Event, the Real Estate (including Unencumbered Property) and
other
assets of any affected Guarantor shall be excluded from asset (but not
liability) and income (but not loss) calculation under §9 which exclusions shall
be evidenced in all compliance certificates provided as required by this
Agreement.
A
breach
or event which may constitute a Non-Material Breach shall be identified when
first known to the Borrower, any Guarantor or Subsidiary on the next compliance
certificate required to be delivered to the Lenders pursuant to the terms of
this Agreement; provided
that the
identification of such breach or event as a Non-Material Breach by the Borrower,
any Guarantor or any Subsidiary shall not be binding on the
Lenders.
Note
Record.
A
Record with respect to the Notes.
Notes. Collectively,
the separate promissory notes of the Borrower in favor of each Lender in
substantially the form of Exhibit
A
hereto,
in the aggregate principal amount of the Total Commitment, dated as of the
date
hereof or as of such later date as any Person becomes a Lender under this
Agreement, and completed with appropriate insertions, as each of such notes
may
be amended and/or restated from time to time.
Obligations.
All
indebtedness, obligations and liabilities of the Borrower and its Subsidiaries
to any of the Lenders and the Administrative Agent, individually or
collectively, under this Agreement or any of the other Loan Documents or in
respect of any
of
the
Loans or the Notes or other instruments at any time evidencing any thereof,
whether existing on the date of this Agreement or arising or incurred hereafter,
direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise.
Operating
Subsidiaries.
Those
Subsidiaries of the Borrower that, at any time of reference, provide management,
construction, design or other services (excluding any such Subsidiary which
may
provide any such services which are only incidental to that Subsidiary’s
ownership of one or more Real Estate), and any successors or assigns of their
respective businesses and/or assets which are Subsidiaries of the Borrower
or
the Guarantors.
Other
Investment.
An
investment made by the Borrower, any Guarantor or any Subsidiary which has
been
or is designated by the Borrower at the time of investment or from time to
time
as an “Other Investment” (including an investment company but excluding the
Newco Investment); provided
that (a)
such investment would not jeopardize MCRC’s status as a REIT, (b) subject to the
next sentence, such investment is Without Recourse to the Person making such
investment and the liability of the Person making such investment is limited
solely (including in any insolvency proceeding affecting such Person) to the
amount so invested, (c) if the Person making such investment exercises any
management or control responsibilities, such management and/or control shall
be
exercised through a so-called “bankruptcy-remote entity” and (d) such investment
complies with the requirements of §9.8(b) hereof. Notwithstanding anything
contained in the foregoing definition to the contrary, an investment may still
be an Other Investment if it provides for (i) guaranties of completion, (ii)
guaranties of payment (which shall be included in Consolidated Total
Liabilities), (iii) environmental guaranties and indemnities, and/or (iv) other
typical recourse carve-outs from otherwise long-term, non-recourse debt, such
as
for fraud, waste, misappropriation of proceeds and material
misrepresentations.
Partially-Owned
Entity(ies).
Any of
the partnerships, joint ventures and other entities owning real estate assets
(other than an Other Investment or the Newco Investment) in which MCRLP and/or
MCRC collectively, directly or indirectly through its full or partial ownership
of another entity, own less than 100% of the equity interests, whether or not
such entity is required in accordance with GAAP to be consolidated with MCRLP
for financial reporting purposes.
PBGC.
The
Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor
entity or entities having similar responsibilities.
Permits.
All
governmental permits, licenses, and approvals necessary for the lawful operation
and maintenance of the Real Estate.
Permitted
Event.
The
exclusion of a Guarantor (other than MCRC) or any other Subsidiary or Operating
Subsidiary as a Credit Party by the Borrower solely for the purposes of the
proceedings of a bankruptcy filed by or against such Person and involving for
all
creditors
of such bankruptcy a total Indebtedness which is in an amount permitted within
§12.1(f)(i) cumulatively with any other then pending Permitted Event or other
matter affecting §12.1(f)(i). For purposes of a Permitted Event, the term
“bankruptcy” shall include all actions or proceedings described in §12.1(g) or
§12.1(h). The Borrower may exercise the provisions of §12.1 (last paragraph) for
Permitted Event(s) provided such exercise shall not allow for a breach of the
limitation on Permitted Events relating to §12.1(f)(i) or otherwise cause a
Default or Event of Default.
Permitted
Liens.
Liens,
security interests and other encumbrances permitted by §8.2.
Person.
Any
individual, corporation, partnership, trust, unincorporated association,
business, or other legal entity, and any government (or any governmental agency
or political subdivision thereof).
Project
Costs.
With
respect to Construction-In-Process, the actual project cost of such
Construction-In-Process shown on schedules submitted to the Administrative
Agent
from time to time; provided
that for
Construction-In-Process owned by any Partially-Owned Entity, the Project Cost
of
such Construction-In-Process shall be the Borrower’s or its subsidiaries’
pro-rata share of the actual project cost of such Construction-In-Process (based
on the greater of (x) the Borrower’s or its subsidiaries’ percentage equity
interest in such Partially-Owned Entity or (y) the Borrower’s or its
subsidiaries’ obligation to provide, or liability for providing, funds to such
Partially-Owned Entity).
Public
Debt.
Unsecured Indebtedness, not subordinated to the Obligations (or to the holders
thereof), issued by the Borrower and which is either (a) in offerings registered
under the Securities Act of 1933, as amended, or in transactions exempt from
registration pursuant to rule 144A or Regulation B thereunder or listed on
non-U.S. securities exchanges or (b) pursuant to the Indenture dated as of
March
16, 1999 by and between the Borrower, MCRC and Wilmington Trust Company, a
Delaware banking corporation as trustee, or any successor trustee or assignee
thereof (collectively, the “Trustee”),
as
supplemented by Supplemental Indenture No. 1 dated as of the same date between
the Borrower and the Trustee, and by Supplemental Indenture No. 2 dated as
of
August 2, 1999 between the Borrower and the Trustee, and by Supplemental
Indenture No. 3 dated as of December 21, 2000 between the Borrower and
the Trustee, and by Supplemental Indenture No. 4 dated as of
January 29, 2001 between the Borrower and the Trustee, and by Supplemental
Indenture No. 5 dated as of December 20, 2002 between the Borrower and the
Trustee, and by Supplemental Indenture No. 6 dated as of March 14, 2003 between
the Borrower and the Trustee, and by Supplemental Indenture No. 7 dated as
of
June 12, 2003 between the Borrower and the Trustee, and by Supplemental
Indenture No. 8 dated as of February 9, 2004 between the Borrower and the
Trustee, and by Supplemental Indenture No. 9 dated as of March 22, 2004 between
the Borrower and the Trustee and by Supplemental Indenture No. 10 dated as
of
January 25, 2005 between the Borrower and the Trustee, and by Supplemental
Indenture No. 11 dated as of April 15, 2005 between the Borrower and the
Trustee, and by Supplemental Indenture No. 12 dated as of November 30, 2005
between the Borrower and the Trustee, and by Supplemental Indenture No. 13
dated
as of January 24,
2006
between the Borrower and the Trustee, and as the Indenture may be further
supplemented and/or amended from time to time.
RCRA.
See
§6.18.
Real
Estate.
The
fixed and tangible properties consisting of land, buildings and/or other
improvements owned or ground-leased as a lessee by the Borrower, by any
Guarantor or by any other entity in which the Borrower is the holder of an
equity interest (other than Other Investments or the Newco Investment) at the
relevant time of reference thereto, including, without limitation, (i) the
Unencumbered Properties at such time of reference, and (ii) the real estate
assets owned or ground-leased as a lessee by each of the Partially-Owned
Entities at such time of reference.
Record.
The
grid attached to any Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by any Lender with
respect to any Loan.
Recourse.
With
reference to any obligation or liability, any liability or obligation that
is
not Without Recourse to the obligor thereunder, directly or indirectly. For
purposes hereof, a Person shall not be deemed to be “indirectly” liable for the
liabilities or obligations of an obligor solely by reason of the fact that
such
Person has an ownership interest in such obligor, provided
that
such Person is not otherwise legally liable, directly or indirectly, for such
obligor’s liabilities or obligations (e.g., by reason of a guaranty or
contribution obligation, by operation of law or by reason of such Person’s being
a general partner of such obligor).
Reinstated
Commitment.
See
§2.1.
REIT.
A “real
estate investment trust”, as such term is defined in Section 856 of the
Code.
Release.
See
§6.18(c)(iii).
Required
Lenders.
The
Lenders holding sixty-six and two-thirds percent (66-2/3%) of the sum of the
aggregate outstanding principal amount of the Loans and the aggregate unused
(and available) Commitments of all Lenders on such date; and provided
further
that if
any Lender shall be a Delinquent Lender at such time, then there shall be
excluded from the determination of Required Lenders the amount of the Commitment
and Loans of such Lender, as applicable, at such time.
Revised
Adjusted Unencumbered Property NOI.
With
respect to any fiscal period for any Unencumbered Property, Adjusted
Unencumbered Property NOI for such Unencumbered Property for such period;
minus
(a)
interest income relating to such Unencumbered Property and (b) a management
fee
reserve in an amount equal to three percent (3%) of total revenue (after
deduction of interest income of such Unencumbered
Property
for such period); plus
(i)
actual general and administrative expenses to the extent included in Adjusted
Unencumbered Property NOI relating to such Unencumbered Property for such period
and (ii) actual management fees relating to such Unencumbered Property for
such
period.
Revised
Consolidated Adjusted Net Income.
For any
period, Consolidated Adjusted Net Income for such period; minus
(a)
interest income and (b) a management fee reserve in an amount equal to three
percent (3%) of consolidated total revenue (after deduction of interest income
of MCRC, the Borrower and their respective Subsidiaries for such period),
plus
(i)
actual general and administrative expenses for such period to the extent
included in Consolidated Adjusted Net Income and (ii) actual management fees
relating to Real Estate for such period.
Revolving
Credit Agreement.
The
Second Amended and Restated Revolving Credit Agreement dated as of November
23,
2004 among the Borrower, JPMorgan and the other lenders party thereto, and
JPMorgan as administrative agent for such lenders, as modified by the Extension
and Modification Agreement dated as of September 16, 2005 and the Second
Modification Agreement dated as of July 14, 2006.
Revolving
Credit Facility.
The
revolving credit facility evidenced by the Revolving Credit
Agreement.
S&P.
Standard & Poor’s Ratings Group, a division of McGraw-Hill, Inc., and its
successors.
SARA.
See
§6.18.
SEC
Filings.
Collectively, (a) the MCRC’s Annual Report on Forms 10-K and 10-K/A for the year
ended December 31, 2005, filed with the Securities and Exchange Commission
(the
“SEC”)
pursuant to the Securities and Exchange Act of 1934, as amended (the
“Exchange
Act”),
and
(b) MCRC’s Quarterly Report on Form 10-Q for the fiscal quarter ended September
30, 2006, filed with the SEC pursuant to the Exchange Act.
subsidiary.
Any
entity required to be consolidated with its direct or indirect parent in
accordance with GAAP.
Subsidiary.
Any
corporation, association, partnership, limited liability company, trust, or
other business entity of which the designated parent shall at any time own
directly, or indirectly through a Subsidiary or Subsidiaries, at least a
majority (by number of votes or controlling interests) of the outstanding voting
interests or at least a majority of the economic interests (including, in any
case, the Operating Subsidiaries and any entity required to be consolidated
with
its designated parent in accordance with GAAP; but, in any case, specifically
excluding any Other Investments or the Newco Investment).
Subsidiary
Guarantor.
Any
Guarantor other than MCRC. The Subsidiary Guarantors on the Closing Date are
listed on Schedule
SG
hereto.
Subsidiary Guaranty.
The
Guaranty made by the Subsidiary Guarantors in favor of the Administrative Agent
and the Lenders in substantially the form of Exhibit
B
hereto,
pursuant to which the Subsidiary Guarantors jointly and severally guaranty
the
unconditional payment and performance of the Obligations.
Subsidiary
Guaranty Proceeds.
See
§5.2.
Synthetic
Lease.
Any
lease which is treated as an operating lease under GAAP and as a loan or
financing for U.S. income tax purposes.
Third
Debt
Rating.
MCRLP’s
long term unsecured, non-credit enhanced debt rating from a Third Rating
Agency.
Third
Rating Agency.
Fitch
or another nationally-recognized rating agency (other than S&P or Moody’s)
reasonably satisfactory to the Administrative Agent.
Total
Commitment.
The sum
of the Commitments of the Lenders, which shall equal $350,000,000, as the same
may be reinstated in accordance with §2.1 or reduced or terminated in accordance
with §2.11.
Type.
As to
any Loan, its nature as a Alternate Base Rate Loan or a LIBOR Rate
Loan.
Unanimous
Lender Approval.
The
written consent of each Lender that is a party to this Agreement at the time
of
reference.
Unencumbered
Property.
Any
Real Estate located in the United States that on any date of determination:
(a)
is not subject to any Liens (including any such Lien imposed by the
organizational documents of the owner of such asset, but excluding Permitted
Liens other than those listed in §8.2(iii) and §8.2(x)), as certified to his
knowledge by an officer of the Borrower on the Closing Date or such later date
on which such Real Estate becomes an Unencumbered Property, (b) is not the
subject of a Disqualifying Environmental Event, as certified to his knowledge
by
an officer of the Borrower on the Closing Date or such later date on which
such
Real Estate becomes an Unencumbered Property (which certification may be based
on third party reports) (c) has been improved with a Building or Buildings
which
(1) have been issued a certificate of occupancy (where available) or is
otherwise lawfully occupied for its intended use, and (2) are fully operational,
including in each case, an Unencumbered Property that is being renovated and
such renovation is proceeding to completion without undue delay from Permit
denial, construction delays or otherwise, (d) is not in violation of the
covenant set forth in §7.9 hereof, (e) is wholly owned or ground-leased under an
Eligible Ground Lease by the Borrower or a Guarantor that is a
wholly
owned
Subsidiary, and (f) has not been the subject of an event or occurrence that
has
had a Material Adverse Effect on such Guarantor.
Unimproved
Non-Income Producing Land.
Any
Real Estate consisting of raw land which is unimproved by Buildings and does
not
generate any rental income or other income for MCRC or the Borrower or any
of
their respective Subsidiaries.
Unrestricted
Cash and Cash Equivalents.
As of
any date of determination, the sum of (a) the aggregate amount of unrestricted
cash then held by the Borrower or any of its Subsidiaries and (b) the aggregate
amount of unrestricted cash equivalents (valued at fair market value) then
held
by the Borrower or any of its Subsidiaries. As used in this definition, (i)
“unrestricted” means the specified asset is not subject to any Liens in favor of
any Person and (ii) “cash equivalents” includes overnight deposits and also
means that such asset has a liquid, par value in cash and is convertible to
cash
within 3 months. Notwithstanding anything contained herein to the contrary,
the
term Unrestricted Cash and Cash Equivalents shall not include the Commitments
of
the Lenders to make Loans under the Revolving Credit Facility or any other
commitments from which the access to such cash or cash equivalents would create
Indebtedness.
Unsecured
Indebtedness.
All
Indebtedness of any Person that is not secured by a Lien on any asset of such
Person.
wholly-owned
Subsidiary.
Any
Subsidiary (a) of which MCRLP and/or MCRC shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a controlling majority
(by number of votes or controlling interests) of the outstanding voting
interests and one hundred percent (100%) of the economic interests, of which
at
least ninety-five percent (95%) of the economic interests shall be owned by
MCRLP and (b) of which MCRC directly or indirectly (through wholly-owned
Subsidiaries) acts as sole general partner or managing member; provided
that the
Subsidiary Guarantors shall be wholly-owned Subsidiaries.
“Without
Recourse”
or
“without
recourse”.
With
reference to any obligation or liability, any obligation or liability for which
the obligor thereunder is not liable or obligated other than as to its interest
in a designated Real Estate or other specifically identified asset only, subject
to such limited exceptions to the non-recourse nature of such obligation or
liability, such as fraud, misappropriation, misapplication and environmental
indemnities, as are usual and customary in like transactions involving
institutional lenders at the time of the incurrence of such obligation or
liability.
§1.2. Rules
of Interpretation.
(i) A
reference to any document or agreement shall include such document or agreement
as amended, modified or supplemented from time to time in accordance with its
terms (and so amended, modified or supplemented in accordance with this
Agreement) or the terms of this Agreement.
(ii) The
singular includes the plural and the plural includes the singular.
(iii) A
reference to any law includes any amendment or modification to such
law.
(iv) A
reference to any Person includes its permitted successors and permitted
assigns.
(v) Accounting
terms (a) not otherwise defined herein have the meanings assigned to them by
GAAP applied on a consistent basis by the accounting entity to which they refer
and (b) shall not provide for double counting of items included within such
term.
(vi) The
words
“include”, “includes” and “including” are not limiting.
(vii) All
terms
not specifically defined herein or by GAAP, which terms are defined in the
Uniform Commercial Code as in effect in New York, have the meanings assigned
to
them therein.
(viii) Reference
to a particular “§” refers to that section of this Agreement unless otherwise
indicated.
(ix) The
words
“herein”, “hereof”, “hereunder” and words of like import shall refer to this
Agreement as a whole and not to any particular section or subdivision of this
Agreement.
(x) Any
provision granting any right to the Borrower or any Guarantor during the
continuance of (a) an Event of Default shall not modify, limit, waive or estopp
the rights of the Lenders during the continuance of such Event of Default,
including the rights of the Lenders to accelerate the Loans under §12.1 and the
rights of the Lenders under §§12.2 or 12.3, or (b) a Default, shall not extend
the time for curing same or modify any otherwise applicable notice regarding
same.
(xi) As
applied to Real Estate, the word “owns” includes the ownership of the fee
interest in such Real Estate or the tenant’s interest in a ground lease of such
Real Estate.
§2. THE
TERM LOAN FACILITY.
§2.1. Commitment
to Lend.
Subject
to the terms and conditions set forth in this Agreement, each Lender hereby
severally and not jointly agrees to make a term loan in Dollars (the
“Initial
Term Loan”
and
collectively with any Additional Term Loans (as defined below), the
“Term
Loans”)
to the
Borrower on the Initial Funding Date, in an amount equal to such Lender's
Commitment Percentage of the principal amount of
$350,000,000
(or such lesser amount as shall be requested by the Borrower). The aggregate
amount of the Initial Term Loans to be made hereunder shall not exceed
$350,000,000. The Initial Term Loan shall be made by the Lenders simultaneously
and proportionately to their respective Commitment Percentages, it being
understood that no Lender shall be responsible for any failure by any other
Lender to perform its obligation to make the Initial Term Loan hereunder nor
shall the Initial Term Loan of any Lender be increased or decreased as a result
of any such failure. The Commitments shall expire on the earlier of (i) the
date
on which the Initial Term Loan is made and (ii) December 4, 2006;
provided that if a portion of the Loans have been repaid in accordance with
§2.10(c), then the Commitments shall be reinstated to the extent of and in an
amount equal to the portion of the Loans so repaid (the “Reinstated
Commitments”)
and
such Reinstated Commitments shall be available for reborrowing in accordance
with the next paragraph.
Subject
to the terms and conditions set forth in this Agreement, each Lender hereby
severally and not jointly agrees to make an additional term loan in a single
draw in Dollars (the “Additional
Term Loan”)
to the
Borrower on the Additional Funding Date, in an amount equal to such Lender's
Commitment Percentage of the principal amount of the Reinstated Commitments
as
shall be requested by the Borrower. The amount of the Additional Term Loan
shall
not exceed the amount of the Reinstated Commitments, and the aggregate
outstanding amount of the Term Loans (after giving effect to such Additional
Term Loan) shall not exceed $350,000,000. The Additional Term Loan shall be
made
by the Lenders simultaneously and proportionately to their respective Commitment
Percentages, it being understood that no Lender shall be responsible for any
failure by any other Lender to perform its obligation to make an Additional
Term
Loan hereunder nor shall the Additional Term Loan of any Lender be increased
or
decreased as a result of any such failure. The Reinstated Commitment shall
expire on the earlier of (i) the date on which the Additional Term Loan is
made
and (ii) January 31, 2007.
Each
request for a Loan made pursuant to §2.5 hereof shall constitute a
representation and warranty by the Borrower that the conditions set forth in
§10
have been satisfied as of the Closing Date and that the conditions set forth
in
§11 have been satisfied on the date of such request and will be satisfied on
the
proposed Drawdown Date of the requested Loan, provided
that the
making of such representation and warranty by the Borrower shall not limit
the
right of any Lender not to lend
if such
conditions have not been met. No Loan shall be required to be made by any Lender
unless all of the conditions contained in §10 have been satisfied as of the
Closing Date and all of the conditions set forth in §11 have been met at the
time of any request for a Loan.
§2.2. [Reserved].
§2.3. The
Notes.
The
Loans shall be evidenced by the Notes. A Note shall be payable to the order
of
each Lender in an aggregate principal amount equal to such Lender’s Commitment.
The Borrower irrevocably authorizes each Lender to make or cause to be made,
at
or about the time of the Drawdown Date of any Loan or at the time of receipt
of
any payment of principal on such Lender’s Notes, an appropriate notation on such
Lender’s Note Record reflecting the making of such Loan or (as the case may be)
the receipt of such
payment.
The outstanding amount of the Loans set forth on such Lender’s Note Record shall
be prima
facie
evidence
of the principal amount thereof owing and unpaid to such Lender, but the failure
to record, or any error in so recording, any such amount on such Lender’s Note
Record shall not limit or otherwise affect the obligations of the Borrower
hereunder or under any Note to make payments of principal of or interest on
any
Note when due. The Administrative Agent hereby agrees to provide the Borrower
with a statement concerning the outstanding amount of the Loans, in reasonable
detail, on a monthly basis. Although each Note shall be dated the Closing Date,
interest in respect thereof shall be payable only for the periods during which
the Loans evidenced thereby to the Borrower are outstanding, and although the
stated amount of such Notes shall be equal to the Total Commitment as of the
date hereof, such Notes shall be enforceable, with respect to obligations of
the
Borrower to pay the principal amount thereof, only to the extent of the unpaid
principal amount of the Loans to them as of any date of
determination.
§2.4. Interest
on Loans; Fees.
(a) Interest
on Alternate Base Rate Loans.
Except
as otherwise provided in §4.9, each Alternate Base Rate Loan shall bear interest
for the period commencing with the Drawdown Date thereof and ending on the
last
day of the Interest Period with respect thereto (unless earlier paid in
accordance with §2.9) at a rate equal to the Alternate Base Rate plus
the
Applicable Margin for Alternate Base Rate Loans, if any.
(b) Interest
on LIBOR Rate Loans.
Except
as otherwise provided in §4.9, each LIBOR Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last day
of
the Interest Period with respect thereto (unless earlier paid in accordance
with
§2.9) at a rate equal to the LIBOR Rate determined for such Interest Period
plus
the
Applicable Margin for LIBOR Rate Loans.
(c) Interest
Payments.
The
Borrower unconditionally promises to pay interest on each Loan in arrears on
each Interest Payment Date with respect thereto.
(d) Fees.
The
Borrower shall pay the fees as set forth in the Fee Letter.
§2.5. Requests
for Loans.
The
following provisions shall apply to the request by the Borrower for a
Loan:
(i) The
Borrower shall submit a Completed Loan Request to the Administrative Agent
as
provided in this §2.5. Such Completed Loan Request shall be irrevocable and
binding on the Borrower and shall obligate the Borrower to accept the Loans
requested from the Lenders on the proposed Drawdown Date.
(ii) Each
Completed Loan Request may be delivered by the Borrower to the Administrative
Agent by 12:00 p.m. noon (New York City time) on any Business Day. Such delivery
shall be made at least by 12:00 p.m. noon (New York time) on
the
proposed Drawdown Date of any Alternate Base Rate Loan, and at least three
(3)
Business Days prior to the proposed Drawdown Date of any LIBOR Rate
Loan.
(iii) Each
Completed Loan Request shall include a completed writing in the form of
Exhibit
C
hereto
specifying: (1) the principal amount of the Loan requested, (2) the
proposed Drawdown Date of such Loan, (3) the Interest Period applicable to
such
Loan, and (4) the Type of such Loan being requested.
(iv) No
Lender
shall be obligated to fund any Loan unless:
(a) a
Completed Loan Request has been timely received by the Administrative Agent
as
provided in subsection (i) above; and
(b) both
before and after giving effect to the Loan to be made pursuant to the Completed
Loan Request, all of the conditions contained in §10 shall have been satisfied
as of the Closing Date and all of the conditions set forth in §11 shall have
been met, including, without limitation, the condition under §11.1 that there be
no Default or Event of Default under this Agreement; and
(c) the
Administrative Agent shall have received a certificate in the form of
Exhibit
D
hereto
signed by the chief financial officer or senior vice president of finance or
other thereon designated officer of the Borrower setting forth computations
evidencing compliance with the covenants contained in §§9.1 and 9.6 on a
pro
forma
basis
after giving effect to such requested Loan (including, to the extent necessary
to evidence compliance thereunder, the estimated results for all Real Estate
to
be acquired with the proceeds of such requested Loan), and, certifying that,
both before and after giving effect to such requested Loan, no Default or Event
of Default exists or will exist under this Agreement or any other Loan Document,
and that after taking into account such requested Loan, no Default or Event
of
Default will exist as of the Drawdown Date or thereafter.
(v) The
Administrative Agent will cause the Completed Loan Request (and the Certificate
in the form of Exhibit D)
to be
delivered to each Lender in accordance with §14.12 and in any event on the same
day that such request is received by the Administrative Agent (in the case
of an
Alternate Base Rate Loan) and on the same day or the Business Day following
the
day a Completed Loan Request is received by the Administrative Agent (in the
case of a LIBOR Rate Loan).
§2.6. Conversion
Options.
(a) The
Borrower may elect from time to time by delivering a Conversion Request in
the
form of Exhibit
L
to
convert all or a portion of any outstanding Loan to a
Loan
of
another Type, provided
that (i)
with respect to any such conversion of a LIBOR Rate Loan to an Alternate Base
Rate Loan, the Borrower shall give the Administrative Agent at least three
(3)
Business Days prior written notice of such election; (ii) with respect to any
such conversion of an Alternate Base Rate Loan to a LIBOR Rate Loan, the
Borrower shall give the Administrative Agent at least three (3) LIBOR Business
Days prior written notice of such election; (iii) with respect to any such
conversion of a LIBOR Rate Loan into a Alternate Base Rate Loan, such conversion
shall only be made on the last day of the Interest Period with respect thereto
unless the Borrower pays the related LIBOR Breakage Costs at the time of such
conversion and (iv) no Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing. All or any part
of
outstanding Loans of any Type may be converted into a Loan of another Type
as
provided herein, provided
that any
partial conversion shall be in an aggregate principal amount of $2,000,000
or a
integral multiple of $500,000 in excess thereof. Each Conversion Request
relating to the conversion of a Alternate Base Rate Loan to a LIBOR Rate Loan
shall be irrevocable by the Borrower.
(b) Any
Loan
of any Type may be continued as such upon the expiration of the Interest Period
with respect thereto (i) in the case of Alternate Base Rate Loans, automatically
and (ii) in the case of LIBOR Rate Loans by compliance by the Borrower with
the
notice provisions contained in §2.6(a) or (c); provided
that no
LIBOR Rate Loan may be continued as such when any Default or Event of Default
has occurred and is continuing but shall be automatically converted to a
Alternate Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of Default. The
Administrative Agent shall notify the Lenders promptly when any such automatic
conversion contemplated by this §2.6(b) is scheduled to occur.
(c) In
the
event that the Borrower does not notify the Administrative Agent of its election
hereunder with respect to the continuation of any LIBOR Rate Loan as such,
the
affected LIBOR Rate Loan shall automatically be continued as a LIBOR Rate Loan
with an Interest Period of one (1) month at the end of the applicable Interest
Period other than during the continuance of a Default or Event of Default,
in
which case it will be continued as a Alternate Base Rate Loan at the end of
the
applicable Interest Period. In such event, the Borrower shall be deemed to
have
requested a LIBOR Rate Loan hereunder and shall be subject to all provisions
of
this Agreement relating to LIBOR Rate Loans, including, without limitation,
those set forth in §§4.5, 4.6, and 4.8 hereof.
(d) The
Borrower may not request or elect a LIBOR Rate Loan pursuant to §2.5, elect to
convert a Alternate Base Rate Loan to a LIBOR Rate Loan pursuant to §2.6(a),
elect to continue a LIBOR Rate Loan pursuant to §2.6(b) or have continued a
LIBOR Rate Loan pursuant to §2.6(c) if, after giving effect thereto, there would
be greater than three (3) LIBOR Rate Loans then outstanding. Any Loan Request
for a LIBOR Rate Loan that would create greater than three (3) LIBOR Rate Loans
outstanding shall be deemed to be a Loan Request for a Alternate Base Rate
Loan.
§2.7. Funds
for Loans.
(a) Subject
to the other provisions of this §2, not later than 12:00 p.m. (New York
City time) on the proposed Drawdown Date of any Loan, each of the Lenders will
make available to the Administrative Agent, at the Administrative Agent’s Head
Office, in immediately available funds, the amount of such Lender’s Commitment
Percentage of the amount of the requested Loan; provided
that
each Lender shall provide notice to the Administrative Agent of its intent
not
to make available its Commitment Percentage of any requested Loan as soon as
possible after receipt of any Completed Loan Request, and in any event not
later
than 4:00 p.m. (New York City time) on (x) the Business Day prior to the
Drawdown Date of any requested Alternate Base Rate Loan and (y) the third
Business Day prior to the Drawdown Date of any requested LIBOR Rate Loan. Upon
receipt from each Lender of such amount, the Administrative Agent will make
available to the Borrower, in the Borrower’s account with the Administrative
Agent or as otherwise directed to the Administrative Agent by the Borrower,
the
aggregate amount of such Loan made available to the Administrative Agent by
the
Lenders; all such funds received by the Administrative Agent by the times set
forth above will be made available to the Borrower not later than 2:00 p.m.
on
the same Business Day. Funds received after such time will be made available
by
not later than 12:00 p.m. on the next Business Day. The Administrative Agent
hereby agrees to promptly provide the Borrower with a statement confirming
the
particulars of each LIBOR Rate Loan, in reasonable detail, when each such Loan
is made. The failure or refusal of any Lender to make available to the
Administrative Agent at the aforesaid time and place on any Drawdown Date the
amount of its Commitment Percentage of the requested Loan shall not relieve
any
other Lender from its several obligation hereunder to make available to the
Administrative Agent the amount of its Commitment Percentage of any requested
Loan but in no event shall the Administrative Agent (in its capacity as
Administrative Agent) have any obligation to make any funding or shall any
Lender be obligated to fund more than its Commitment Percentage of the requested
Loan or to increase its Commitment Percentage on account of such failure or
otherwise.
(b) The
Administrative Agent may, unless notified to the contrary by any Lender prior
to
a Drawdown Date, assume that such Lender has made available to the
Administrative Agent on such Drawdown Date the amount of such Lender’s
Commitment Percentage of the Loan to be made on such Drawdown Date, and the
Administrative Agent may (but it shall not be required to), in reliance upon
such assumption, make available to the Borrower a corresponding amount. If
any
Lender makes available to the Administrative Agent such amount on a date after
such Drawdown Date, such Lender shall pay to the Administrative Agent on demand
an amount equal to the product of (i) the average, computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid
by
the Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, multiplied
by
(ii) the
amount of such Lender’s Commitment Percentage of such Loan, multiplied
by
(iii) a
fraction, the numerator of which is the number of days that elapsed from and
including such Drawdown Date to the date on which the amount of such Lender’s
Commitment Percentage of such Loan shall become immediately available to the
Administrative Agent, and the denominator of which is
360.
A
statement of the Administrative Agent submitted to such Lender with respect
to
any amounts owing under this paragraph shall be prima
facie
evidence
of the amount due and owing to the Administrative Agent by such Lender. If
the
amount of such Lender’s Commitment Percentage of such Loans is not made
available to the Administrative Agent by such Lender within three (3) Business
Days following such Drawdown Date, the Administrative Agent shall be entitled
to
recover such amount from the Borrower on demand, with interest thereon at the
rate per annum applicable to the Loans made on such Drawdown Date.
§2.8. Repayment
of Loans at Maturity.
The
Borrower promises to pay on the Maturity Date, and there shall become absolutely
due and payable on the Maturity Date, all unpaid principal of the Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon, and any and all other unpaid amounts due under this Agreement, the
Notes or any other of the Loan Documents.
§2.9. Optional
Repayments of Loans.
The
Borrower shall have the right, at its election, to prepay the outstanding amount
of the Loans, in whole or in part, at any time without penalty or premium;
provided
that the
outstanding amount of any LIBOR Rate Loans may not be prepaid unless the
Borrower pays any LIBOR Breakage Costs for each LIBOR Rate Loan so prepaid
at
the time of such prepayment. The Borrower shall give the Administrative Agent,
no later than 11:00 a.m., New York City time, at least one (1) Business Day’s
prior written notice of any prepayment pursuant to this §2.9 of any Alternate
Base Rate Loans, and at least three (3) LIBOR Business Days’ notice of any
proposed prepayment pursuant to this §2.9 of LIBOR Rate Loans, specifying the
proposed date of prepayment of Loans and the principal amount to be prepaid.
Each such partial prepayment shall be in an amount of $2,000,000 or integral
multiple of $500,000 in excess thereof or, if less, the outstanding balance
of
the Loans then being repaid, shall be accompanied by the payment of all charges
outstanding on all Loans so prepaid and of all accrued interest on the principal
prepaid to the date of payment. Amounts repaid pursuant to this §2.9 may not be
reborrowed.
§2.10. Mandatory
Prepayments. (a) The
Borrower shall, on the date of receipt of any Net Cash Proceeds by MCRC, the
Borrower or their respective Subsidiaries from (a) the sale, lease, transfer
or
other disposition of any assets of MCRC, the Borrower or their respective
Subsidiaries (other than any sale, lease, transfer or other disposition of
assets for Net Cash Proceeds in the aggregate not to exceed $25,000,000 during
the term of this Agreement), (b) the incurrence or issuance by MCRC, the
Borrower or their respective Subsidiaries of any Indebtedness (other than
borrowings under the Revolving Credit Facility); provided, however, that if
any
Indebtedness is incurred for a particular acquisition or transaction and such
acquisition or transaction is either unwound or not consummated, then the Net
Cash Proceeds of such Indebtedness shall be used to pay back the lender of
such
Indebtedness, or (c) the issuance and sale by MCRC, the Borrower or their
respective Subsidiaries of any Equity Interests for cash, prepay the Loans
in an
aggregate amount equal to such Net Cash Proceeds. The Borrower shall make such
prepayment together with all
accrued
interest on the amount prepaid. Notwithstanding the foregoing, (1) the Borrower
shall not be required to make the prepayment described in clause (a) if and
to
the extent that the Borrower uses such Net Cash Proceeds to purchase other
real
property assets, in a bona fide, qualified, deferred exchange under §1031 of the
Code, provided that (i) the Borrower shall deposit all such Net Cash Proceeds
of
sale or other disposition, until required in connection with the purchase of
a
property, with a qualified intermediary reasonably acceptable to the
Administrative Agent and (ii) such qualified intermediary shall be instructed
to
pay such net proceeds to the Administrative Agent on behalf of the Lenders
in
the event that either (x) such other real property assets are not identified
within 45 days of such sale, or (y) such purchase does not occur within 180
days
of such sale and (2) if MCRC, the Borrower or their respective Subsidiaries
receives Net Cash Proceeds from the sale of the Real Estate located at 795
Folsom Street in San Francisco, California that would otherwise be required
to
be used to prepay the Loans, the Borrower may elect to retain such Net Cash
Proceeds if it instead reduces the Total Commitment pursuant to §2.11 in an
amount equal to such Net Cash Proceeds that would have otherwise been used
to
prepay the Loans. Amounts repaid pursuant to this §2.10(a) may not be
reborrowed.
(b) If
any
transaction to which the Borrower applies the proceeds of the Loans does not
close for any reason, or if the Borrower uses the proceeds of the Loans to
make
a deposit on any transaction (whether into an escrow account or otherwise)
and
such deposit is thereafter returned or refunded to MCRC, the Borrower or their
respective Subsidiaries, then in each case, the Borrower shall, on the date
such
proceeds are returned to MCRC, the Borrower or any of their respective
Subsidiaries, prepay the Loans in an aggregate amount equal to such returned
amount. Amounts repaid pursuant to this §2.10(b) may not be
reborrowed.
(c) As
soon
as possible after the Initial Funding Date, the Borrower shall borrow
$200,000,000 under the Revolving Credit Facility, and the Borrower shall, on
the
date such loan proceeds are received by it, prepay $200,000,000 of the principal
amount of the Loans. Amounts repaid pursuant to this §2.10(c) may be reborrowed
in accordance with §2.1.
§2.11. Reduction
of Total Commitment.
The
Borrower shall have the right at any time and from time to time upon written
notice to the Administrative Agent not later than 5:00 p.m. (New York time)
on
the reduction or termination date (if prior to December 6, 2006, or one (1)
Business Day notice, if thereafter) to reduce by $10,000,000 or an integral
multiple thereof or terminate entirely the unborrowed portion of the Total
Commitment (including any Reinstated Commitments), whereupon the Commitments
of
the Lenders shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as the case
may be, terminated. Promptly after receiving any notice of the Borrower
delivered pursuant to this §2.11, the Administrative Agent will notify the
Lenders of the substance thereof. No reduction of the Commitments may be
reinstated.
§3. [RESERVED].
§4. CERTAIN
GENERAL PROVISIONS.
§4.1. Funds
for Payments.
(a) All
payments of principal, interest, fees, and any other amounts due hereunder
or
under any of the other Loan Documents shall be made to the Administrative Agent,
for the respective accounts of the Lenders or (as the case may be) the
Administrative Agent, at the Administrative Agent’s Head Office, in each case in
Dollars and in immediately available funds.
(b) All
payments by the Borrower hereunder and under any of the other Loan Documents
shall be made without setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory liens, restrictions or conditions of any nature now
or
hereafter imposed or levied by any jurisdiction or any political subdivision
thereof or taxing or other authority therein unless the Borrower is compelled
by
law to make such deduction or withholding. If any such obligation is imposed
upon the Borrower with respect to any amount payable by it hereunder or under
any of the other Loan Documents, the Borrower shall pay to the Administrative
Agent, for the account of the Lenders or (as the case may be) the Administrative
Agent, on the date on which such amount is due and payable hereunder or under
such other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Lenders to receive the same net amount which the Lenders
would have received on such due date had no such obligation been imposed upon
the Borrower. The Borrower will deliver promptly to the Administrative Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.
§4.2. Computations.
All
computations of interest on the Loans and of other fees to the extent applicable
shall be based on a 360-day year and paid for the actual number of days elapsed.
Except as otherwise provided in the definition of the term “Interest
Period”
with
respect to LIBOR Rate Loans, whenever a payment hereunder or under any of the
other Loan Documents becomes due on a day that is not a Business Day, the due
date for such payment shall be extended to the next succeeding Business Day,
and
interest shall accrue during such extension. The outstanding amount of the
Loans
as reflected on the Note Records from time to time shall constitute prima
facie
evidence
of the principal amount thereof.
§4.3. Inability
to Determine LIBOR Rate.
In the
event, prior to the commencement of any Interest Period relating to any LIBOR
Rate Loan, the Administrative Agent shall reasonably determine that adequate
and
reasonable methods do not exist for ascertaining the LIBOR Rate that would
otherwise determine the rate of interest to be applicable to any LIBOR Rate
Loan
during any Interest Period, the Administrative Agent shall forthwith give notice
of such determination (which
shall be conclusive and binding on the Borrower) to
the
Borrower and the Lenders. In such event (a) any Loan Request with respect to
LIBOR Rate
Loans
shall be automatically withdrawn and shall be deemed a request for Alternate
Base Rate Loans, (b) each LIBOR Rate Loan will automatically, on the last day
of
the then current Interest Period thereof, become a Alternate Base Rate Loan,
and
(c) the obligations of the Lenders to make LIBOR Rate Loans shall be suspended
until the Administrative Agent reasonably determines that the circumstances
giving rise to such suspension no longer exist, whereupon the Administrative
Agent shall so notify the Borrower and the Lenders.
§4.4. Illegality.
Subject
to §§4.10 and 4.11 hereof, but notwithstanding any other provisions herein, if
any present or future law, regulation, treaty or directive or change in the
interpretation or application thereof shall make it unlawful for any Lender
to
make or maintain LIBOR Rate Loans, such Lender shall forthwith give notice
of
such circumstances (which shall be conclusive and binding on the Borrower)
to
the Borrower and the other Lenders and thereupon (a) the commitment of such
Lender to make LIBOR Rate Loans or convert Alternate Base Rate Loans to LIBOR
Rate Loans shall forthwith be suspended and (b) such Lender’s Commitment
Percentage of LIBOR Rate Loans then outstanding shall be converted automatically
to Alternate Base Rate Loans on the last day of each Interest Period applicable
to such LIBOR Rate Loans or within such earlier period as may be required by
law, all until such time as it is no longer unlawful for such Lender to make
or
maintain LIBOR Rate Loans. Subject to §§4.10 and 4.11 hereof, the Borrower
hereby agrees to promptly pay the Administrative Agent for the account of such
Lender, upon demand, any additional amounts necessary to compensate such Lender
for any costs incurred by such Lender in making any conversion required by
this
§4.4 prior to the last day of an Interest Period with respect to a LIBOR Rate
Loan, including any interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder.
§4.5. Additional
Costs, Etc.
Subject
to §§4.10 and 4.11 hereof, if any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at
any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Administrative Agent by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
(a) subject
any Lender or the Administrative Agent to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this Agreement,
the
other Loan Documents, such Lender’s Commitment or the Loans (other than taxes
based upon or measured by the income or profits of such Lender or the
Administrative Agent), or
(b) materially
change the basis of taxation (except for changes in taxes on income or profits)
of payments to any Lender of the principal of or the interest on any Loans
or
any other amounts payable to the Administrative Agent or any Lender under this
Agreement or the other Loan Documents, or
(c) impose
or
increase or render applicable (other than to the extent specifically provided
for elsewhere in this Agreement) any special deposit, reserve, assessment,
liquidity, capital adequacy or other similar requirements (whether or not having
the force of law) against assets held by, or deposits in or for the account
of,
or loans by, or letters of credit issued by, or commitments of an office of
any
Lender, or
(d) impose
on
any Lender or the Administrative Agent any other conditions or requirements
with
respect to this Agreement, the other Loan Documents, the Loans, such Lender’s
Commitment, or any class of loans, letters of credit or commitments of which
any
of the Loans or such Lender’s Commitment forms a part;
and
the
result of any of the foregoing is:
(i) to
increase the cost to any Lender of making, funding, issuing, renewing, extending
or maintaining any of the Loans or such Lender’s Commitment, or
(ii) to
reduce the amount of principal, interest, or other amount payable to such Lender
or the Administrative Agent hereunder on account of such Lender’s Commitment or
any of the Loans, or
(iii) to
require such Lender or the Administrative Agent to make any payment or to forego
any interest or other sum payable hereunder, the amount of which payment or
foregone interest or other sum is calculated by reference to the gross amount
of
any sum receivable or deemed received by such Lender or the Administrative
Agent
from the Borrower hereunder,
then;
and
in each such case arising or occurring in the immediately preceding 365 days
from such demand, the Borrower will, within thirty (30) days after demand made
by such Lender or (as the case may be) the Administrative Agent at any time
and
from time to time and as often as the occasion therefor may arise, within the
shorter of such maximum allowable period as permitted by law or such Lender’s
internal policies (but no longer than one year or the occurrence of the Maturity
Date, if sooner) pay to such Lender such additional amounts as such Lender
shall
determine in good faith to be sufficient to compensate such Lender for such
additional cost, reduction, payment or foregone interest or other sum,
provided
that
such Lender is generally imposing similar charges on its other similarly
situated borrowers.
§4.6. Capital
Adequacy.
Subject
to §§4.10 and 4.11 hereof, if after the date hereof any Lender or the
Administrative Agent determines in good faith that (i) the adoption of or change
in any law, governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law) regarding capital requirements for
banks or bank holding companies or any change in the interpretation or
application thereof by a court or governmental authority with appropriate
jurisdiction, or (ii) compliance by such Lender or
the
Administrative Agent or any Person controlling such Lender or the Administrative
Agent with any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) of any such Person regarding
capital adequacy, has the effect of reducing the return on such Lender’s or the
Administrative Agent’s Commitment with respect to any Loans to a level below
that which such Lender or the Administrative Agent could have achieved but
for
such adoption, change or compliance (taking into consideration such Lender’s or
the Administrative Agent’s then existing policies with respect to capital
adequacy and assuming full utilization of such entity’s capital) by any amount
deemed by such Lender or (as the case may be) the Administrative Agent to be
material, then such Lender or the Administrative Agent may notify the Borrower
of such fact. To the extent that the amount of such reduction in the return
on
capital is not reflected in the Alternate Base Rate, the Borrower agrees to
pay
such Lender or (as the case may be) the Administrative Agent the amount of
such
reduction in the return on capital as and when such reduction is determined,
within thirty (30) days after presentation by such Lender or (as the case may
be) the Administrative Agent of a certificate in accordance with §4.7 hereof
which certificate shall be presented within the shorter of such maximum
allowable period as permitted by law or such Lender’s internal policies (but no
longer than one year or the occurrence of the Maturity Date, if sooner). Each
Lender shall allocate such cost increases among its customers in good faith
and
on an equitable basis.
§4.7. Certificate.
A
certificate setting forth any additional amounts payable pursuant to §§4.5 or
4.6 and a brief explanation of such amounts which are due, submitted by any
Lender or the Administrative Agent to the Borrower shall be prima
facie
evidence
that such amounts are due and owing.
§4.8. Indemnity.
In
addition to the other provisions of this Agreement regarding such matters,
the
Borrower agrees to indemnify the Administrative Agent and each Lender and to
hold the Administrative Agent and each Lender harmless from and against any
loss, cost or expense (including LIBOR Breakage Costs, but excluding any loss
of
Applicable Margin on the relevant Loans) that the Administrative Agent or such
Lender may sustain or incur as a consequence of (a) the failure by the Borrower
to pay any principal amount of or any interest on any LIBOR Rate Loans as and
when due and payable, including any such loss or expense arising from interest
or fees payable by the Administrative Agent or such Lender to lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans, (b) the failure by
the
Borrower to make a borrowing or conversion after the Borrower has given or
is
deemed pursuant to §2.6(c) to have given a Completed Loan Request for a LIBOR
Rate Loan or a Conversion Request to convert a Alternate Base Rate Loan into
a
LIBOR Rate Loan, and (c) the making of any payment of a LIBOR Rate Loan or
the
making of any conversion of any such Loan to a Alternate Base Rate Loan on
a day
that is not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by the Administrative Agent or a Lender
to
lenders of funds obtained by it in order to maintain any such LIBOR Rate
Loans.
§4.9. Interest
During Event of Default.
During
the continuance of an Event of Default, outstanding principal and (to the extent
permitted by applicable law) interest on the
Loans
and
all other amounts payable hereunder or under any of the other Loan Documents
shall bear interest at a rate per annum equal to four percent (4%) above the
rate otherwise then in effect until such amount shall be paid in full (after
as
well as before judgment).
§4.10. Reasonable
Efforts to Mitigate.
Each
Lender agrees that as promptly as practicable after it becomes aware of the
occurrence of an event or the existence of a condition that would cause it
to be
affected under §§4.4, 4.5 or 4.6, such Lender will give notice thereof to the
Borrower, with a copy to the Administrative Agent and, to the extent so
requested by the Borrower and not inconsistent with regulatory policies
applicable to such Lender, such Lender shall use reasonable efforts and take
such actions as are reasonably appropriate (including the changing of its
lending office or branch) if as a result thereof the additional moneys which
would otherwise be required to be paid to such Lender pursuant to such sections
would be reduced other than for de minimis amounts, or the illegality or other
adverse circumstances which would otherwise require a conversion of such Loans
or result in the inability to make such Loans pursuant to such sections would
cease to exist, and in each case if, as determined by such Lender in its sole
discretion, the taking such actions would not adversely affect such
Loans.
§4.11. Replacement
of Lenders.
If
any
Lender (an “Affected
Lender”)
(i)
makes demand upon the Borrower for (or if the Borrower is otherwise required
to
pay) amounts pursuant to §§4.4, 4.5 or 4.6, or (ii) is unable to make or
maintain LIBOR Rate Loans as a result of a condition described in §4.4, the
Borrower may, within 90 days of receipt of such demand, notice (or the
occurrence of such other event causing the Borrower to be required to pay such
compensation or causing §4.4 to be applicable) as the case may be, by notice (a
“Replacement
Notice”)
in
writing to the Administrative Agent and such Affected Lender (A) request the
Affected Lender to cooperate with the Borrower in obtaining a replacement lender
satisfactory to the Administrative Agent and the Borrower (the “Replacement
Lender”);
(B)
request the non-Affected Lenders to acquire and assume all of the Affected
Lender’s Loans and Commitment, as provided herein, but none of such Lenders
shall be under an obligation to do so; or (C) designate a Replacement Lender
which is an Eligible Assignee and is reasonably satisfactory to the
Administrative Agent other than when an Event of Default has occurred and is
continuing and absolutely satisfactory to the Administrative Agent when an
Event
of Default has occurred and is continuing. If any satisfactory Replacement
Lender shall be obtained, and/or any of the non-Affected Lenders shall agree
to
acquire and assume all of the Affected Lender’s Loans and Commitment, and/or
participate in Letters of Credit, then such Affected Lender shall assign, in
accordance with §18, all of its Commitment, Loans, Notes and other rights and
obligations under this Agreement and all other Loan Documents to such
Replacement Lender or non-Affected Lenders, as the case may be, in exchange
for
payment of the principal amount so assigned and all interest and fees accrued
on
the amount so assigned, plus all other Obligations then due and payable to
the
Affected Lender; provided,
however,
that
(x) such assignment shall be in accordance with the provisions of §18, shall be
without recourse, representation or warranty and shall be on terms and
conditions reasonably satisfactory to such Affected Lender and such Replacement
Lender and/or non-Affected Lenders, as the case may be, and (y) prior to any
such
assignment,
the Borrower shall have paid to such Affected Lender all amounts properly
demanded and unreimbursed under §§4.4, 4.5, 4.6 and 4.8.
§5. GUARANTIES.
§5.1. Guaranties.
Each of
the Guarantors will jointly and severally guaranty all of the Obligations
pursuant to its Guaranty. The Obligations are full recourse obligations of
the
Borrower and each Guarantor, and all of the respective assets and properties
of
the Borrower and each such Guarantor shall be available for the payment in
full
in cash and performance of the Obligations (subject to Permitted Liens and
senior claims enforceable as senior in accordance with applicable law, without
the Lenders hereby agreeing to any such senior claim that is otherwise
prohibited by this Agreement). Other than during the continuance of a Default
or
Event of Default, at the request of the Borrower, the Guaranty of any Subsidiary
Guarantor shall be released by the Administrative Agent if and when all of
the
Real Estate owned or ground-leased by such Subsidiary Guarantor shall cease
(not
thereby creating a Default or Event of Default) to be owned by such Subsidiary
Guarantor or by any other Borrower, Guarantor, Subsidiary or other Affiliate
of
any of same, provided
the
foregoing shall never permit the release of MCRC.
§5.2. Subsidiary
Guaranty Proceeds.
(a)
Notwithstanding any provision of this Agreement or any other Loan Document
to
the contrary, the Administrative Agent and the Lenders agree with the Borrower
that any funds, claims, or distributions actually received by the Administrative
Agent or any Lender for the account of any Lender as a result of the enforcement
of, or pursuant to a claim relating solely to the Loans under, any Subsidiary
Guaranty, net of the Administrative Agent’s and the Lenders’ expenses of
collection thereof (such net amount, “Subsidiary
Guaranty Proceeds”),
shall
be made available for distribution equally and ratably (in proportion of the
aggregate amount of principal, interest and other amounts then owed in respect
of the Obligations or of the issuance of Public Debt, as the case may be) among
the Administrative Agent, the Lenders and the trustee or trustees of any Public
Debt so long as the Administrative Agent receives written notice of the amounts
then owed under the Public Debt; provided that
such
agreement to distribute Subsidiary Guaranty Proceeds shall not be effective
if
the holders of the Public Debt have the benefit of guaranties at any time from
the Subsidiaries of the Borrower and have not made a reciprocal agreement to
share the proceeds of such guaranties with the Lenders. The Administrative
Agent
is hereby authorized, by the Borrower, by each Lender and by the Borrower on
behalf of each Subsidiary Guarantor to make such Subsidiary Guaranty Proceeds
available pursuant to the immediately preceding sentence. No Lender shall have
any interest in any amount paid over by the Administrative Agent or any other
Lender to the trustee or trustees in respect of any Public Debt (or to the
holders thereof) pursuant to the foregoing authorization. This §5.2 shall apply
solely to Subsidiary Guaranty Proceeds, and not to any payments, funds, claims
or distributions received by the Administrative Agent or any Lender directly
or
indirectly from Borrower or any other Person (including a Subsidiary Guarantor)
other than from a Subsidiary Guarantor pursuant to the enforcement of, or the
making of a claim relating solely to the Loans under, a Subsidiary Guaranty.
The
Borrower is aware of the terms of the Subsidiary Guarantees, and specifically
understands and agrees
with
the
Administrative Agent, and the Lenders that, to the extent Subsidiary Guaranty
Proceeds are distributed to holders of Public Debt or their respective trustees,
such Subsidiary Guarantor has agreed that the Obligations under this Agreement
and any other Loan Document will not be deemed reduced by any such
distributions, and each Subsidiary Guarantor shall continue to make payments
pursuant to its Subsidiary Guaranty until such time as the Obligations have
been
paid in full (and the Commitments have been terminated).
(b) Nothing
contained in this §5.2 shall be deemed (i) to limit, modify, or alter the rights
of the Administrative Agent or any of the Lenders under any Subsidiary Guaranty
or other Guaranty, (ii) to subordinate the Obligations to any Public Debt,
or
(iii) to give any holder of Public Debt (or any trustee for such holder) any
rights of subrogation.
(c) This
§5.2, and each Guaranty, are for the sole benefit of the Administrative Agent,
the Lenders and their respective successors and assigns. Nothing contained
herein or in any Guaranty shall be deemed for the benefit of any holder of
Public Debt, or any trustee for such holder, nor shall anything contained herein
or therein be construed to impose on the Administrative Agent or any Lender
any
fiduciary duties, obligations or responsibilities to the holders of any Public
Debt or their trustees (including, but not limited to, any duty to pursue any
Guarantor for payment under its Subsidiary Guaranty).
§6. REPRESENTATIONS
AND WARRANTIES.
The
Borrower for itself and for each Guarantor insofar as any such statements relate
to such Guarantor represents and warrants to the Administrative Agent and the
Lenders all of the statements contained in this §6.
§6.1. Authority;
Etc.
(a) Organization;
Good Standing.
(i) MCRLP
is
a limited partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware; each Subsidiary of MCRLP that owns
Real
Estate is duly organized or formed, validly existing and in good standing as
a
corporation or a partnership or other entity, as the case may be, under the
laws
of the state of its organization or formation; the Borrower and each of the
Borrower’s Subsidiaries that owns Real Estate has all requisite partnership or
corporate or other entity, as the case may be, power to own its respective
properties and conduct its respective business as now conducted and as presently
contemplated; and the Borrower and each of the Borrower’s Subsidiaries that owns
Real Estate is in good standing as a foreign entity and is duly authorized
to do
business in the jurisdictions where the Unencumbered Properties or other Real
Estate owned or ground-leased by it are located and in each other jurisdiction
where such qualification is necessary except where a
failure
to be so qualified in such other jurisdiction would not have a materially
adverse effect on any of their respective businesses, assets or financial
conditions.
(ii) MCRC
is a
corporation duly organized, validly existing and in good standing under the
laws
of the State of Maryland; each Subsidiary of MCRC that owns Real Estate is
duly
organized or formed, validly existing and in good standing as a corporation
or
partnership or other entity, as the case may be, under the laws of the state
of
its organization or formation; MCRC and each of its Subsidiaries that owns
Real
Estate has all requisite corporate or partnership or other entity, as the case
may be, power to own its respective properties and conduct its respective
business as now conducted and as presently contemplated; and MCRC and each
of
its Subsidiaries that owns Real Estate is in good standing as a foreign entity
and is duly authorized to do business in the jurisdictions where such
qualification is necessary (including, as to MCRC, in the State of New Jersey)
except where a failure to be so qualified in such other jurisdiction would
not
have a materially adverse effect on the business, assets or financial condition
of MCRC or such Subsidiary.
(iii) As
to
each subsequent Guarantor, a provision similar, as applicable, to (a) (i) or
(ii) above shall be included in each such subsequent Guarantor’s Subsidiary
Guaranty, and the Borrower shall be deemed to make for itself and on behalf
of
each such subsequent Guarantor a representation and warranty as to such
provision regarding such subsequent Guarantor.
(b) Capitalization.
(i)
The
outstanding equity of MCRLP is comprised of a general partner interest and
limited partner interests, all of which have been duly issued and are
outstanding and fully paid and non-assessable as set forth in Schedule
6.1(b)
hereto,
as of the Closing Date. All of the issued and outstanding general partner
interests of MCRLP are owned and held of record by MCRC. Except as disclosed
in
Schedule 6.1(b)
hereto,
as of the Closing Date there are no outstanding securities or agreements
exchangeable for or convertible into or carrying any rights to acquire any
general partnership interests in MCRLP. Except as disclosed in Schedule 6.1(b),
as of
the Closing Date, there are no outstanding commitments, options, warrants,
calls
or other agreements (whether written or oral) binding on MCRLP or MCRC which
require or could require MCRLP or MCRC to sell, grant, transfer, assign,
mortgage, pledge or otherwise dispose of any general partnership interests
of
MCRLP. Except as set forth in the Agreement
of
Limited Partnership of MCRLP, no general partnership interests of MCRLP are
subject to any restrictions on transfer or any partner agreements, voting
agreements, trust deeds, irrevocable proxies, or any other similar agreements
or
interests (whether written or oral).
(ii) As
of the
Closing Date, the authorized capital stock of, or any other equity interests
in,
each of MCRC’s Subsidiaries are as set forth in Schedule
6.1(b),
and the
issued and outstanding voting and non-voting shares of the common stock of
each
of MCRC’s Subsidiaries, and all of the other equity interests in such
Subsidiaries, all of which have been duly issued and are outstanding and fully
paid and non-assessable, are owned and held of record as set forth in
Schedule
6.1(b).
Except
as disclosed in Schedule
6.1(b),
as of
the Closing Date there are no outstanding securities or agreements exchangeable
for or convertible into or carrying any rights to acquire any equity interests
in any of MCRC’s Subsidiaries, and there are no outstanding options, warrants,
or other similar rights to acquire any shares of any class in the capital of
or
any other equity interests in any of MCRC’s Subsidiaries. Except as disclosed in
Schedule
6.1(b),
as of
the Closing Date there are no outstanding commitments, options, warrants, calls
or other agreements or obligations (whether written or oral) binding on any
of
MCRC’s Subsidiaries to issue, sell, grant, transfer, assign, mortgage, pledge or
otherwise dispose of any shares of any class in the capital of or other equity
interests in any of MCRC’s Subsidiaries. Except as disclosed in Schedule
6.1(b),
as of
the Closing Date, no shares of, or equity interests in, any of MCRC’s
Subsidiaries held by MCRC are subject to any restrictions on transfer pursuant
to any of MCRC’s Subsidiaries’ applicable partnership, charter, by-laws or any
shareholder agreements, voting agreements, voting trusts, trust agreements,
trust deeds, irrevocable proxies or any other similar agreements or instruments
(whether written or oral).
(c) Due
Authorization.
The
execution, delivery and performance of this Agreement and the other Loan
Documents to which the Borrower or any of the Guarantors is a party and the
transactions contemplated hereby and thereby (i) are within the authority of
the
Borrower and such Guarantor, (ii) have been duly authorized by all necessary
proceedings on the part of the Borrower or such Guarantor and any general
partner or other controlling Person thereof, (iii) do not conflict with or
result in any breach or contravention of any provision of law, statute, rule
or
regulation to which the Borrower or such Guarantor is subject or any judgment,
order, writ, injunction, license or permit applicable to the Borrower or such
Guarantor, (iv) do not conflict with any provision of the agreement of limited
partnership, any certificate of limited partnership, the charter documents
or
by-laws of the Borrower or such Guarantor or any general partner or other
controlling Person thereof, and (v) do not contravene any provisions of, or
constitute a default, Default or Event of Default hereunder or a failure to
comply with any term, condition or provision of, any other
agreement,
instrument, judgment, order, decree, permit, license or undertaking binding
upon
or applicable to the Borrower or such Guarantor or any of the Borrower’s or such
Guarantor’s properties (except for any such failure to comply under any such
other agreement, instrument, judgment, order, decree, permit, license, or
undertaking as would not materially and adversely affect the condition
(financial or otherwise), properties, business or results of operations of
the
Borrower, the Operating Subsidiaries or any Guarantor) or result in the creation
of any mortgage, pledge, security interest, lien, encumbrance or charge upon
any
of the properties or assets of the Borrower, the Operating Subsidiaries or
any
Guarantor.
(d) Enforceability.
Each of
the Loan Documents to which the Borrower or any of the Guarantors is a party
has
been duly executed and delivered and constitutes the legal, valid and binding
obligations of the Borrower and each such Guarantor, as the case may be, subject
only to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting generally
the
enforcement of creditors’ rights and to the fact that the availability of the
remedy of specific performance or injunctive relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
§6.2. Governmental
Approvals.
The
execution, delivery and performance by the Borrower of this Agreement and by
the
Borrower and each Guarantor of the other Loan Documents to which the Borrower
or
such Guarantor is a party and the transactions contemplated hereby and thereby
do not require (i) the approval or consent of any governmental agency or
authority other than those already obtained, or (ii) filing with any
governmental agency or authority, other than filings which will be made with
the
SEC when and as required by law.
§6.3. Title
to Properties; Leases.
The
Borrower, the Guarantors and their respective Subsidiaries that own Real Estate
each has good title to all of its respective Real Estate purported to be owned
by it, including, without limitation, that:
(a) As
of the
Closing Date (with respect to Unencumbered Properties designated as such on
the
Closing Date) or the date of designation as an Unencumbered Property (with
respect to Unencumbered Properties acquired and/or designated as such after
the
Closing Date), and in each case to its knowledge thereafter, (i) the Borrower
or
a Guarantor holds good and clear record and marketable fee simple or leasehold
title to the Unencumbered Properties, subject to no rights of others, including
any mortgages, conditional sales agreements, title retention agreements, liens
or encumbrances, except for Permitted Liens and, in the case of any
ground-leased Unencumbered Property, the terms of such ground lease (which
shall
be an Eligible Ground Lease), as the same may then or thereafter be amended
from
time to time in a manner consistent with the requirements for an Eligible Ground
Lease and (ii) the Unencumbered Properties satisfy the requirements for an
Unencumbered Property set forth in the definition thereof. Schedule
6.3(a)
sets
forth a list of all Unencumbered Properties as of the Closing
Date.
(b) The
Borrower and each of the then Guarantors will, as of the Closing Date, own
all
of the assets as reflected in the financial statements of the Borrower and
MCRC
described in §6.4 or acquired in fee title (or, if Real Estate, leasehold title
under an Eligible Ground Lease) since the date of such financial statements
(except property and assets sold or otherwise disposed of in the ordinary course
of business since that date).
(c) As
of the
Closing Date, each of the direct or indirect interests of MCRC, the Borrower
or
MCRC’s other Subsidiaries in any Partially-Owned Entity that owns Real Estate is
set forth on Schedule
6.3(c)
hereto,
including the type of entity in which the interest is held, the percentage
interest owned by MCRC, the Borrower or such Subsidiary in such entity, the
capacity in which MCRC, the Borrower or such Subsidiary holds the interest,
and
MCRC’s, the Borrower’s or such Subsidiary’s ownership interest therein.
Schedule
6.3(c)
will be
updated quarterly at the time of delivery of the financial statements pursuant
to §7.4(b).
§6.4. Financial
Statements.
The
following financial statements have been furnished to each of the
Lenders:
(a) The
audited consolidated balance sheet of MCRC and its Subsidiaries (including,
without limitation, MCRLP and its Subsidiaries) as of December 31, 2005 and
their related consolidated income statements for the fiscal year ended
December 31, 2005. Such balance sheet and income statements have been
prepared in accordance with GAAP and fairly present the financial condition
of
MCRC and its Subsidiaries as of the close of business on the date thereof and
the results of operations for the fiscal year then ended. There are no
contingent liabilities of MCRC as of such dates involving material amounts,
known to the officers of the Borrower or of MCRC, not disclosed in said
financial statements and the related notes thereto.
(b) The
SEC
Filings.
§6.5 Fiscal
Year.
MCRC,
the Borrower and its Subsidiaries each has a fiscal year which is the twelve
months ending on December 31 of each calendar year, unless changed in accordance
with §8.8 hereof.
§6.6. Franchises,
Patents, Copyrights, Etc.
The
Borrower, each Guarantor and each of their respective Subsidiaries that owns
Real Estate possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of their respective businesses substantially as now conducted
without known material conflict with any rights of others, including all
Permits.
§6.7. Litigation.
Except
as stated on Schedule
6.7,
as
updated at the time of each compliance certificate, there are no actions, suits,
proceedings or investigations of any kind pending or, to the knowledge of the
Borrower and the Guarantors, threatened against the Borrower, any Guarantor
or
any of their respective Subsidiaries before any court, tribunal
or
administrative
agency or board that, if adversely determined, could reasonably be expected,
either individually or in the aggregate, to have a Material Adverse Effect
or
materially impair the rights of the Borrower or such Guarantor to carry on
their
respective businesses substantially as now conducted by them, or result in
any
substantial liability not adequately covered by insurance, or for which adequate
reserves are not maintained, as reflected in the applicable financial statements
of MCRLP and MCRC, or which question the validity of this Agreement or any
of
the other Loan Documents, or any action taken or to be taken pursuant hereto
or
thereto.
§6.8. No
Materially Adverse Contracts, Etc.
None of
the Borrower, any Guarantor or any of their respective Subsidiaries is subject
to any charter, corporate, partnership or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is reasonably expected
to have a Material Adverse Effect. None of the Borrower, any Guarantor or any
of
their respective Subsidiaries that owns Real Estate is a party to any contract
or agreement that has or is reasonably expected, in the judgment of their
respective officers, to have a Material Adverse Effect.
§6.9. Compliance
With Other Instruments, Laws, Etc.
None of
the Borrower, any Guarantor or any of their respective Subsidiaries that owns
Real Estate is in violation of any provision of its partnership agreement,
charter documents, bylaws or other organizational documents, as the case may
be,
or any respective agreement or instrument to which it is subject or by which
it
or any of its properties (including, in the case of MCRC and MCRLP, any of
their
respective Subsidiaries) are bound or any decree, order, judgment, statute,
license, rule or regulation, in any of the foregoing cases in a manner that
could reasonably be expected to result, individually or in the aggregate, in
the
imposition of substantial penalties or have a Material Adverse
Effect.
§6.10. Tax
Status.
(a) (i)
Each
of the Borrower, the Guarantors and their respective Subsidiaries (A) has timely
made or filed all federal, state and local income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject,
(B) has paid all taxes and other governmental assessments and charges shown
or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (C) has set
aside on its books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply, and (ii) there are no unpaid taxes in an aggregate amount
in
excess of $10,000,000 at any one time claimed to be due by the taxing authority
of any jurisdiction for which payment is required to be made in accordance
with
the provisions of §7.9 and has not been timely made, and the respective officers
of the Borrower and the Guarantors and their respective Subsidiaries know of
no
basis for any such claim.
(b) To
the
Borrower’s knowledge, each Partially-Owned Entity (i) has timely made or filed
all federal, state and local income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject, (ii) has
paid
all taxes and
other
governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings and (iii) has set aside on its books provisions
reasonably adequate for the payment of all taxes for periods subsequent to
the
periods to which such returns, reports or declarations apply. To the best of
the
Borrower’s knowledge, except as otherwise disclosed in writing to the
Administrative Agent, there are no unpaid taxes in an aggregate amount in excess
of $10,000,000 at any one time claimed to be due by the taxing authority of
any
jurisdiction for which payment is required to be made in accordance with the
provisions of §7.9 and has not been timely made by any Partially-Owned Entity,
and the officers of the Borrower know of no basis for any such
claim.
§6.11. No
Event of Default; No Materially Adverse Changes.
No
Default or Event of Default has occurred and is continuing. Since September
30,
2006 there has occurred no materially adverse change in the financial condition
or business of MCRC and its Subsidiaries or MCRLP and its Subsidiaries as shown
on or reflected in the SEC Filings or the consolidated balance sheet of MCRC
and
its Subsidiaries as at September 30, 2006, or the consolidated statement of
income for the fiscal quarter then ended, other than changes in the ordinary
course of business that have not had a Material Adverse Effect on the Borrower,
Guarantors and their respective Subsidiaries, taken as a whole.
§6.12. Investment
Company Acts; Public Utility Holding Company Act.
None of
the Borrower, any Guarantor or any of their respective Subsidiaries is (a)
an
“investment company”, or an “affiliated company” or a “principal underwriter” of
an “investment company”, as such terms are defined in the Investment Company Act
of 1940 or (b) subject to regulation as a “holding company” or a “public-utility
company” under the Public Utility Holding Act of 2005 and the regulations
thereunder (“PUHCA 2005”), or to accounting or cost-allocation regulation under
PUHCA 2005, or to regulation as a “public utility” under the Federal Power Act
of 1935, as amended, and the regulations thereunder.
§6.13. Absence
of UCC Financing Statements, Etc.
Except
for Permitted Liens, as of the Closing Date there will be no financing
statement, security agreement, chattel mortgage, real estate mortgage, equipment
lease, financing lease, option, encumbrance or other document filed or recorded
with any filing records, registry, or other public office, that purports to
cover, affect or give notice of any present or possible future lien or
encumbrance on, or security interest in, any Unencumbered Property. Neither
the
Borrower nor any Guarantor has pledged or granted any lien on or security
interest in or otherwise encumbered or transferred any of their respective
interests in any Subsidiary (including in the case of MCRC, its interests in
MCRLP, and in the case of the Borrower, its interests in the Operating
Subsidiaries) or in any Partially-Owned Entity.
§6.14. Absence
of Liens
The
Borrower or a Guarantor is the owner of or the holder of a ground leasehold
interest under an Eligible Ground Lease in the Unencumbered Properties free
from
any lien, security interest, encumbrance and any other claim or demand, except
for Permitted Liens.
§6.15. Certain
Transactions.
Except
as set forth on Schedule
6.15
or for
transactions that have been determined by the Board of Directors of the relevant
Borrower, Guarantor or Subsidiary (or its respective general partner) to be
on
terms as favorable to such Person as in an arms-length transaction with a third
party, none of the officers, partners, directors, or employees of the Borrower
or any Guarantor or any of their respective Subsidiaries is presently a party
to
any transaction with the Borrower, any Guarantor or any of their respective
Subsidiaries (other than for or in connection with services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of
real
or personal property to or from, or otherwise requiring payments to or from
any
officer, partner, director or such employee or, to the knowledge of the
Borrower, any corporation, partnership, trust or other entity in which any
officer, partner, director, or any such employee or natural Person related
to
such officer, partner, director or employee or other Person in which such
officer, partner, director or employee has a direct or indirect beneficial
interest has a substantial interest or is an officer, director, trustee or
partner.
§6.16. Employee
Benefit Plans.
§6.16.1 In
General.
Each
Employee Benefit Plan and each Guaranteed Pension Plan has been maintained
and
operated in compliance in all material respects with the provisions of ERISA
and, to the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as required by §412 of ERISA.
The Borrower has heretofore delivered to the Administrative Agent the most
recently completed annual report, Form 5500, with all required attachments,
and
actuarial statement required to be submitted under §103(d) of ERISA, with
respect to each Guaranteed Pension Plan.
§6.16.2 Terminability
of Welfare Plans.
No
Employee Benefit Plan, which is an employee welfare benefit plan within the
meaning of §3(1) or §3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of ERISA or
the
applicable state insurance laws. The Borrower may terminate each such Plan
at
any time (or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of the Borrower without material
liability to any Person other than for claims arising prior to
termination.
§6.16.3 Guaranteed
Pension Plans.
Each
contribution required to be made to a Guaranteed Pension Plan, whether required
to be made to avoid the incurrence of an accumulated funding deficiency, the
notice or lien provisions of §302(f) of ERISA, or otherwise, has been
timely
made.
No
waiver of an accumulated funding deficiency or extension of amortization periods
has been received with respect to any Guaranteed Pension Plan, and neither
the
Borrower nor any Guarantor nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a Guaranteed Pension Plan pursuant
to §307 of ERISA or §401(a)(29) of the Code. No liability to the PBGC (other
than required insurance premiums, all of which have been paid) has been incurred
by the Borrower nor any Guarantor nor any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Reportable Event (other
than an ERISA Reportable Event as to which the requirement of 30 days notice
has
been waived), or any other event or condition which presents a material risk
of
termination of any Guaranteed Pension Plan by the PBGC. Based on the latest
valuation of each Guaranteed Pension Plan (which in each case occurred within
twelve months of the date of this representation), and on the actuarial methods
and assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of §4001 of ERISA did
not exceed the aggregate value of the assets of all such Guaranteed Pension
Plans, disregarding for this purpose the benefit liabilities and assets of
any
Guaranteed Pension Plan with assets in excess of benefit liabilities, by more
than $500,000.
§6.16.4 Multiemployer
Plans.
Neither
the Borrower nor any Guarantor nor any ERISA Affiliate has incurred any material
liability (including secondary liability) to any Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan under §4201 of
ERISA or as a result of a sale of assets described in §4204 of ERISA. Neither
the Borrower nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of §4241 or
§4245 of ERISA or is at material risk of entering reorganization or becoming
insolvent, or that any Multiemployer Plan intends to terminate or has been
terminated under §4041A of ERISA.
§6.17. Regulations
U and X.
The
proceeds of the Loans shall be used for the purposes described in §7.12. No
portion of any Loan is to be used for the purpose of purchasing or carrying
any
“margin security” or “margin stock” as such terms are used in Regulations U and
X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
221
and 224, provided
the
Borrower may purchase MCRC stock as long as it does not at any time cause the
Lenders to be in violation of Regulations U and X and such action does not
otherwise constitute a Default or an Event of Default.
§6.18. Environmental
Compliance.
The
Borrower has caused environmental assessments to be conducted and/or taken
other
steps to investigate the past and present environmental condition and usage
of
the Real Estate and the operations conducted thereon. Based upon such
assessments and/or investigation, except as set forth on Schedule
6.18
or in
any update to Schedule
6.18
in the
case of any new Real Estate that becomes an
Unencumbered
Property under this Agreement after the Closing Date, to the Borrower’s
knowledge, the Borrower represents and warrants that as of the Closing Date
as
to all Real Estate held by it as of the Closing Date and as of the date any
new
Real Estate becomes an Unencumbered Property under this Agreement as to such
new
Unencumbered Property:
(a) None
of
the Borrower, any Guarantor, any of their respective Subsidiaries or any
operator of the Real Estate or any portion thereof, or any operations thereon
is
in violation, or alleged violation (in writing), of any judgment, order, law,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and Recovery
Act (“RCRA”),
the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
as
amended (“CERCLA”),
the
Superfund Amendments and Reauthorization Act of 1986 (“SARA”),
the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control
Act, or any state or local statute, regulation, ordinance or order relating
to
health, safety or the environment (hereinafter “Environmental
Laws”),
which
violation or alleged violation (in writing) has, or its remediation would have,
by itself or when aggregated with all such other violations or alleged
violations, a Material Adverse Effect or constitutes a Disqualifying
Environmental Event.
(b) None
of
the Borrower, any Guarantor or any of their respective Subsidiaries has received
notice from any third party, including, without limitation, any federal, state
or local governmental authority, (i) that it has been identified by the United
States Environmental Protection Agency (“EPA”)
as a
potentially responsible party under CERCLA with respect to a site listed on
the
National Priorities List, 40 C.F.R. Part 300 Appendix B (1986), (ii) that any
hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances as
defined by 42 U.S.C. § 9601(14), any pollutant or contaminant as defined by 42
U.S.C. §9601(33) or any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws (“Hazardous
Substances”)
which
it has generated, transported or disposed of has been found at any site at
which
a federal, state or local agency or other third party has conducted or has
ordered that the Borrower, any Guarantor or any of their respective Subsidiaries
conduct a remedial investigation, removal or other response action pursuant
to
any Environmental Law, or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative proceeding
(in each case, contingent or otherwise) arising out of any third party’s
incurrence of costs, expenses, losses or damages of any kind whatsoever in
connection with the release of Hazardous Substances; which event described
in
any such notice would have a Material Adverse Effect or constitutes a
Disqualifying Environmental Event.
(c) (i)
No
portion of the Real Estate has been used for the handling, processing, storage
or disposal of Hazardous Substances except in accordance with applicable
Environmental Laws; and no underground tank or other underground storage
receptacle for Hazardous Substances is located on any portion of any Real Estate
except in accordance with applicable Environmental Laws, (ii) in the course
of
any activities conducted by the Borrower, the Guarantors, their respective
Subsidiaries or to the
knowledge
of the Borrower, without any independent inquiry other than as set forth in
the
environmental assessments, the operators of the Real Estate, or any ground
or
space tenants on any Real Estate, no Hazardous Substances have been generated
or
are being used on such Real Estate except in accordance with applicable
Environmental Laws, (iii) there has been no present or past releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping (a “Release”)
or
threatened Release of Hazardous Substances on, upon, into or from the Real
Estate, (iv) to the knowledge of the Borrower without any independent inquiry
other than as set forth in the environmental assessments, there have been no
Releases on, upon, from or into any real property in the vicinity of any of
the
Real Estate which, through soil or groundwater contamination, may have come
to
be located on such Real Estate, and (v) any Hazardous Substances that have
been
generated by the Borrower or a Guarantor or any of their respective Subsidiaries
at any of the Real Estate have been transported off-site only by carriers having
an identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required under
applicable Environmental Laws; any of which events described in clauses (i)
through (v) above would have a Material Adverse Effect, or constitutes a
Disqualifying Environmental Event.
(d) By
virtue
of the use of the Loans proceeds contemplated hereby, or as a condition to
the
effectiveness of any of the Loan Documents, none of the Borrower, any Guarantor
or any of the Real Estate is subject to any applicable Environmental Law
requiring the performance of Hazardous Substances site assessments, or the
removal or remediation of Hazardous Substances, or the giving of notice to
any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement.
§6.19. Subsidiaries.
As of
the Closing Date, Schedule
6.19
sets
forth all of the respective Subsidiaries of MCRC or MCRLP and any other
Guarantor, and Schedule
6.19
will be
updated annually at the time of delivery of the financial statements pursuant
to
§7.4(a) to reflect any changes, including subsequent Guarantor and its
Subsidiaries, if any.
§6.20. Loan
Documents.
All of
the representations and warranties of the Borrower and the Guarantors made
in
this Agreement and in the other Loan Documents or any document or instrument
delivered to the Administrative Agent or the Lenders pursuant to or in
connection with any of such Loan Documents are true and correct in all material
respects and do not include any untrue statement of a material fact or omit
to
state a material fact required to be stated or necessary to make such
representations and warranties not materially misleading.
§6.21. REIT
Status.
MCRC
has not taken any action that would prevent it from maintaining its
qualification as a REIT or from maintaining such qualification at all times
during the term of the Loans.
§6.22. Subsequent
Guarantors. The
foregoing representations and warranties in §6.3 through §6.20, as the same are
true, correct and applicable to Guarantors existing on the
Closing
Date, shall be true, correct and applicable to each subsequent Guarantor in
all
material respects as of the date it becomes a Guarantor.
§7. AFFIRMATIVE
COVENANTS OF THE BORROWER AND THE GUARANTORS.
The
Borrower for itself and on behalf of each of the Guarantors (if and to the
extent expressly included in Subsections contained in this Section) covenants
and agrees that, so long as any Loan or Note is outstanding or the Lenders
have
any obligation or commitment to make any Loans:
§7.1. Punctual
Payment.
The
Borrower will duly and punctually pay or cause to be paid the principal and
interest on the Loans and all interest, fees, charges and other amounts provided
for in this Agreement and the other Loan Documents, all in accordance with
the
terms of this Agreement and the Notes, and the other Loan
Documents.
§7.2. Maintenance
of Office.
The
Borrower and each of the Guarantors will maintain its chief executive office
in
Cranford, New Jersey, or at such other place in the United States of America
as
each of them shall designate upon written notice to the Administrative Agent
to
be delivered within five (5) days of such change, where notices, presentations
and demands to or upon the Borrower and the Guarantors, as the case may be,
in
respect of the Loan Documents may be given or made.
§7.3. Records
and Accounts.
The
Borrower and each of the Guarantors will (a) keep true and accurate records
and
books of account in which full, true and correct entries will be made in
accordance with GAAP in all material respects, and will cause each of its
Subsidiaries that owns Real Estate to keep true and accurate records and books
of account in which full, true and correct entries will be made in accordance
with GAAP in all material respects, (b) maintain adequate accounts and reserves
for all taxes (including income taxes), contingencies, depreciation and
amortization of its properties and the properties of its Subsidiaries and (c)
at
all times engage PricewaterhouseCoopers LLP or other Accountants as the
independent certified public accountants of MCRC, MCRLP and their respective
Subsidiaries and will not permit more than thirty (30) days to elapse between
the cessation of such firm’s (or any successor firm’s) engagement as the
independent certified public accountants of MCRC, MCRLP and their respective
Subsidiaries and the appointment in such capacity of a successor firm as
Accountants.
§7.4. Financial
Statements, Certificates and Information.
The
Borrower will deliver and will cause MCRC to deliver to the Administrative
Agent:
(a) as
soon
as practicable, but in any event not later than ninety (90) days after the
end
of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for
an
extension in accordance with §7.4(g) hereof, in which case such annual financial
statements shall be due in accordance with the proviso to §7.4(g):
(i) in
the
case of MCRLP, the audited consolidated balance sheet of MCRLP and its
subsidiaries at the end of such year, the related audited consolidated
statements of operations, owner’s equity (deficit) and cash flows for the year
then ended, in each case (except for statements of cash flow and owner’s equity)
with supplemental consolidating schedules provided by MCRLP; and
(ii) in
the
case of MCRC, the audited consolidated balance sheet of MCRC and its
subsidiaries (including, without limitation, MCRLP and its subsidiaries) at
the
end of such year, the related audited consolidated statements of operations,
stockholders’ equity (deficit) and cash flows for the year then ended, in each
case with supplemental consolidating schedules (except for statements of cash
flow and stockholders’ equity) provided by MCRC;
each
setting forth in comparative form the figures for the previous fiscal year
and
all such statements to be in reasonable detail, prepared in accordance with
GAAP, and, in each case, accompanied by an auditor’s report prepared by the
Accountants without a “going-concern” or like qualification or exception and
without any qualification or exception as to the scope of such
audit;
(b) as
soon
as practicable, but in any event not later than forty-five (45) days after
the
end of each of its first three (3) fiscal quarters:
(i) in
the
case of MCRLP, copies of the unaudited consolidated balance sheet of MCRLP
and
its subsidiaries as at the end of such quarter, the related unaudited
consolidated statements of operations, owner’s equity (deficit) and cash flows
for the portion of MCRLP’s fiscal year then elapsed, with supplemental
consolidating schedules (except with respect to statements of cash flow and
owner’s equity) provided by MCRLP; and
(ii) in
the
case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and
its
subsidiaries (including, without limitation, MCRLP and its subsidiaries) as
at
the end of such quarter, the related unaudited consolidated statements of
operations, stockholders’ equity (deficit) and cash flows for the portion of
MCRC’s fiscal year then elapsed, with supplemental consolidating schedules
(except with respect to statements of cash flow and stockholders’ equity)
provided by MCRC;
all
in
reasonable detail and prepared in accordance with GAAP on the same basis as
used
in preparation of MCRC’s Form 10-Q statements filed with the SEC, together with
a certification by the chief financial officer or senior vice president of
finance of MCRLP or MCRC, as applicable, that the information contained in
such
financial statements fairly presents the financial position of MCRLP or MCRC
(as
the case may be) and its subsidiaries on the date thereof (subject to year-end
adjustments);
(c) simultaneously
with the delivery of the financial statements referred to in subsections (a)
(for the fourth fiscal quarter of each fiscal year) above and (b) (for the
first
three fiscal quarters of each fiscal year), a statement in the form of
Exhibit D
hereto
signedy
the
chief financial officer or senior vice president of finance of the MCRLP or
MCRC, as applicable, and (if applicable) reconciliations to reflect changes
in
GAAP since the applicable Financial Statement Date, but only to the extent
that
such changes in GAAP affect the financial covenants set forth in §9 hereof; and,
in the case of MCRLP, setting forth in reasonable detail computations evidencing
compliance with the covenants contained in §8.6 and §9 hereof;
(d) promptly
if requested by the Administrative Agent, a copy of each report (including
any
so-called letters of reportable conditions or letters of no material weakness)
submitted to the Borrower, MCRC, or any other Guarantor or any of their
respective subsidiaries by the Accountants in connection with each annual audit
of the books of the Borrower, MCRC, or any other Guarantor or such subsidiary
by
such Accountants or in connection with any interim audit thereof pertaining
to
any phase of the business of the Borrower, MCRC or any other Guarantor or any
such subsidiary;
(e) contemporaneously
with the filing or mailing thereof, copies of all material of a financial nature
sent to the holders of any Indebtedness of the Borrower or any Guarantor (other
than the Loans) for borrowed money, to the extent that the information or
disclosure contained in such material refers to or could reasonably be expected
to have a Material Adverse Effect;
(f) subject
to subsection (g) below, contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to
the
stockholders of MCRC;
(g) as
soon
as practicable, but in any event not later than ninety (90) days after the
end
of each fiscal year of MCRC, copies of the Form 10-K statement filed by MCRC
with the SEC for such fiscal year, and as soon as practicable, but in any event
not later than forty-five (45) days after the end of each fiscal quarter of
MCRC, copies of the Form 10-Q statement filed by MCRC with the SEC for such
fiscal quarter, provided
that, in
either case, if MCRC has filed an extension for the filing of such statements,
MCRC shall deliver such statements to the Administrative Agent within ten (10)
days after the filing thereof with the SEC which filing shall be within fifteen
(15) days of MCRC’s filing for such extension or such sooner time as required to
avert a Material Adverse Effect on MCRC;
(h) from
time
to time, but not more frequently than once each calendar quarter so long as
no
Default or Event of Default has occurred and is continuing, such other financial
data and information about the Borrower, MCRC, the other Guarantors, their
respective Subsidiaries, the Real Estate and the Partially-Owned Entities as
the
Administrative Agent or any Lender acting through the Administrative Agent
may
reasonably request, and which is prepared by such Person in the normal course
of
its business or is required for securities and tax law compliance, including
pro
forma financial statements described in §9.9(b)(ii), complete rent rolls for the
Unencumbered Properties and summary rent rolls for the other Real Estate, and
insurance certificates with respect to the Real Estate (including the
Unencumbered Properties) and tax returns (following the occurrence
of a Default or Event of Default or, in the case of MCRC, to confirm MCRC’s REIT
status), but excluding working drafts and papers and privileged documents;
and
(i)
simultaneously with the delivery of the financial statements referred to in
subsections (a) (for the fourth fiscal quarter of each fiscal year) above and
(b) (for the first three fiscal quarters of each fiscal year) above, updates
to
Schedule
6.3(a)
and
Schedule 6.3(c)
hereto,
and simultaneously with the delivery of the financial statements referred to
in
subsection (a) above, updates to Schedule
6.19 hereto.
§7.5. Notices.
(a) Defaults.
The
Borrower will, and will cause each Guarantor, as applicable, to, promptly notify
the Administrative Agent in writing of the occurrence of any Default or Event
of
Default. If any Person shall give any notice or take any other action in respect
of (x) a claimed default (whether or not constituting a Default or Event of
Default under this Agreement) or (y) a claimed default by the Borrower, any
Guarantor or any of their respective Subsidiaries, as applicable, under any
note, evidence of Indebtedness, indenture or other obligation for borrowed
money
to which or with respect to which any of them is a party or obligor, whether
as
principal, guarantor or surety, and such default would permit the holder of
such
note or obligation or other evidence of Indebtedness to accelerate the maturity
thereof or otherwise cause the entire Indebtedness to become due, the Borrower,
MCRC or such other Guarantor, as the case may be, shall forthwith give written
notice thereof to the Administrative Agent, describing the notice or action
and
the nature of the claimed failure to comply.
(b) Environmental
Events.
The
Borrower will, and will cause each Guarantor to, promptly give notice in writing
to the Administrative Agent (i) upon the Borrower’s or such Guarantor’s
obtaining knowledge of any material violation of any Environmental Law affecting
any Real Estate or the Borrower’s or such Guarantor’s operations or the
operations of any of their Subsidiaries, (ii) upon the Borrower’s or such
Guarantor’s obtaining knowledge of any known Release of any Hazardous Substance
at, from, or into any Real Estate which it reports in writing or is reportable
by it in writing to any governmental authority and which is material in amount
or nature or which could materially adversely affect the value of such Real
Estate, (iii) upon the Borrower’s or such Guarantor’s receipt of any notice of
material violation of any Environmental Laws or of any material Release of
Hazardous Substances in violation of any Environmental Laws or any matter that
may be a Disqualifying Environmental Event, including a notice or claim of
liability or potential responsibility from any third party (including without
limitation any federal, state or local governmental officials) and including
notice of any formal inquiry, proceeding, demand, investigation or other action
with regard to (A) the Borrower’s or such Guarantor’s or any other Person’s
operation of any Real Estate, (B) contamination on, from or into any Real
Estate, or (C) investigation or remediation of off-site locations at which
the
Borrower or such Guarantor or any of its predecessors are alleged to have
directly or indirectly disposed of Hazardous Substances, or (iv) upon the
Borrower’s or such Guarantor’s obtaining knowledge that any expense or loss has
been incurred by such governmental
authority in connection with the assessment, containment, removal or remediation
of any Hazardous Substances with respect to which the Borrower or such Guarantor
or any Partially-Owned Entity may be liable or for which a lien may be imposed
on any Real Estate; provided any of which events described in clauses (i)
through (iv) above would have a Material Adverse Effect or constitute a
Disqualifying Environmental Event with respect to any Unencumbered
Property.
(c) Notification
of Claims against Unencumbered Properties.
The
Borrower will, and will cause each Guarantor to, promptly upon becoming aware
thereof, notify the Administrative Agent in writing of any setoff, claims,
withholdings or other defenses to which any of the Unencumbered Properties
are
subject, which (i) would have a material adverse effect on the value of such
Unencumbered Property, (ii) would have a Material Adverse Effect, or (iii)
with
respect to such Unencumbered Property, would constitute a Disqualifying
Environmental Event or a Lien which is not a Permitted Lien.
(d) Notice
of Litigation and Judgments.
The
Borrower will, and will cause each Guarantor and each Guarantor’s Subsidiaries
to, and the Borrower will cause each of its respective Subsidiaries to, give
notice to the Administrative Agent in writing within ten (10) days of becoming
aware of any litigation or proceedings threatened in writing or any pending
litigation and proceedings an adverse determination in which could reasonably
be
expected to have a Material Adverse Effect or materially adversely affect any
Unencumbered Property, or to which the Borrower, any Guarantor or any of their
respective Subsidiaries is or is to become a party involving an uninsured claim
against the Borrower, any Guarantor or any of their respective Subsidiaries
that
could reasonably be expected to have a Materially Adverse Effect or materially
adversely affect the value or operation of the Unencumbered Properties and
stating the nature and status of such litigation or proceedings. The Borrower
will, and will cause each of the Guarantors and the Subsidiaries to, give notice
to the Administrative Agent, in writing, in form and detail reasonably
satisfactory to the Administrative Agent, within ten (10) days of any judgment
not covered by insurance, final or otherwise, against the Borrower, any
Guarantor or any of their Subsidiaries in an amount in excess of
$5,000,000.
(e) Acquisition
of Real Estate.
The
Borrower shall promptly provide the Administrative Agent and the Lenders with
any press releases relating to the acquisition of any Real Estate by the
Borrower, any Guarantor, any of their respective Subsidiaries or any
Partially-Owned Entity for consideration in excess of $50,000,000, together
with
a statement as to whether such Real Estate qualifies as an Unencumbered
Property.
§7.6. Existence
of Borrower and Subsidiary Guarantors; Maintenance of Properties.
The
Borrower for itself and for each Subsidiary Guarantor insofar as any such
statements relate to such Subsidiary Guarantor will do or cause to be done
all
things necessary to, and shall, preserve and keep in full force and effect
its
existence as a limited partnership or its existence as another legally
constituted entity, and will do or cause to be done all things necessary to
preserve and keep in full force all of its material rights and franchises and
those of its Subsidiaries. The Borrower (a) will cause all necessary repairs,
renewals,
replacements,
betterments and improvements to be made to all Real Estate owned or controlled
by it or by any of its Subsidiaries or any Subsidiary Guarantor, all as in
the
judgment of the Borrower or such Subsidiary or such Subsidiary Guarantor may
be
necessary so that the business carried on in connection therewith may be
properly conducted at all times, subject to the terms of the applicable Leases
and partnership agreements or other entity charter documents, (b) will cause
all
of its other properties and those of its Subsidiaries and the Subsidiary
Guarantors used or useful in the conduct of its business or the business of
its
Subsidiaries or such Subsidiary Guarantor to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
ordinary wear and tear excepted, and (c) will, and will cause each of its
Subsidiaries and each Subsidiary Guarantor to, continue to engage primarily
in
the businesses now conducted by it and in related businesses consistent with
the
requirements of the fourth sentence of §7.7 hereof; provided
that
nothing in this §7.6 shall prevent the Borrower from discontinuing the operation
and maintenance of any of its properties or any of those of its Subsidiaries
if
such discontinuance is, in the judgment of the Borrower, desirable in the
conduct of its or their business and such discontinuance does not cause a
Default or an Event of Default hereunder and does not in the aggregate have
a
Material Adverse Effect on the Borrower, Guarantors and their respective
Subsidiaries taken as a whole.
§7.7. Existence
of MCRC; Maintenance of REIT Status of MCRC; Maintenance of
Properties.
Except
as expressly set forth in the second paragraph of this §7.7, the Borrower will
cause MCRC to do or cause to be done all things necessary to preserve and keep
in full force and effect MCRC’s existence as a Maryland corporation. The
Borrower will cause MCRC at all times to maintain its status as a REIT and
not
to take any action which could lead to its disqualification as a REIT. The
Borrower shall cause MCRC at all times to maintain its listing on the New York
Stock Exchange or any successor thereto. The Borrower will cause MCRC to
continue to operate as a fully-integrated, self-administered and self-managed
real estate investment trust which, together with its Subsidiaries (including,
without limitation MCRLP) owns and operates an improved property portfolio
comprised primarily (i.e., 85% or more by value) of office, office/flex,
warehouse and industrial/warehouse properties. The Borrower will cause MCRC
not
to engage in any business other than the business of acting as a REIT and
serving as the general partner and limited partner of MCRLP, as a member,
partner or stockholder of other Persons and as a Guarantor. The Borrower shall
cause MCRC to conduct all or substantially all of its business operations
through MCRLP or through subsidiary partnerships or other entities in which
(x)
MCRLP directly or indirectly owns at least 95% of the economic interests and
(y)
MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole
general partner or managing member. The Borrower shall cause MCRC not to own
real estate assets outside of its interests in MCRLP. The Borrower will cause
MCRC and its Subsidiaries to do or cause to be done all things necessary to
preserve and keep in full force all of its rights and franchises and those
of
its Subsidiaries. The Borrower will cause MCRC (a) to cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
ordinary wear and tear excepted, (b) to cause to be made all necessary repairs,
renewals, replacements, betterments and
improvements
thereof, all as in the judgment of MCRC may be necessary so that the business
carried on in connection therewith may be properly conducted at all times,
and
(c) to cause each of its Subsidiaries to continue to engage primarily in the
businesses now conducted by it and in related businesses, consistent with the
requirements of the fourth sentence of this §7.7; provided
that
nothing in this §7.7 shall prevent MCRC from discontinuing the operation and
maintenance of any of its properties or any of those of its Subsidiaries if
such
discontinuance is, in the judgment of MCRC, desirable in the conduct of its
or
their business and such discontinuance does not cause a Default or an Event
of
Default hereunder and does not in the aggregate materially adversely affect
the
business of MCRC and its Subsidiaries on a consolidated basis.
Notwithstanding
the foregoing, MCRC shall be permitted to change its organizational status
to
become a Maryland business trust (the “MCRC
Organizational Change”),
provided
the
following conditions are satisfied: (i) the Borrower gives the
Administrative Agent at least ten (10) Business Days prior written notice
of such change; (ii) no Event of Default has occurred and is continuing at
the time such change occurs and no Default or Event of Default would result
therefrom; (iii) such change would not otherwise reasonably be expected to
have a Material Adverse Effect; (iv) MCRC reaffirms its obligations under
the MCRC Guaranty; (v) counsel for MCRC issues updated legal opinions
reasonably acceptable to the Administrative Agent and its counsel as to the
consummation of the MCRC Organizational Change and the continued enforceability
of the MCRC Guaranty; and (vi) MCRC and the Borrower provide any other
documentation reasonably requested by the Administrative Agent.
§7.8. Insurance.
The
Borrower will, and will cause each Guarantor to, maintain with respect to its
properties, and will cause each of its Subsidiaries to maintain with financially
sound and reputable insurers, insurance with respect to such properties and
its
business against such casualties and contingencies as shall be commercially
reasonable and in accordance with the customary and general practices of
businesses having similar operations and real estate portfolios in similar
geographic areas and in amounts, containing such terms, in such forms and for
such periods as may be reasonable and prudent for such businesses.
§7.9. Taxes.
The
Borrower will, and will cause each Guarantor to, pay or cause to be paid real
estate taxes, other taxes, assessments and other governmental charges against
the Real Estate before the same become delinquent and will duly pay and
discharge, or cause to be paid and discharged, before the same shall become
overdue, all taxes, assessments and other governmental charges imposed upon
its
sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if
unpaid might by law become a lien or charge upon any of the Real Estate;
provided
that any
such tax, assessment, charge, levy or claim need not be paid if the validity
or
amount thereof shall currently be contested in good faith by appropriate
proceedings and if the Borrower or such Guarantor shall have set aside on its
books adequate reserves with respect thereto; and provided
further that
the
Borrower or such Guarantor will pay all such taxes, assessments, charges, levies
or claims forthwith upon the commencement of
proceedings
to foreclose any lien that may have attached as security therefor. If requested
by the Administrative Agent, the Borrower will provide evidence of the payment
of real estate taxes, other taxes, assessments and other governmental charges
against the Real Estate in the form of receipted tax bills or other form
reasonably acceptable to the Agent. Notwithstanding the foregoing, a breach
of
the covenants set forth in this §7.9 shall only constitute an Event of Default
if such breach results in an aggregate amount in excess of $10,000,000 at any
one time claimed due by the taxing authority of any jurisdiction for which
payment is required to be made and has not been timely made.
§7.10. Inspection
of Properties and Books.
The
Borrower will, and will cause each Guarantor to, permit the Lenders, coordinated
through the Administrative Agent, (a) on an annual basis as a group, or more
frequently if required by law or by regulatory requirements of a Lender or
if a
Default or an Event of Default shall have occurred and be continuing, to visit
and inspect any of the properties of the Borrower, any Guarantor or any of
their
respective Subsidiaries, and to examine the books of account of the Borrower,
the Guarantors and their respective Subsidiaries (and to make copies thereof
and
extracts therefrom) and (b) to discuss the affairs, finances and accounts of
the
Borrower, the Guarantors and their respective Subsidiaries with, and to be
advised as to the same by, its officers, all at such reasonable times and
intervals during normal business hours as the Administrative Agent may
reasonably request; provided
that the
Borrower shall only be responsible for the costs and expenses incurred by the
Administrative Agent in connection with such inspections after the occurrence
and during the continuance of an Event of Default; and provided
further
that
such Person has executed a confidentiality agreement in substantially the form
previously executed by the Administrative Agent. The Administrative Agent and
each Lender agrees to treat any non-public information delivered or made
available by the Borrower to it in accordance with the provisions of the
confidentiality agreement executed by such Person.
§7.11. Compliance
with Laws, Contracts, Licenses, and Permits.
The
Borrower will, and will cause each Guarantor to, comply with, and will cause
each of their respective Subsidiaries to comply with (a) all applicable laws
and
regulations now or hereafter in effect wherever its business is conducted,
including, without limitation, all Environmental Laws and all applicable federal
and state securities laws, (b) the provisions of its partnership agreement
and
certificate or corporate charter and other charter documents and by-laws, as
applicable, (c) all material agreements and instruments to which it is a party
or by which it or any of its properties may be bound (including the Real Estate
and the Leases) and (d) all applicable decrees, orders, and judgments;
provided
that any
such decree, order or judgment need not be complied with if the validity or
amount thereof shall currently be contested in good faith by appropriate
proceedings and if the Borrower or such Guarantor shall have set aside on its
books adequate reserves with respect thereto; and provided
further
that the
Borrower or such Guarantor will comply with any such decree, order or judgment
forthwith upon the commencement of proceedings to foreclose any Lien that may
have attached as security therefor.
§7.12. Use
of
Proceeds.
Subject
at all times to the other provisions of this Agreement, the Borrower will use
the proceeds of the Loans solely for general working capital needs and other
general corporate purposes.
§7.13. Additional
Guarantors; Solvency of Guarantors.
(a) If,
after
the Closing Date, a Subsidiary that is not a Guarantor, (i) acquires any Real
Estate that then or thereafter qualifies under (a)-(d) of the definition of
Unencumbered Property and is wholly-owned or ground leased under an Eligible
Ground Lease, or (ii) extends, holds or acquires any Intercompany Secured Debt,
in each case the Borrower shall cause such Person (which Person must be or
become a wholly-owned Subsidiary) to execute and deliver a Guaranty to the
Administrative Agent and the Lenders in substantially the form of Exhibit
B
hereto.
Such Guaranty shall evidence consideration and equivalent value. The Borrower
will not permit any Guarantor that owns or ground leases any Unencumbered
Properties to have any Subsidiaries unless such Subsidiary’s business,
obligations and undertakings are exclusively related to the business of such
Guarantor in the ownership of the Unencumbered Properties.
(b) The
Borrower, MCRC, and each Subsidiary Guarantor is solvent, other than for
Permitted Event(s) permitted by this Agreement which shall be the only
Non-Material Breaches under this §7.13(b). The Borrower and MCRC each
acknowledge that, subject to the indefeasible payment and performance in full
of
the Obligations, the rights of contribution among each of the them and the
Subsidiary Guarantors are in accordance with applicable laws and in accordance
with each such Person’s benefits under the Loans and this Agreement. The
Borrower further acknowledges that, subject to the indefeasible payment and
performance in full of the Obligations, the rights of subrogation of the
Subsidiary Guarantors as against the Borrower and MCRC are in accordance with
applicable laws.
§7.14. Further
Assurances.
The
Borrower will, and will cause each Guarantor to, cooperate with, and to cause
each of its Subsidiaries to cooperate with, the Administrative Agent and the
Lenders and execute such further instruments and documents as the Lenders or
the
Administrative Agent shall reasonably request to carry out to their reasonable
satisfaction the transactions contemplated by this Agreement and the other
Loan
Documents.
§7.15. Environmental
Indemnification.
The
Borrower covenants and agrees that it and its Subsidiaries will indemnify and
hold the Administrative Agent and each Lender, and each of their respective
Affiliates, harmless from and against any and all claims, expense, damage,
loss
or liability incurred by the Administrative Agent or any Lender (including
all
reasonable costs of legal representation incurred by the Administrative Agent
or
any Lender in connection with any investigative, administrative or judicial
proceeding, whether or not the Administrative Agent or any Lender is party
thereto, but excluding, as applicable for the Administrative Agent or a Lender,
any claim, expense, damage, loss or liability as a result of the gross
negligence or willful misconduct of the Administrative Agent or such Lender
or
any of their respective Affiliates) relating to (a) any Release or threatened
Release of Hazardous Substances on any Real Estate; (b) any violation of any
Environmental Laws with
respect
to conditions at any Real Estate or the operations conducted thereon; (c) the
investigation or remediation of off-site locations at which the Borrower, any
Guarantor or any of their respective Subsidiaries or their predecessors are
alleged to have directly or indirectly disposed of Hazardous Substances; or
(d)
any action, suit, proceeding or investigation brought or threatened with respect
to any Hazardous Substances relating to Real Estate (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to
property). In litigation, or the preparation therefor, the Lenders and the
Administrative Agent shall be entitled to select their own counsel and
participate in the defense and investigation of such claim, action or
proceeding, and the Borrower shall bear the expense of such separate counsel
of
the Administrative Agent and the Lenders if (i) in the written opinion of
counsel to the Administrative Agent and the Lenders, use of counsel of the
Borrower’s choice could reasonably be expected to give rise to a conflict of
interest, (ii) the Borrower shall not have employed counsel reasonably
satisfactory to the Administrative Agent and the Lenders within a reasonable
time after notice of the institution of any such litigation or proceeding,
or
(iii) the Borrower authorizes the Administrative Agent and the Lenders to employ
separate counsel at the Borrower’s expense. It is expressly acknowledged by the
Borrower that this covenant of indemnification shall survive the payment of
the
Loans and shall inure to the benefit of the Administrative Agent and the Lenders
and their respective Affiliates, their respective successors, and their
respective assigns under the Loan Documents permitted under this
Agreement.
§7.16. Response
Actions.
The
Borrower covenants and agrees that if any Release or disposal of Hazardous
Substances shall occur or shall have occurred on any Real Estate owned by it
or
any of its Subsidiaries, the Borrower will cause the prompt containment and
removal of such Hazardous Substances and remediation of such Real Estate if
necessary to comply with all Environmental Laws.
§7.17. Environmental
Assessments.
If the
Majority Lenders have reasonable grounds to believe that a Disqualifying
Environmental Event has occurred with respect to any Unencumbered Property,
after reasonable notice by the Administrative Agent, whether or not a Default
or
an Event of Default shall have occurred, the Majority Lenders may determine
that
the affected Real Estate no longer qualifies as an Unencumbered Property;
provided
that
prior to making such determination, the Administrative Agent shall give the
Borrower reasonable notice and the opportunity to obtain one or more
environmental assessments or audits of such Unencumbered Property prepared
by a
hydrogeologist, an independent engineer or other qualified consultant or expert
approved by the Administrative Agent, which approval will not be unreasonably
withheld, to evaluate or confirm (i) whether any Release of Hazardous Substances
has occurred in the soil or water at such Unencumbered Property and (ii) whether
the use and operation of such Unencumbered Property materially complies with
all
Environmental Laws (including not being subject to a matter that is a
Disqualifying Environmental Event). Such assessment will then be used by the
Administrative Agent to determine whether a Disqualifying Environmental Event
has in fact occurred with respect to such Unencumbered Property. All such
environmental assessments shall be at the sole cost and expense of the
Borrower.
§7.18. Employee
Benefit Plans.
(a) In
General.
Each
Employee Benefit Plan maintained by the Borrower, any Guarantor or any of their
respective ERISA Affiliates will be operated in compliance in all material
respects with the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting prohibited
transactions.
(b) Terminability
of Welfare Plans.
With
respect to each Employee Benefit Plan maintained by the Borrower, any Guarantor
or any of their respective ERISA Affiliates which is an employee welfare benefit
plan within the meaning of §3(1) or §3(2)(B) of ERISA, the Borrower, such
Guarantor, or any of their respective ERISA Affiliates, as the case may be,
has
the right to terminate each such plan at any time (or at any time subsequent
to
the expiration of any applicable bargaining agreement) without material
liability other than liability to pay claims incurred prior to the date of
termination.
(c) Unfunded
or Underfunded Liabilities.
The
Borrower will not, and will not permit any Guarantor to, at any time, have
accruing or accrued unfunded or underfunded liabilities with respect to any
Employee Benefit Plan, Guaranteed Pension Plan or Multiemployer Plan, or permit
any condition to exist under any Multiemployer Plan that would create a
withdrawal liability.
§7.19. No
Amendments to Certain Documents.
The
Borrower will not, and will not permit any Guarantor to, at any time cause
or
permit its certificate of limited partnership, agreement of limited partnership,
articles of incorporation, by-laws, certificate of formation, operating
agreement or other charter documents, as the case may be, to be modified,
amended or supplemented in any respect whatever, without (in each case) the
express prior written consent or approval of the Administrative Agent, if such
changes would adversely affect MCRC’s REIT status or otherwise materially
adversely affect the rights of the Administrative Agent and the Lenders
hereunder or under any other Loan Document.
§7.20. Distributions
in the Ordinary Course.
In the
ordinary course of business MCRLP causes all of its and MCRC’s Subsidiaries to
make net transfers of cash and cash equivalents upstream to MCRLP and MCRC,
and
shall continue to follow such ordinary course of business. MCRLP shall not
make
net transfers of cash and cash equivalents downstream to its and MCRC’s
Subsidiaries except for any transfers of cash and cash equivalents in connection
with the extension of Intercompany Secured Debt and except in the ordinary
course of business consistent with past practice.
§8. CERTAIN
NEGATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS.
The
Borrower for itself and on behalf of the Guarantors covenants and agrees that,
so long as any Loan or Note is outstanding or any of the Lenders has any
obligation or commitment to make any Loans:
§8.1. Restrictions
on Indebtedness.
The
Borrower and the Guarantors may, and may permit their respective Subsidiaries
to, create, incur, assume, guarantee or be or remain liable for, contingently
or
otherwise, any Indebtedness other than the specific Indebtedness which is
prohibited under this §8.1 and with respect to which each of the Borrower and
the Guarantors will not, and will not permit any Subsidiary to, create, incur,
assume, guarantee or be or remain liable for, contingently or otherwise,
singularly or in the aggregate as follows:
(a) Indebtedness
which would result in a Default or Event of Default under §9 hereof or under any
other provision of this Agreement; and
(b) Guarantees
of the Indebtedness of any Other Investment or the Newco Investment which are
not permitted under the definition of “Other Investment” or “Newco Investment”
herein.
The
terms
and provisions of this §8.1 are in addition to, and not in limitation of, the
covenants set forth in §9 of this Agreement.
§8.2. Restrictions
on Liens, Etc.
If the
Revolving Credit Agreement is no longer in effect, none of the Borrower, any
Guarantor, any Operating Subsidiary and any wholly-owned Subsidiary will: (a)
create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, negative pledge, charge, restriction or other
security interest of any kind upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon the income or profits
therefrom; (b) transfer any of such property or assets or the income or profits
therefrom for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to payment of its general
creditors; (c) acquire, or agree or have an option to acquire, any property
or
assets upon conditional sale or other title retention or purchase money security
agreement, device or arrangement; (d) suffer to exist for a period of more
than
thirty (30) days after the same shall have been incurred any Indebtedness or
claim or demand against it that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or (e) sell, assign, pledge or otherwise transfer any accounts,
contract rights, general intangibles, chattel paper or instruments, with or
without recourse (the foregoing items (a) through (e) being sometimes referred
to in this §8.2 collectively as “Liens”),
provided
that the
Borrower, the Guarantors and any Subsidiary may create or incur or suffer to
be
created or incurred or to exist:
(i) Liens
securing taxes, assessments, governmental charges (including, without
limitation, water, sewer and similar charges) or levies or claims for labor,
material and supplies;
(ii) deposits
or pledges made in connection with, or to secure payment of, worker’s
compensation, unemployment insurance, old age pensions or other social security
obligations; and deposits with utility companies and other similar deposits
made
in the ordinary course of business;
(iii) Liens
(other than affecting the Unencumbered Properties) in respect of judgments
or
awards;
(iv) encumbrances
on properties consisting of easements, rights of way, covenants, notice of
use
limitations under Environmental Laws, restrictions on the use of real property
and defects and irregularities in the title thereto; landlord’s or lessor’s
Liens under Leases to which the Borrower, any Guarantor, or any Subsidiary
is a
party or bound; purchase options granted at a price not less than the market
value of such property; and other similar Liens or encumbrances on properties,
none of which interferes materially and adversely with the use of the property
affected in the ordinary conduct of the business of the owner thereof, and
which
matters neither (x) individually or in the aggregate have a Material Adverse
Effect nor (xx) make title to such property unmarketable by the conveyancing
standards in effect where such property is located;
(v) any
Leases (excluding Synthetic Leases) entered into in good faith with Persons
that
are not Affiliates; provided
that
Leases with Affiliates on market terms and with monthly market rent payments
required to be paid are Permitted Liens;
(vi) Liens
and
other encumbrances or rights of others which exist on the date of this Agreement
and which do not otherwise constitute a breach of this Agreement;
(vii) as
to
Real Estate, which is acquired after the date of this Agreement, Liens and
other
encumbrances or rights of others which exist on the date of acquisition and
which do not otherwise constitute a breach of this Agreement;
(viii) Liens
affecting the Unencumbered Properties in respect of judgments or awards that
have been in force for less than the applicable period for taking an appeal,
so
long as execution is not levied thereunder or in respect of which, at the time,
a good faith appeal or proceeding for review is being prosecuted, and in respect
of which a stay of execution shall have been obtained pending such appeal or
review; provided
that the
Borrower shall have obtained a bond or insurance with respect thereto to the
Administrative Agent’s reasonable satisfaction;
(ix) Liens
securing Indebtedness for the purchase price of capital assets (other than
Real
Estate but including Indebtedness in respect of Capitalized Leases for equipment
and other equipment leases) to the extent not otherwise prohibited by
§8.1;
(x) other
Liens (other than affecting the Unencumbered Properties) in connection with
any
Indebtedness not prohibited under §8.1, which do not otherwise result in a
Default or Event of Default under this Agreement;
(xi) Liens
granted in accordance with §8.3(b) hereof; and
(xii) Liens
affecting an Unencumbered Property consisting of mortgages, deeds of trust
or
other security interests granted by a Subsidiary Guarantor to the
Borrower
or
another Guarantor to secure intercompany Indebtedness owing from such Subsidiary
Guarantor to the Borrower or such other Guarantor; provided
that at
all times such Indebtedness and Liens (sometimes referred to herein collectively
as the “Intercompany
Secured Debt”)
shall
be held by the Borrower or a Guarantor and the Borrower’s or such Guarantor’s
rights or interests therein shall not be subject to any Liens.
Notwithstanding
the foregoing provisions of this §8.2, the failure of any Unencumbered Property
to comply with the covenants set forth in this §8.2 shall result in such
Unencumbered Property’s no longer qualifying as Unencumbered Property under this
Agreement, but such disqualification shall not by itself constitute a Default
or
Event of Default, unless the cause of such non-qualification otherwise
constitutes a Default or an Event of Default.
§8.3. Merger,
Consolidation and Disposition of Assets.
None
of
the Borrower, any Guarantor, any Operating Subsidiary or any wholly-owned
Subsidiary will:
(a) Become
a
party to any merger, consolidation or reorganization without the prior Unanimous
Lender Approval, except that so long as no Default or Event of Default has
occurred and is continuing, or would occur after giving effect thereto, the
merger, consolidation or reorganization of one or more Persons with and into
the
Borrower, any Guarantor, or any wholly-owned Subsidiary, shall be permitted
if
(i) such action is not hostile, (ii) the Borrower, any Guarantor, or any wholly
owned Subsidiary, as the case may be, is the surviving entity or such merger,
consolidation or reorganization involves only MCRC and its Affiliates and is
done in connection with an MCRC Organizational Change otherwise permitted under
this Agreement, and (iii) such merger, consolidation or reorganization does
not
cause a Default or Event of Default under §12.1(m) hereof; provided,
that for
any such merger, consolidation or reorganization (other than (v) the merger
or
consolidation of one or more Affiliates of MCRC with and into MCRC, or of MCRC
into such Affiliate, in either case in connection with an MCRC Organizational
Change otherwise permitted under this Agreement, (w) the merger or consolidation
of one or more Subsidiaries of MCRLP with and into MCRLP, (x) the merger or
consolidation of two or more Subsidiaries of MCRLP, (y) the merger or
consolidation of one or more Subsidiaries of MCRC with and into MCRC, or (z)
the
merger or consolidation of two or more Subsidiaries of MCRC), the Borrower
shall
provide to the Administrative Agent a statement in the form of Exhibit
D
hereto
signed by the chief financial officer or senior vice president of finance or
other thereon designated officer of the Borrower and setting forth in reasonable
detail computations evidencing compliance with the covenants contained in §9
hereof and certifying that no Default or Event of Default has occurred and
is
continuing, or would occur and be continuing after giving effect to such merger,
consolidation or reorganization and all liabilities, fixed or contingent,
pursuant thereto;
(b) Sell,
transfer or otherwise dispose of (collectively and individually, “Sell”
or
a
“Sale”)
or
grant a Lien to secure Indebtedness (an “Indebtedness
Lien”)
on
any
of
its
now owned, ground leased or hereafter acquired assets without obtaining the
prior written consent of the Required Lenders, except for:
(i) the
Sale
of or granting of an Indebtedness Lien on any Unencumbered Property or other
Real Estate so long as no Default or Event of Default has then occurred and
is
continuing, or would occur and be continuing after giving effect to such Sale
or
Indebtedness Lien; provided,
that
prior to (A) any Sale of any Unencumbered Property (for consideration in excess
of $25,000,000) or other Real Estate (for consideration in excess of
$75,000,000) or (B) the granting of an Indebtedness Lien with respect to an
Unencumbered Property (for consideration in excess of $25,000,000) or other
Real
Estate (for consideration in excess of $75,000,000), the Borrower shall provide
to the Administrative Agent a statement in the form of Exhibit
D
hereto
signed by the chief financial officer or senior vice president of finance or
other thereon designated officer of the Borrower and setting forth in reasonable
detail computations evidencing compliance with the covenants contained in §9
hereof and certifying that no Default or Event of Default has occurred and
is
continuing, or would occur and be continuing after giving effect to such
proposed Sale or Indebtedness Lien and all liabilities, fixed or contingent,
pursuant thereto; and provided
further,
if such
Sale involves a qualified, deferred exchange under § 1031 of the Code, the
Borrower shall also provide the statements and certifications described in
the
previous proviso on the date of any release from the escrow account of the
proceeds of such qualified, deferred exchange under §1031 of the
Code;
(ii) the
Sale
of or the granting of an Indebtedness Lien on any Unencumbered Property while
a
Default or Event of Default has then occurred and is continuing; provided,
that
(A) the Borrower shall (1) apply the net proceeds of each such permitted Sale
or
Indebtedness Lien to the repayment of the Loans or (2) segregate the net
proceeds of such permitted Sale or Indebtedness Lien in an escrow account with
the Administrative Agent or with a financial institution reasonably acceptable
to the Administrative Agent and apply such net proceeds solely to a qualified,
deferred exchange under §1031 of the Code or to another use with the prior
written approval of the Required Lenders or (3) complete an exchange of such
Unencumbered Property for other real property of equivalent value under §1031 of
the Code so long as such other real property becomes an Unencumbered Property
upon acquisition, (B) no Default or Event of Default would occur and be
continuing after giving effect to such Sale or Indebtedness Lien and (C) prior
to the date of such Sale or granting of an Indebtedness Lien for consideration
in excess of $25,000,000, and on the date of any release from the escrow account
of the proceeds of the qualified, deferred exchange under §1031 of the Code in
excess of $25,000,000, the Borrower shall provide to the Administrative Agent
a
statement in the form of Exhibit
D
hereto
signed by the chief financial officer or senior vice president of finance or
other thereon designated officer and setting forth in reasonable detail
computations evidencing compliance with the covenant in §9 hereof and certifying
the use of the proceeds of such Sale or Indebtedness Lien and certifying that
no
Default
or Event of Default
would
occur and be continuing after giving effect to such Sale or Indebtedness Lien,
and all liabilities fixed or contingent pursuant thereto or to such release
of
proceeds;
(iii) the
Sale
of or the granting of an Indebtedness Lien on any Real Estate (other than an
Unencumbered Property) while a Default or Event of Default has then occurred
and
is continuing; provided,
that
(A) the Borrower shall (1) apply the net proceeds of each such Sale or
Indebtedness Lien to the repayment of the Loans or (2) segregate the net
proceeds of such Sale or Indebtedness Lien in an escrow account with the
Administrative Agent or with a financial institution reasonably acceptable
to
the Administrative Agent and apply such net proceeds solely to a qualified,
deferred exchange under §1031 of the Code or to another use with the prior
written approval of the Required Lenders or (3) complete an exchange of such
Real Estate for other real property of equivalent value under §1031 of the Code,
(B) no Default or Event of Default would occur and be continuing after giving
effect to such Sale or Indebtedness Lien and (C) prior to the date of any such
Sale or granting of an Indebtedness Lien for consideration in excess of
$75,000,000, the Borrower shall provide to the Administrative Agent a statement
in the form of Exhibit
D
hereto
signed by the chief financial officer or senior vice president of finance or
other thereon designated officer of the Borrower and setting forth in reasonable
detail computations evidencing compliance with the covenants contained in §9
hereof and certifying that no Default or Event of Default would occur and be
continuing after giving effect to such Sale or Indebtedness Lien and all
liabilities, fixed or contingent, pursuant thereto; and
(iv) the
Sale
of or the granting of an Indebtedness Lien on any of its now owned or hereafter
acquired assets (other than Real Estate) in one or more
transactions.
§8.4. Negative
Pledge.
From
and after the date hereof, neither the Borrower nor any Guarantor will, and
will
not permit any Subsidiary to, enter into any agreement or permit to exist any
agreement by it, containing any provision prohibiting the creation or assumption
of any Lien upon its properties (other than prohibitions on liens for particular
assets (other than an Unencumbered Property) set forth in a security instrument
in connection with Secured Indebtedness for such assets and the granting or
effect of such liens does not otherwise constitute a Default or Event of Default
and other than prohibitions in the Revolving Credit Agreement), revenues or
assets, whether now owned or hereafter acquired, or restricting the ability
of
the Borrower or the Guarantors to amend or modify this Agreement or any other
Loan Document. The Borrower shall be permitted a period of (i) thirty (30)
days
to cure any Non-Material Breach affecting other than MCRC or MCRLP and (ii)
ten
(10) days to cure any Non-Material Breach affecting MCRC or MCRLP under this
§8.4 before the same shall be an Event of Default under §12.1(c).
§8.5. Compliance
with Environmental Laws.
None of
the Borrower, any Guarantor, or any Subsidiary will do any of the following:
(a)
use any of the Real Estate or any portion
thereof
as a facility for the handling, processing, storage or disposal of Hazardous
Substances except for quantities of Hazardous Substances used in the ordinary
course of business and in compliance with all applicable Environmental Laws,
(b)
cause or permit to be located on any of the Real Estate any underground tank
or
other underground storage receptacle for Hazardous Substances except in
compliance with Environmental Laws, (c) generate any Hazardous Substances on
any
of the Real Estate except in compliance with Environmental Laws, or (d) conduct
any activity at any Real Estate or use any Real Estate in any manner so as
to
cause a Release causing a violation of Environmental Laws or a Material Adverse
Effect or a violation of any Environmental Law; provided
that a
breach of this covenant shall result in the affected Real Estate no longer
being
an Unencumbered Property, but shall only constitute an Event of Default under
§12.1(d) if such breach is not a Non-Material Breach.
§8.6. Distributions.
(a) The
Borrower (i) will not in any period of four (4) consecutive completed fiscal
quarters make Distributions with respect to common stock or other common equity
interests in such period in an aggregate amount in excess of 90% of Funds From
Operations for such period (for purposes of this clause, non-cash assets or
interests in non-cash assets which are distributed to equity interest holders
of
the Borrower shall be valued at the value of such assets used in calculating
Consolidated Total Capitalization) or (ii) will not make any Distributions
during any period when any Event of Default under §12.1(a) (including, without
limitation, any failure to pay resulting from acceleration of the Loans)
§12.1(b), §12.1(c) resulting from a failure to comply with §7.7 (as to the legal
existence and REIT status of MCRC), §9, §12.1(g), §12.1(h), or §12.1(j) has
occurred and is continuing or (iii) will not make any Distributions or transfers
of cash or cash equivalents to any Guarantor or its Subsidiaries when such
Person is the subject of a Permitted Event except as required by order of the
tribunal in which such Permitted Event is occurring; and except that such Person
may make Distributions or transfers of cash or cash equivalents permitted under
§7.20 to a Guarantor or Subsidiary while such distributing Person is the subject
of a Permitted Event; provided,
however,
that
the Borrower may at all times make Distributions (after taking into account
all
available funds of MCRC from all other sources) in the minimum aggregate amount
required in order to enable MCRC to continue to qualify as a REIT. In the event
that MCRC or MCRLP raises equity during the term of this Agreement, the
permitted percentage of Distributions will be adjusted based on the total
declared distribution per share and partnership units over the most recent
four
(4) quarters to Funds From Operations per weighted average share and partnership
unit based on the most recent four (4) quarters.
(b) MCRC
will
not, during any period when any Event of Default has occurred and is continuing,
make any Distributions in excess of the Distributions required to be made by
MCRC in order to maintain its status as a REIT.
§8.7. Employee
Benefit Plans. None
of
the Borrower, any Guarantor or any ERISA Affiliate will
(a) engage
in
any “prohibited transaction” within the meaning of §406 of ERISA or §4975 of the
Code which could result in a material liability for the Borrower, any Guarantor
or any of their respective Subsidiaries; or
(b) permit
any Guaranteed Pension Plan to incur an “accumulated funding deficiency”, as
such term is defined in §302 of ERISA, whether or not such deficiency is or may
be waived; or
(c) fail
to
contribute to any Guaranteed Pension Plan to an extent which, or terminate
any
Guaranteed Pension Plan in a manner which, could result in the imposition of
a
lien or encumbrance on the assets of the Borrower, any Guarantor or any of
their
respective Subsidiaries pursuant to §302(f) or §4068 of ERISA; or
(d) amend
any
Guaranteed Pension Plan in circumstances requiring the posting of security
pursuant to §307 of ERISA or §401(a)(29) of the Code; or
(e) permit
or
take any action which would result in the aggregate benefit liabilities (with
the meaning of §4001 of ERISA) of all Guaranteed Pension Plans exceeding the
value of the aggregate assets of such Plans, disregarding for this purpose
the
benefit liabilities and assets of any such Plan with assets in excess of benefit
liabilities;
provided
that
none of (a) - (e) shall be an Event of Default under §12.1(c) if the prohibited
matters occurring are in the aggregate within the Dollar limits permitted within
§12.1(l) and are otherwise the subject of the matters that are covered by the
Events of Default in §12.1(l)
§8.8. Fiscal
Year.
The
Borrower will not, and will not permit the Guarantors or any of their respective
Subsidiaries to, change the date of the end of its fiscal year from that set
forth in §6.5; provided
that
such persons may change their respective fiscal years if they give the
Administrative Agent thirty (30) days prior written notice of such change and
the parties make appropriate adjustments satisfactory to the Borrower and the
Lenders to the provisions of this Agreement (including without limitation those
set forth in §9) to reflect such change in fiscal year.
§9. FINANCIAL
COVENANTS OF THE BORROWER.
The
Borrower covenants and agrees that, so long as any Loan or Note is outstanding
or any Lender has any obligation or commitment to make any Loan:
§9.1. Leverage
Ratio.
As at
the end of any fiscal quarter or other date of measurement, the Borrower shall
not permit the ratio of Consolidated Total Liabilities to Consolidated Total
Capitalization to exceed 60%; provided
that
such ratio may exceed 60% from time to time so long as (a) such ratio does
not
exceed 65%, (b) such ratio ceases to exceed 60% within 180 days following each
date such ratio first exceeded 60%, and (c) the Borrower provides a certificate
in substantially the form of Exhibit
H
hereto
to the
Administrative
Agent when such ratio first exceeds 60% and when such ratio ceases to exceed
60%.
§9.2. Secured
Indebtedness.
As at
the end of any fiscal quarter or other date of measurement, the Borrower shall
not permit Consolidated Secured Indebtedness to exceed 40% of Consolidated
Total
Capitalization.
§9.3. Tangible
Net Worth.
As at
the end of any fiscal quarter or any other date of measurement, the Borrower
shall not permit Consolidated Tangible Net Worth to be less than the sum of
(a)
$1,800,000,000 plus
(b) 70%
of the sum of (i) the aggregate proceeds received by MCRC (net of fees and
expenses customarily incurred in transactions of such type) in connection with
any offering of stock in MCRC and (ii) the aggregate value of operating units
issued by MCRLP in connection with asset or stock acquisitions (valued at the
time of issuance by reference to the terms of the agreement pursuant to which
such units are issued), in each case after November 23, 2004 Date and on or
prior to the date such determination of Consolidated Tangible Net Worth is
made.
§9.4. [Intentionally
Deleted.]
§9.5. Fixed
Charge Coverage.
As at
the end of any fiscal quarter or other date of measurement, the Borrower shall
not permit Consolidated Adjusted Net Income to be less than one and one-half
(1.5) times Consolidated Fixed Charges, based on the results of the most recent
two (2) complete fiscal quarters.
§9.6. Unsecured
Indebtedness.
As at
the end of any fiscal quarter or other date of measurement, the Borrower shall
not permit the ratio of (i) Consolidated Unsecured Indebtedness to (ii) the
sum
(the “Section
9.6 Sum”)
of (a)
aggregate Capitalized Unencumbered Property NOI for all Unencumbered Properties
(other than (1) Acquisition Properties and (2) Unencumbered Properties with
a
negative Capitalized Unencumbered Property NOI), plus
(b) the
cost of all Unencumbered Properties which are Acquisition Properties,
plus
(c) the
value of all Eligible Cash 1031 Proceeds resulting from the sale of Unencumbered
Properties to exceed 60%; provided
that
such ratio may exceed 60% from time to time so long as (x) such ratio does
not
exceed 65%, (y) such ratio ceases to exceed 60% within 180 days following each
date such ratio first exceeded 60%, and (z) the Borrower provides a certificate
in substantially the form of Exhibit
H
hereto
to the Administrative Agent when such ratio first exceeds 60% and when such
ratio ceases to exceed 60%.
§9.7. Unencumbered
Property Interest Coverage.
As at
the end of any fiscal quarter or other date of measurement, the Borrower shall
not permit the aggregate Adjusted Unencumbered Property NOI for all Unencumbered
Properties to be less than two (2) times Consolidated Total Unsecured Interest
Expense, based on the results of the most recent two (2) complete fiscal
quarters.
§9.8. Investment
Limitation.
None of
the Borrower, any Guarantor, or any Subsidiary will make or permit to exist
or
to remain outstanding any Investment in violation of the following restrictions
and limitations:
(a) As
at the
end of any fiscal quarter or other date of measurement, the book value of
Unimproved Non-Income Producing Land shall not exceed ten (10%) of Consolidated
Total Capitalization.
(b) Investments
in Other Investments shall be Without Recourse to the Borrower, the Guarantors
and their Subsidiaries other than as expressly permitted in the definition
of
Other Investment, shall otherwise comply with the requirements of the definition
of Other Investment, and shall not exceed the lesser of 7.5% of Consolidated
Total Capitalization or $200,000,000.
(c) As
at the
end of any fiscal quarter or other date of measurement, the aggregate Project
Costs of all Construction-in-Process shall not exceed fifteen (15%) percent
of
Consolidated Total Capitalization. For purposes of this §9.8(c),
Construction-in-Process shall not include so-called “build to suit” properties
which are (i) seventy-five (75%) percent pre-leased (by rentable square foot)
to
tenants which have a minimum credit rating of BBB-from S&P or Baa3 from
Moody’s, as the case may be, or which have a financial condition reasonably
acceptable to the Majority Lenders (provided that the Borrower shall submit
any
such request for the Lender’s acceptance of a tenant’s financial condition to
the Administrative Agent in writing, and the Administrative Agent shall, in
turn, promptly forward such request to each Lender; each Lender shall then
have
five (5) Business Days from its deemed receipt of such request to approve or
disapprove of such tenant’s financial condition, with any Lender’s failure to
send notice of disapproval to the Administrative Agent within five (5) Business
Days being deemed to be its approval) and (ii) in substantial compliance, with
respect to both time and cost, with the original construction budget and
construction schedule, as amended by change orders or otherwise updated. A
property shall continue to be considered Construction-in-Process until the
date
of substantial completion of such property; from such date, it will continue
to
be valued (for financial covenant compliance purposes) as if it were
Construction-in-Process until the earlier of (i) the end of four (4) consecutive
calendar quarters following substantial completion and (ii) the date upon which
such property is 90% leased to tenants who are then paying rent.
(d) As
at the
end of any fiscal quarter or other date of measurement, the value of
Indebtedness of third parties to the Borrower, the Guarantors, or their
Subsidiaries for borrowed money which is unsecured or is secured by mortgage
liens (valued at the book value of such Indebtedness) shall not exceed fifteen
(15%) percent of Consolidated Total Capitalization.
(e) The
Investments set forth in clauses (a) through (d) above, taken in the aggregate,
shall not exceed thirty (30%) percent of Consolidated Total
Capitalization.
(f) Investments
in Real Estate other than office, office flex, and industrial/warehouse
properties, taken in the aggregate, shall not exceed fifteen (15%) of
Consolidated Total Capitalization.
§9.9. Covenant
Calculations.
(a) For
purposes of the calculations to be made pursuant to §§9.1-9.8 (and the defined
terms relevant thereto, including, without limitation, those relating to
“interest expense” and “fixed charges”), references to Indebtedness or
liabilities of the Borrower shall mean Indebtedness or liabilities (including,
without limitation, Consolidated Total Liabilities) of the Borrower,
plus
(but
without double-counting):
(i) all
Indebtedness or liabilities of the Operating Subsidiaries, the Guarantors and
any other wholly-owned Subsidiary (excluding any such Indebtedness or
liabilities owed to the Borrower or any Guarantor; provided
that, as
to MCRC, MCRC has a corresponding Indebtedness or liability to the
Borrower),
(ii) all
Indebtedness or liabilities of each Partially-Owned Entity (including for
Capitalized Leases), but only to the extent, if any, that said Indebtedness
or
liability is Recourse to the Borrower, the Guarantors or their respective
Subsidiaries or any of their respective assets (other than their respective
interests in such Partially-Owned Entity); provided
that
Recourse Indebtedness arising from such Person’s acting as general partner or
guarantor of collection only (and not of payment or performance) of a
Partially-Owned Entity shall be limited to the amount by which the Indebtedness
exceeds the liquidation value of the Real Estate and other assets owned by
such
Partially-Owned Entity if the creditor owed such Indebtedness is required by
law
or by contract to seek repayment of such Indebtedness from such Real Estate
and
other assets before seeking repayment from such Person, and
(iii) Indebtedness
or liabilities of each Partially-Owned Entity to the extent of the pro-rata
share of such Indebtedness or liability allocable to the Borrower, the
Guarantors or their respective Subsidiaries without double
counting.
(b) For
purposes of §§9.1-9.8 hereof, Consolidated Adjusted Net Income, Revised
Consolidated Adjusted Net Income, Adjusted Unencumbered Property NOI and Revised
Adjusted Unencumbered Property NOI (and all defined terms and calculations
using
such terms) shall be adjusted (i) to deduct the actual results of any Real
Estate disposed of by the Borrower, a Guarantor or any of their respective
Subsidiaries during the relevant fiscal period (for Revised Consolidated
Adjusted Net Income and Revised Adjusted Unencumbered Property NOI only), and
(ii) to the extent applicable, to include the pro rata share of results
attributable to the Borrower from unconsolidated Subsidiaries of MCRC, the
Borrower and their respective Subsidiaries and from unconsolidated
Partially-Owned Entities; provided
that
income shall not be included until received without restriction in cash by
the
Borrower.
(c) For
purposes of §§9.1 - 9.8 hereof, together with each other section of this
Agreement that refers or relates to GAAP, if any change in GAAP after the
Financial Statement Date results in a change in the calculation to be performed
in any such section, solely as a result of such change in GAAP, then
(i) the Borrower’s compliance with such covenant(s) or section shall be
determined on the basis of GAAP in effect as of the Financial Statement Date,
and (ii) the Administrative Agent and the Borrower shall negotiate in good
faith a modification of any such covenant(s) or sections so that the economic
effect of the calculation of such covenant(s) or sections using GAAP as so
changed is as close as feasible to what the economic effect of the calculation
of such covenant(s) or sections would have been using GAAP in effect as of
the
Financial Statement Date.
(d) For
purposes of §§9.1-9.8 hereof, Consolidated Total Capitalization and the Section
9.6 Sum (as such term is defined in §9.6 hereof) shall be adjusted (without
double-counting) to include the Eligible Cash 1031 Proceeds from any Real Estate
disposed of by the Borrower, a Guarantor or any of their respective Subsidiaries
and for which the results have been deducted pursuant to §9.9(b).
§10. CONDITIONS
TO THE CLOSING DATE.
The
obligations of the Lenders to make the Term Loan shall be subject to the
satisfaction of the following conditions precedent:
§10.1. Loan
Documents.
Each of
the Loan Documents shall have been duly executed and delivered by the respective
parties thereto and shall be in full force and effect.
§10.2. Certified
Copies of Organization Documents.
The
Administrative Agent shall have received (i) from the Borrower and each of
the
Subsidiary Guarantors a copy, certified as of the Closing Date by a duly
authorized officer of such Person (or its general partner, if such Person is
a
partnership, or its managing member, if such Person is a limited liability
company) to be true and complete, of each of its certificate of limited
partnership, agreement of limited partnership, incorporation documents, by-laws,
certificate of formation, operating agreement and/or other organizational
documents as in effect on the Closing Date; provided that any Subsidiary
Guarantor which has previously delivered such organizational documents may
satisfy this condition by providing a certificate of a duly authorized officer
of such Person as to the absence of changes or as to the changes, if any, to
those organizational documents previously delivered, and (ii) from MCRC a copy,
certified as of a date within thirty (30) days prior to the Closing Date by
the
appropriate officer of the State of Maryland to be true and correct, of the
corporate charter of MCRC, in each case along with any other organization
documents of the Borrower and each Subsidiary Guarantor (and its general
partner, if such Person is a partnership, or its managing member, if such Person
is a limited liability company) or MCRC, as the case may be, and each as in
effect on the date of such certification.
§10.3. By-laws;
Resolutions.
All
action on the part of the Borrower, the Subsidiary Guarantors and MCRC necessary
for the valid execution, delivery and performance by the Borrower, the
Subsidiary Guarantors and MCRC of this Agreement and the other Loan Documents
to
which any of them is or is to become a party as of the Closing Date shall have
been duly and effectively taken, and evidence thereof satisfactory to the
Lenders shall have been provided to the Administrative Agent. Without limiting
the foregoing, the Administrative Agent shall have received from MCRC true
copies of its by-laws and the resolutions adopted by its board of directors
authorizing the transactions described herein and evidencing the due
authorization, execution and delivery of the Loan Documents to which MCRC and
the Borrower and Subsidiary Guarantors of which MCRC is a controlling Person
are
a party, each certified by the secretary as of a recent date to be true and
complete.
§10.4. Incumbency
Certificate; Authorized Signers.
The
Administrative Agent shall have received from each of the Borrower, MCRC and
the
Subsidiary Guarantors an incumbency certificate, dated as of the Closing Date,
signed by a duly authorized officer of such Person and giving the name of each
individual who shall be authorized: (a) to sign, in the name and on behalf
of
such Person, each of the Loan Documents to which such Person is or is to become
a party as of the Closing Date; (b) in the case of the Borrower, to make the
Loan Request and Conversion Requests on behalf of the Borrower; and (c) in
the
case of the Borrower, to give notices and to take other action on behalf of
the
Borrower and the Guarantors under the Loan Documents.
§10.5. Certificates
of Insurance.
The
Administrative Agent shall have received (a) current certificates of insurance
as to all of the insurance maintained by the Borrower and its Subsidiaries
on
the Real Estate (including flood insurance if necessary) from the insurer or
an
independent insurance broker, identifying insurers, types of insurance,
insurance limits, and policy terms; and (b) such further information and
certificates from the Borrower, its insurers and insurance brokers as the
Administrative Agent may reasonably request.
§10.6. Opinion
of Counsel Concerning Organization and Loan Documents.
Each of
the Lenders and the Administrative Agent shall have received favorable opinions
addressed to the Lenders and the Administrative Agent in form and substance
reasonably satisfactory to the Lenders and the Administrative Agent from (a)
Pryor Cashman Sherman & Flynn LLP, as counsel to the Borrower, the
Subsidiary Guarantors, MCRC and their respective Subsidiaries, with respect
to
New York and New Jersey law and certain matters of Delaware law, (b) Ballard
Spahr Andrews and Ingersoll, LLP, as corporate counsel to MCRC, with respect
to
Maryland law, (c) Wiggin & Dana, as counsel to the Borrower and the
Subsidiary Guarantors with respect to Connecticut law, (d) McCausland, Keen
& Buckman, as counsel to the Borrower and the Subsidiary Guarantors with
respect to Pennsylvania law, and (e) Jones, Day, Reavis & Pogue, as counsel
to the Borrower and the Subsidiary Guarantors with respect to Texas and
California law.
§10.7. Tax
Law Compliance.
Each of
the Lenders and the Administrative Agent shall also have received from Seyfarth
Shaw LLP, as counsel to the Borrower and MCRC, a favorable opinion addressed
to
the Lenders and the Administrative Agent, in form and substance
satisfactory to each of the Lenders and the Administrative Agent, with respect
to the qualification of MCRC as a REIT and certain other tax laws
matters.
§10.8. Certifications
from Government Officials.
The
Administrative Agent shall have received long-form certifications from
government officials evidencing the legal existence, good standing and foreign
qualification of the Borrower and each Guarantor, along with a certified copy
of
the certificate of limited partnership or certificate of incorporation of the
Borrower and each Guarantor, all as of the most recent practicable
date.
§10.9. Proceedings
and Documents.
All
proceedings in connection with the transactions contemplated by this Agreement,
the other Loan Documents and all other documents incident thereto shall be
satisfactory in form and substance to each of the Lenders’, the Borrower’s, the
Guarantors’ and the Administrative Agent’s counsel, and the Administrative
Agent, each of the Lenders and such counsel shall have received all information
and such counterpart originals or certified or other copies of such documents
as
the Administrative Agent may reasonably request.
§10.10. Fees.
The
Borrower shall have paid to the Administrative Agent, for the accounts of the
Lenders, the Arranger or for its own account, as applicable, all of the fees
and
expenses that are due and payable as of the Closing Date in accordance with
this
Agreement and the Fee Letter.
§10.11. Closing
Certificate; Compliance Certificate.
The
Borrower shall have delivered a Closing Certificate to the Administrative Agent,
the form of which is attached hereto as Exhibit
E.
The
Borrower shall have delivered a compliance certificate in the form of
Exhibit
D
hereto
evidencing compliance with the covenants set forth in §9 hereof, the absence of
any Default or Event of Default, and the accuracy of all representations and
warranties in all material respects.
§10.12. Subsequent Guarantors.
As a
condition to the effectiveness of any subsequent Guaranty, each subsequent
Guarantor shall deliver such documents, agreements, instruments and opinions
as
the Administrative Agent shall reasonably require as to such Guarantor and
the
Unencumbered Property owned or ground-leased by such Guarantor that are
analogous to the deliveries made by the Guarantors as of the Closing Date
pursuant to §10.2 through §10.6 and §10.8.
§10.13. No
Default Under Revolving Credit Agreement.
There
shall exist no Default or Event of Default under the Revolving Credit
Agreement.
§11. CONDITIONS
TO ALL BORROWINGS.
The
obligations of the Lenders to make the Term Loan on the Closing Date shall
also
be subject to the satisfaction of the following conditions
precedent:
§11.1. Representations
True; No Event of Default; Compliance Certificate.
Each of
the representations and warranties of the Borrower and the Guarantors contained
in this
Agreement,
the other Loan Documents or in any document or instrument delivered pursuant
to
or in connection with this Agreement shall be true as of the date as of which
they were made and shall also be true at and as of the time of the making of
such Loan with the same effect as if made at and as of that time (except to
the
extent (i) of changes resulting from transactions contemplated or not prohibited
by this Agreement or the other Loan Documents (ii) of changes occurring in
the
ordinary course of business, (iii) that such representations and warranties
relate expressly to an earlier date and (iv) that such untruth is disclosed
when
first known to the Borrower or a Guarantor in the next delivered compliance
certificate, and is a Non-Material Breach); and no Default or Event of Default
under this Agreement shall have occurred and be continuing on the date of any
Loan Request or on the Drawdown Date of any Loan. Each of the Lenders shall
have
received a certificate of the Borrower as provided in §2.5(iv)(c) or
§2A.9.
§11.2. No
Legal Impediment.
No
change shall have occurred in any law or regulations thereunder or
interpretations thereof that in the reasonable opinion of the Administrative
Agent or any Lender would make it illegal for any Lender to make such
Loan.
§11.3. Governmental
Regulation.
Each
Lender shall have received such statements in substance and form reasonably
satisfactory to such Lender as such Lender shall require for the purpose of
compliance with any applicable regulations of the Comptroller of the Currency
or
the Board of Governors of the Federal Reserve System.
§12. EVENTS
OF DEFAULT; ACCELERATION; ETC.
§12.1. Events
of Default and Acceleration.
If any
of the following events (“Events
of Default”)
shall
occur:
(a) the
Borrower shall fail to pay any principal of the Loans when the same shall become
due and payable, whether at the stated date of maturity or any accelerated
date
of maturity or at any other date fixed for payment; none of the foregoing is
a
Non-Material Breach.
(b) the
Borrower shall fail to pay any interest on the Loans or any other sums due
hereunder or under any of the other Loan Documents (including, without
limitation, amounts due under §7.15) when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at
any other date fixed for payment, and such failure continues for five (5) days;
none of the foregoing is a Non-Material Breach.
(c) the
Borrower or any Guarantor or any of their respective Subsidiaries shall fail
to
comply with any of their respective covenants contained in: §7.1 within ten (10)
days of any such amount being due (except with respect to interest, fees and
other sums covered by clause (b) above or principal covered by clause (a)
above); §7.6 (as to the legal existence of MCRLP for which no period to cure is
granted); §7.7 (as to the legal existence and
REIT
status of MCRC for which no period to cure is granted); §7.12; §7.19 within ten
(10) days of the occurrence of same; §8 (except with respect to §8.4 for
Non-Material Breaches only, or §8.5); or §9; none of the foregoing is a
Non-Material Breach.
(d) the
Borrower or any Guarantor or any of their respective Subsidiaries shall fail
to
perform any other term, covenant or agreement contained herein or in any other
Loan Document (other than those specified elsewhere in this §12) and such
failure continues for thirty (30) days (other than a Non-Material Breach
(excluding §8.4 for which the Non-Material Breach must be cured within the
thirty or ten days, as applicable, provided therein) and such cure period shall
not extend any specific cure period set forth in any term, covenant or agreement
covered by this §12.1(d)).
(e) any
representation or warranty of the Borrower or any Guarantor or any of their
respective Subsidiaries in this Agreement or any of the other Loan Documents
or
in any other document or instrument delivered pursuant to or in connection
with
this Agreement shall prove to have been false in any material respect upon
the
date when made or deemed to have been made or repeated (other than a
Non-Material Breach).
(f) the
Borrower or any Guarantor or any of their respective Subsidiaries shall (i)
fail
to pay at maturity, or within any applicable period of grace or cure, any
obligation for borrowed money or credit received by it (other than current
obligations in the ordinary course of business) or in respect of any Capitalized
Leases (x) in respect of any Recourse obligations or credit in an aggregate
amount in excess of $20,000,000 (determined in accordance with §9.9 hereof) or
(y) in respect of any Without Recourse obligations or credit in an aggregate
amount in excess of $100,000,000 (determined in accordance with §9.9 hereof), or
(ii) fail to observe or perform any material term, covenant or agreement
contained in any agreement by which it is bound, evidencing or securing borrowed
money or credit received (other than current obligations in the ordinary course
of business) or in respect of any Capitalized Leases (x) in respect of any
Recourse obligations or credit in an aggregate amount in excess of $20,000,000
(determined in accordance with §9.9 hereof) for such period of time (after the
giving of appropriate notice if required) as would permit the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity
thereof or (y) in respect of any Without Recourse obligations or credit in
an
aggregate amount in excess of $100,000,000 (determined in accordance with §9.9
hereof), and the holder or holders thereof shall have accelerated the maturity
thereof; none of the foregoing is a Non-Material Breach.
(g) any
Credit Party (other than for a Permitted Event) shall make an assignment for
the
benefit of creditors, or admit in writing its inability to pay or generally
fail
to pay its debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or receiver of
any
Credit Party or of any substantial part of the properties or assets of any
Credit Party (other than for a Permitted Event) or shall commence any case
or
other proceeding relating to any Credit Party (other than for a Permitted Event)
under any bankruptcy, reorganization, arrangement, insolvency, readjustment
of
debt, dissolution or liquidation or similar law of any jurisdiction, now or
hereafter
in effect, or shall take any action to authorize or in furtherance of any of
the
foregoing, or if any such petition or application shall be filed or any such
case or other proceeding shall be commenced against any Credit Party (other
than
for a Permitted Event) and (i) any Credit Party (other than for a Permitted
Event) shall indicate its approval thereof, consent thereto or acquiescence
therein or (ii) any such petition, application, case or other proceeding shall
continue undismissed, or unstayed and in effect, for a period of seventy-five
(75) days.
(h) a
decree
or order is entered appointing any trustee, custodian, liquidator or receiver
or
adjudicating any Credit Party (other than for a Permitted Event) bankrupt or
insolvent, or approving a petition in any such case or other proceeding, or
a
decree or order for relief is entered in respect of any Credit Party (other
than
for a Permitted Event) in an involuntary case under federal bankruptcy laws
as
now or hereafter constituted, and such proceeding, decree or order shall
continue undismissed, or unstayed and in effect, for a period of seventy-five
(75) days.
(i) there
shall remain in force, undischarged, unsatisfied and unstayed, for a period
of
more than thirty (30) days, any uninsured final judgment against the Borrower,
any Guarantor or any of their respective Subsidiaries that, with other
outstanding uninsured final judgments, undischarged, unsatisfied and unstayed,
against the Borrower, any Guarantor or any of their respective Subsidiaries
exceeds in the aggregate $10,000,000 (other than for a Permitted
Event).
(j) any
of
the Loan Documents or any material provision of any Loan Documents shall be
canceled, terminated, revoked or rescinded otherwise than in accordance with
the
terms thereof or with the express prior written agreement, consent or approval
of the Administrative Agent, or any Guaranty shall be canceled, terminated,
revoked or rescinded at any time or for any reason whatsoever, or any action
at
law, suit or in equity or other legal proceeding to make unenforceable, cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on behalf
of the Borrower or any of its Subsidiaries or any Guarantor or any of its
Subsidiaries, or any court or any other governmental or regulatory authority
or
agency of competent jurisdiction shall make a determination that, or issue
a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable as to any material terms
thereof, other than as any of the same may occur from a Permitted Event
permitted by this Agreement.
(k) any
“Event of Default” or default (after notice and expiration of any period of
grace, to the extent provided, and if none is specifically provided or denied,
then for a period of thirty (30) days after notice), as defined or provided
in
any of the other Loan Documents, shall occur and be continuing.
(l) the
Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed
Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding
$5,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal
liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring
aggregate annual
payments
exceeding $5,000,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make
a
required installment or other payment (within the meaning of §302(f)(1) of
ERISA), provided
that the
Administrative Agent determines in its reasonable discretion that such event
(A)
could be expected to result in liability of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount
exceeding $5,000,000 and (B) could constitute grounds for the termination of
such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan;
or (ii) the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC
of
proceedings to terminate such Guaranteed Pension Plan; to the extent that any
breach of §6.16 or §7.18 is a matter that constitutes a specific breach of a
provision of this §12.1(l), the breach of §6.16 or §7.18 shall not be a
Non-Material Breach.
(m) Notwithstanding
the provisions of §8.3(a), any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall
have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by
the Securities and Exchange Commission under said Act) of 40% or more of the
outstanding shares of voting stock of MCRC in a transaction or a series of
related transactions and, if at any time within one (1) year following such
acquisition (i) fewer than three (3) of the five (5) Key Management Individuals
remain active in the executive and/or operational management in their current
(or comparable) positions with MCRC or (ii) individuals who were directors
of
MCRC on the date of such acquisition shall cease to constitute a majority of
the
voting members of the board of directors of MCRC. For purposes hereof, “Key
Management Individuals” shall mean and include Mitchell E. Hersh, Barry
Lefkowitz, Roger W. Thomas, Michael A. Grossman, and Anthony Krug and such
replacement individuals as are reasonably acceptable to (and consented to in
writing by) the Majority Lenders.
(n) Any
“Event of Default” shall occur and be continuing under the Revolving Credit
Agreement.
then,
and
in any such event, so long as the same may be continuing, the Administrative
Agent with the consent of the Required Lenders may, and upon the request of
the
Required Lenders shall, by notice in writing to the Borrower, declare all
amounts owing with respect to this Agreement, the Notes and the other Loan
Documents to be, and they shall thereupon forthwith become, immediately due
and
payable without presentment, demand, protest or other notice of any kind, all
of
which are hereby expressly waived by the Borrower and each Guarantor;
provided
that in
the event of any Event of Default specified in §12.1(g) or §12.1(h), all such
amounts shall become immediately due and payable automatically and without
any
requirement of notice from any of the Lenders or the any of Administrative
Agent
or action by the Lenders or the Administrative Agent.
A
Non-Material Breach shall require that the Borrower commence and continue to
exercise reasonable diligent efforts to cure such breach (which shall occur
within any specific time period for curing a Non-Material Breach elsewhere
set
forth in this Agreement if any). Such efforts may include (and for a Permitted
Event shall include) the release of the affected Person(s) (other than MCRC)
as
the Guarantor pursuant to §5 so long as such release (i) cures such Non-Material
Breach (ii) does not otherwise cause a Default or Event of Default, and (iii)
does not have a Material Adverse Effect on the Borrower, the remaining
Guarantors, and their respective Subsidiaries, taken as a whole. Continuing
failure of the Borrower to comply with the requirements to commence and continue
to exercise reasonable diligent efforts to cure such Non-Material Breach shall
constitute a material breach after notice from the Administrative
Agent.
§12.2. Termination
of Commitments.
If any
one or more Events of Default specified in §12.1(g) or §12.1(h) shall occur, any
unused portion of the Commitments hereunder shall forthwith terminate and the
Lenders shall be relieved of all obligations to make Loans to the Borrower.
If
any other Event of Default shall have occurred and be continuing, whether or
not
the Lenders shall have accelerated the maturity of the Loans pursuant to §12.1,
the Administrative Agent with the consent of the Required Lenders may, and
upon
the request of the Required Lenders shall, by notice to the Borrower, terminate
the unused portion of the credit hereunder, and upon such notice being given
such unused portion of the credit hereunder shall terminate immediately and
each
of the Lenders shall be relieved of all further obligations to make Loans.
No
such termination of the credit hereunder shall relieve the Borrower or any
Guarantor of any of the Obligations or any of its existing obligations to the
Lenders arising under other agreements or instruments.
§12.3. Remedies.
In the
event that one or more Events of Default shall have occurred and be continuing,
whether or not the Lenders shall have accelerated the maturity of the Loans
pursuant to §12.1, the Required Lenders may direct the Administrative Agent to
proceed to protect and enforce the rights and remedies of the Administrative
Agent and the Lenders under this Agreement, the Notes, any or all of the other
Loan Documents or under applicable law by suit in equity, action at law or
other
appropriate proceeding (including for the specific performance of any covenant
or agreement contained in this Agreement or the other Loan Documents or any
instrument pursuant to which the Obligations are evidenced and, to the full
extent permitted by applicable law, the obtaining of the ex
parte
appointment of a receiver), and, if any amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right or remedy of the Administrative Agent and the Lenders
under the Loan Documents or applicable law. No remedy herein conferred upon
the
Lenders or the Administrative Agent or the holder of any Note is intended to
be
exclusive of any other remedy and each and every remedy shall be cumulative
and
shall be in addition to every other remedy given hereunder or under any of
the
other Loan Documents or now or hereafter existing at law or in equity or by
statute or any other provision of law.
§13. SETOFF.
Without
demand or notice, during the continuance of any Event of Default, any deposits
(general or specific, time or demand, provisional or final, regardless
of
currency,
maturity, or the branch at which such deposits are held, but specifically
excluding tenant security deposits, other fiduciary accounts and other
segregated escrow accounts required to be maintained by the Borrower for the
benefit of any third party) or other sums credited by or due from any of the
Lenders to the Borrower or its Subsidiaries or any other property of the
Borrower or its Subsidiaries in the possession of the Administrative Agent
or a
Lender may be applied to or set off against the payment of the Obligations.
Each
of the Lenders agrees with each other Lender that (a) if pursuant to any
agreement between such Lender and the Borrower (other than this Agreement or
any
other Loan Document), an amount to be set off is to be applied to Indebtedness
of the Borrower to such Lender, other than with respect to the Obligations,
such
amount shall be applied ratably to such other Indebtedness and to the
Obligations, and (b) if such Lender shall receive from the Borrower or its
Subsidiaries, whether by voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the Obligations by proceedings
against the Borrower or its Subsidiaries at law or in equity or by proof thereof
in bankruptcy, reorganization, liquidation, receivership or similar proceedings,
or otherwise, and shall retain and apply to the payment of the Note or Notes
held by such Lender any amount in excess of its ratable portion of the payments
received by all of the Lenders with respect to the Notes held by all of the
Lenders, such Lender will make such disposition and arrangements with the other
Lenders with respect to such excess, either by way of distribution, pro
tanto
assignment of claims, subrogation or otherwise, as shall result in each Lender
receiving in respect of the Notes held by it, its proportionate payment as
contemplated by this Agreement; provided
that if
all or any part of such excess payment is thereafter recovered from such Lender,
such disposition and arrangements shall be rescinded and the amount restored
to
the extent of such recovery, but without interest. Notwithstanding the
foregoing, no Lender shall exercise a right of setoff if such exercise would
limit or prevent the exercise of any other remedy or other recourse against
the
Borrower or its Subsidiaries; and provided
further,
if a
Lender receives any amount in connection with the enforcement by such Lender
against any particular assets held as collateral for Secured Indebtedness
existing on the date hereof and unrelated to the Obligations which is owing
to
such Lender by the Borrower, such Lender shall not be required to ratably apply
such amount to the Obligations.
§14. THE
ADMINISTRATIVE AGENT.
§14.1. Authorization.
(a) The
Administrative Agent is authorized to take such action on behalf of each of
the
Lenders and to exercise all such powers as are hereunder and under any of the
other Loan Documents and any related documents delegated to the Administrative
Agent, together with such powers as are reasonably incident thereto,
provided
that no
duties or responsibilities not expressly assumed herein or therein shall be
implied to have been assumed by the Administrative Agent. The relationship
between the Administrative Agent and the Lenders is and shall be that of agent
and principal only, and nothing contained in this Agreement or any of the other
Loan Documents shall be construed to constitute the Administrative Agent as
a
trustee or fiduciary for any Lender. Subject to the terms and conditions hereof,
the Administrative Agent shall discharge its functions as “Administrative
Agent”
with the same degree of care as it performs administrative services for loans
in
which it is the sole lender.
(b) The
Borrower, without further inquiry or investigation, shall, and is hereby
authorized by the Lenders to, assume that all actions taken by the
Administrative Agent hereunder and in connection with or under the Loan
Documents are duly authorized by the Lenders. The Lenders shall notify the
Borrower of any successor to Administrative Agent in accordance with §14.11 by a
writing signed by Required Lenders.
§14.2. Employees
and Agents.
The
Administrative Agent may exercise its powers and execute its duties by or
through employees or agents and shall be entitled to take, and to rely on,
advice of counsel concerning all matters pertaining to its rights and duties
under this Agreement and the other Loan Documents. The Administrative Agent
may
utilize the services of such Persons as the Administrative Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of
any
such Persons shall be paid by the Borrower.
§14.3. No
Liability.
Neither
the Administrative Agent, nor any of its shareholders, directors, officers
or
employees nor any other Person assisting them in their duties nor any agent
or
employee thereof, shall be liable for any waiver, consent or approval given
or
any action taken, or omitted to be taken, in good faith by it or them hereunder
or under any of the other Loan Documents, or in connection herewith or
therewith, or be responsible for the consequences of any oversight or error
of
judgment whatsoever, except that the Administrative Agent shall be liable for
losses due to its willful misconduct or gross negligence.
§14.4. No
Representations.
The
Administrative Agent shall not be responsible for the execution or validity
or
enforceability of this Agreement, the Notes, or any of the other Loan Documents
or for the validity, enforceability or collectibility of any such amounts owing
with respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of any
Guarantor or the Borrower or any of their respective Subsidiaries, or be bound
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements in this Agreement or the other Loan
Documents. The Administrative Agent shall not be bound to ascertain whether
any
notice, consent, waiver or request delivered to it by the Borrower or any
Guarantor or any holder of any of the Notes shall have been duly authorized
or
is true, accurate and complete. The Administrative Agent has not made nor does
it now make any representations or warranties, express or implied, nor does
it
assume any liability to the Lenders, with respect to the creditworthiness or
financial condition of the Borrower or any of its Subsidiaries or any Guarantor
or any of the Subsidiaries or any tenant under a Lease or any other entity.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.
§14.5. Payments.
(a) A
payment
by the Borrower to the Administrative Agent hereunder or any of the other Loan
Documents for the account of any Lender shall constitute a payment to such
Lender. The Administrative Agent agrees to distribute to each Lender such
Lender’s pro rata share of payments received by the Administrative Agent for the
account of the Lenders, as provided herein or in any of the other Loan
Documents. All such payments shall be made on the date received, if before
1:00
p.m., and if after 1:00 p.m., on the next Business Day. If payment is not made
on the day received, interest thereon at the overnight federal funds effective
rate shall be paid pro rata to the Lenders.
(b) If
in the
reasonable opinion of the Administrative Agent the distribution of any amount
received by it in such capacity hereunder, under the Notes or under any of
the
other Loan Documents might involve it in material liability, it may refrain
from
making distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction, provided
that
interest thereon at the overnight federal funds effective rate shall be paid
pro
rata to the Lenders. If a court of competent jurisdiction shall adjudge that
any
amount received and distributed by the Administrative Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either
repay to the Administrative Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.
(c) Notwithstanding
anything to the contrary contained in this Agreement or any of the other Loan
Documents, any Lender that fails (i) to make available to the Administrative
Agent its pro rata share of any Loan or (ii) to comply with the provisions
of
§13 with respect to making dispositions and arrangements with the other Lenders,
where such Lender’s share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and payable
to all of the Lenders, in each case as, when and to the full extent required
by
the provisions of this Agreement, or to adjust promptly such Lender’s
outstanding principal and its pro rata Commitment Percentage as provided in
§2.1, shall be deemed delinquent (a “Delinquent
Lender”)
and
shall be deemed a Delinquent Lender until such time as such delinquency is
satisfied. A Delinquent Lender shall be deemed to have assigned any and all
payments due to it from the Borrower, whether on account of outstanding Loans,
interest, fees or otherwise, to the remaining nondelinquent Lenders for
application to, and reduction of, their respective pro rata shares of all
outstanding Loans. The Delinquent Lender hereby authorizes the Administrative
Agent to distribute such payments to the nondelinquent Lenders in proportion
to
their respective pro rata shares of all outstanding Loans. If not previously
satisfied directly by the Delinquent Lender, a Delinquent Lender shall be deemed
to have satisfied in full a delinquency when and if, as a result of application
of the assigned payments to all outstanding Loans of the nondelinquent Lenders,
the Lenders’ respective pro rata shares of all outstanding Loans have returned
to those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
§14.6. Holders
of Notes.
The
Administrative Agent may deem and treat the payee of any Notes as the absolute
owner or purchaser thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
§14.7. Indemnity.
The
Lenders ratably and severally agree hereby to indemnify and hold harmless the
Administrative Agent (in its capacity as such and not in its capacity as a
Lender) and its Affiliates from and against any and all claims, actions and
suits (whether groundless or otherwise), losses, damages, costs, expenses
(including any expenses for which the Administrative Agent has not been
reimbursed by the Borrower as required by §15), and liabilities of every nature
and character arising out of or related to this Agreement, the Notes, or any
of
the other Loan Documents or the transactions contemplated or evidenced hereby
or
thereby, or the Administrative Agent’s actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the
Administrative Agent’s or such Affiliate’s willful misconduct or gross
negligence. Nothing in this §14.7 shall limit any indemnification obligations of
the Borrower hereunder.
§14.8. Administrative
Agent as Lender.
In its
individual capacity as a Lender, JPMorgan shall have the same obligations and
the same rights, powers and privileges in respect to its Commitment and the
Loans made by it, and as the holder of any of the Notes, as it would have were
it not also the Administrative Agent. Except as expressly set forth herein,
the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower,
the Guarantors or their Subsidiaries that is communicated to or obtained by
the
bank serving as the Administrative Agent or any of its Affiliates in any
capacity.
§14.9. Notification
of Defaults and Events of Default.
Each
Lender hereby agrees that, upon learning of the existence of a default, Default
or an Event of Default, it shall (to the extent notice has not previously been
provided) promptly notify the Administrative Agent thereof. The Administrative
Agent hereby agrees that upon receipt of any notice under this §14.9 it shall
promptly notify the other Lenders of the existence of such default, Default
or
Event of Default.
§14.10. Duties
in the Case of Enforcement.
In case
one or more Events of Default have occurred and shall be continuing, and whether
or not acceleration of the Obligations shall have occurred, the Administrative
Agent shall, if (a) so requested by the Required Lenders and (b) the Lenders
have provided to the Administrative Agent such additional indemnities and
assurances against expenses and liabilities as the Administrative Agent may
reasonably request, proceed to enforce the provisions of this Agreement and
exercise all or any such other legal and equitable and other rights or remedies
as it may have in respect of enforcement of the Lenders’ rights against the
Borrower and the Guarantors under this Agreement and the other Loan Documents.
The Required Lenders may direct the Administrative Agent in writing as to the
method and the extent (other than when such direction as to extent requires
Unanimous Lender Approval under §25) of any such enforcement,
the Lenders (including any Lender which is not one of the Required Lenders)
hereby agreeing to ratably and severally indemnify and hold the Administrative
Agent harmless from all liabilities incurred in respect of all actions taken
or
omitted in accordance with such directions other than actions taken in gross
negligence or willful misconduct, provided
that the
Administrative Agent need not comply with any such direction to the extent
that
the Administrative Agent reasonably believes the Administrative Agent’s
compliance with such direction to be unlawful or commercially unreasonable
in
any applicable jurisdiction.
§14.11. Successor
Administrative Agent.
JPMorgan, or any successor Administrative Agent, may resign as Administrative
Agent at any time by giving written notice thereof to the Lenders and to the
Borrower. In addition, the Required Lenders may remove the Administrative Agent
in the event of the Administrative Agent’s gross negligence or willful
misconduct. Any such resignation or removal shall be effective upon appointment
and acceptance of a successor Administrative Agent, as hereinafter provided.
Subject to the next sentence, any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent, which
is a Lender under this Agreement, provided
that so
long as no Default or Event of Default has occurred and is continuing the
Borrower shall have the right to approve any successor Administrative Agent,
which approval shall not be unreasonably withheld. If, in the case of a
resignation by the Administrative Agent, no successor Administrative Agent
shall
have been so appointed by the Required Lenders and, if applicable, approved
by
the Borrower, and shall have accepted such appointment, within thirty (30)
days
after the retiring Administrative Agent’s giving of notice of resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint any
one
of the other Lenders as a successor Administrative Agent; provided
that the
Administrative Agent shall have first submitted the names of two (2) Lenders
to
the Borrower and, within ten (10) Business Days of such submission the Borrower
shall not have selected one of such Lenders as the successor Administrative
Agent. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Administrative Agent, and the retiring
or
removed Administrative Agent shall be discharged from all further duties and
obligations as Administrative Agent under this Agreement. After any
Administrative Agent’s resignation or removal hereunder as Administrative Agent,
the provisions of this §14 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
§14.12. Notices.
Any
notices or other information required hereunder to be provided to the
Administrative Agent and any formal statement or notice given by the
Administrative Agent to the Borrower or any Lender shall be promptly forwarded
by the Administrative Agent to each of the other Lenders.
§15. EXPENSES.
The
Borrower agrees to pay (a) the reasonable costs of incurred by JPMorgan and
the
Arranger in producing this Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) the reasonable fees,
expenses
and
disbursements of one outside counsel to the Administrative Agent, and one local
counsel to the Administrative Agent, in each case incurred in connection with
the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (c) the
reasonable fees, expenses and disbursements of the Administrative Agent incurred
by the Administrative Agent in connection with the preparation, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, any amendments, modifications, approvals, consents
or
waivers hereto or hereunder, or the cancellation of any Loan Document upon
payment in full in cash of all of the Obligations or pursuant to any terms
of
such Loan Document for providing for such cancellation, including, without
limitation, the reasonable fees and disbursements (including, without
limitation, reasonable photocopying costs) of one counsel to the Administrative
Agent in preparing the documentation, (d) the reasonable fees, costs, expenses
and disbursements of the Arranger and its Affiliates incurred in connection
with
the syndication and/or participations of the Loans, including, without
limitation, costs of preparing syndication materials and photocopying costs,
subject to the limitations set forth in the Fee Letter, (e) all reasonable
expenses (including reasonable attorneys’ fees and costs, which attorneys may be
employees of any Lender or the Administrative Agent, and the fees and costs
of
appraisers, engineers, investment bankers, surveyors or other experts retained
by any Lender or the Administrative Agent in connection with any such
enforcement, preservation proceedings or dispute) incurred by any Lender or
the
Administrative Agent in connection with (i) the enforcement of or preservation
of rights under any of the Loan Documents against the Borrower or any of its
Subsidiaries or any Guarantor or the administration thereof after the occurrence
and during the continuance of a Default or Event of Default (including, without
limitation, expenses incurred in any restructuring and/or “workout” of the
Loans), and (ii) any litigation, proceeding or dispute whether arising hereunder
or otherwise, in any way related to any Lender’s or the Administrative Agent’s
relationship with the Borrower, any Guarantor or any of their Subsidiaries,
(f)
all reasonable fees, expenses and disbursements of the Administrative Agent
incurred in connection with UCC searches and (g) all costs incurred by the
Administrative Agent in the future in connection with its inspection of the
Unencumbered Properties after the occurrence and during the continuance of
an
Event of Default. The covenants of this §15 shall survive payment or
satisfaction of payment of amounts owing with respect to the Notes.
§16. INDEMNIFICATION.
The
Borrower agrees to indemnify and hold harmless the Administrative Agent, the
Arranger and each of the Lenders and the shareholders, directors, agents,
officers, employees, subsidiaries and affiliates of the Administrative Agent,
the Arranger and each of the Lenders from and against any and all claims,
actions and suits sought or brought by a third party, whether groundless or
otherwise, and from and against any and all liabilities, losses, settlement
payments, obligations, damages and expenses of every nature and character,
including reasonable legal fees and expenses, arising out of or resulting in
any
way from this Agreement or any of the other Loan Documents or the transactions
contemplated hereby or thereby or which otherwise arise in connection with
the
financing, including, without limitation, (a) any actual or proposed use by
the
Borrower
or
any of
its Subsidiaries of the proceeds of any of the Loans, (b) the Borrower or any
of
its Subsidiaries or any Guarantor entering into or performing this Agreement
or
any of the other Loan Documents, or (c) pursuant to §7.15 hereof, in each case
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any investigative, administrative or judicial
proceeding (whether or not such indemnified Person is a party thereto),
provided,
however,
that
the Borrower shall not be obligated under this §16 to indemnify any Person for
liabilities arising from such Person’s own gross negligence or willful
misconduct. In litigation, or the preparation therefor, the Borrower shall
be
entitled to select counsel reasonably acceptable to the Required Lenders, and
the Lenders (as approved by the Required Lenders) shall be entitled to select
their own supervisory counsel and, in addition to the foregoing indemnity,
the
Borrower agrees to pay promptly the reasonable fees and expenses of each such
counsel if (i) in the written opinion of counsel to the Administrative Agent,
the Arranger or the Lenders, as the case may be, use of counsel of the
Borrower’s choice could reasonably be expected to give rise to a conflict of
interest, (ii) the Borrower shall not have employed counsel reasonably
satisfactory to the Administrative Agent, the Arranger or the Lenders, as the
case may be, within a reasonable time after notice of the institution of any
such litigation or proceeding or (iii) the Borrower authorizes the
Administrative Agent, the Arranger or the Lenders, as the case may be, to employ
separate counsel at the Borrower’s expense. If and to the extent that the
obligations of the Borrower under this §16 are unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable law.
The
provisions of this §16 shall survive the repayment of the Loans and the
termination of the obligations of the Lenders hereunder and shall continue
in
full force and effect as long as the possibility of any such claim, action,
cause of action or suit exists.
§17. SURVIVAL
OF COVENANTS, ETC.
All
covenants, agreements, representations and warranties made herein, in the Notes,
in any of the other Loan Documents shall be deemed to have been relied upon
by
the Lenders and the Administrative Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by
the
Lenders of any of the Loans as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Agreement or the Notes
or
any of the other Loan Documents remains outstanding or any Lender has any
obligation to make any Loans. The indemnification obligations of the Borrower
provided herein and in the other Loan Documents shall survive the full repayment
of amounts due and the termination of the obligations of the Lenders hereunder
and thereunder to the extent provided herein and therein. All statements
contained in any certificate delivered to any Lender or the Administrative
Agent
at any time by or on behalf of the Borrower or any of its Subsidiaries or any
Guarantor pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower or such
Subsidiary or such Guarantor hereunder.
§18. ASSIGNMENT;
PARTICIPATIONS; ETC.
§18.1. Conditions
to Assignment by Lenders.
Except
as provided herein, each Lender may assign to one or more Eligible Assignees
all
or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and
the
same portion of the Loans at the time owing to it, the Notes held by it;
provided
that (a)
the Administrative Agent and, except (x) in the case of an assignment to a
Lender or a Lender Affiliate or (y) if an Event of Default shall have occurred
and be continuing, the Borrower each shall have the right to approve any
Eligible Assignee, which approval shall not be unreasonably withheld or delayed,
(b) each such assignment shall be of a constant, and not a varying, percentage
of all the assigning Lender’s rights and obligations under this Agreement as to
such interests, rights and obligations under this Agreement so assigned, (c)
except in the case of an assignment to a Lender or a Lender Affiliate, each
such
assignment shall be in a minimum amount of $1,000,000 or an integral multiple
of
$1,000,000 in excess thereof, (d) unless the assigning Lender shall have
assigned its entire Commitment, each Lender shall have at all times an amount
of
its Commitment of not less than $10,000,000 and (e) the parties to such
assignment shall execute and deliver to the Administrative Agent, for recording
in the Register (as hereinafter defined), an assignment and assumption,
substantially in the form of Exhibit
F hereto
(an “Assignment
and Assumption”),
together with any Notes subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Assumption, which effective date shall be at least five
(5) Business Days after the execution thereof, (i) the assignee thereunder
shall
be a party hereto and, to the extent provided in such Assignment and Assumption,
have the rights and obligations of a Lender hereunder and thereunder, and (ii)
the assigning Lender shall, to the extent provided in such assignment and upon
payment to the Administrative Agent of the registration fee referred to in
§18.3, be released from its obligations under this Agreement. If the consent
of
the Borrower is required pursuant to this §18.1, and the Borrower does not
respond to the Administrative Agent’s request for consent within ten (10)
Business Days of receipt of such written request, the consent shall be deemed
given.
§18.2. Certain
Representations and Warranties; Limitations; Covenants.
By
executing and delivering an Assignment and Assumption, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows: (a) other than the representation and warranty that it is
the
legal and beneficial owner of the interest being assigned thereby free and
clear
of any adverse claim, the assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto; (b) the assigning Lender makes no representation
or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any of its Subsidiaries or any Guarantor or any other Person
primarily or secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower or any of its Subsidiaries or any
Guarantor or any other Person primarily or secondarily liable in
respect
of
any of
the Obligations of any of their obligations under this Agreement or any of
the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (c) such assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent financial statements
referred to in §6.4 and §7.4 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Assumption; (d) such assignee will, independently and
without reliance upon the assigning Lender, the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under this Agreement; (e) such assignee represents and
warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and the other Loan Documents
as
are delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; (g) such
assignee agrees that it will perform in accordance with their terms all of
the
obligations that by the terms of this Agreement are required to be performed
by
it as a Lender; and (h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Assumption.
§18.3. Register.
The
Administrative Agent shall maintain a copy of each Assignment and Assumption
delivered to it and a register or similar list (the “Register”)
for
the recordation of the names and addresses of the Lenders and the Commitment
Percentages of, and principal amount of the Loans owing to, the Lenders from
time to time. The entries in the Register shall be conclusive, in the absence
of
manifest error, and the Borrower, the Administrative Agent and the Lenders
may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower and the Lenders at any reasonable time and from
time
to time upon reasonable prior notice. Upon each such recordation other than
assignments pursuant to §4.11, the assigning Lender agrees to pay to the
Administrative Agent a registration fee in the sum of $3,500.
§18.4. New
Notes.
Upon
its receipt of an Assignment and Assumption executed by the parties to such
assignment, together with each Note subject to such assignment, the
Administrative Agent shall (a) record the information contained therein in
the
Register, and (b) give prompt written notice thereof to the Borrower and the
Lenders (other than the assigning Lender). Within five (5) Business Days after
receipt of such notice, the Borrower, at its own expense, (i) shall execute
and
deliver to the Administrative Agent, in exchange for each surrendered Note,
a
new Note to the order of such Eligible Assignee in an amount equal to the amount
assumed by such Eligible Assignee pursuant to such Assignment and Assumption
and, if the assigning Lender has retained some portion of its obligations
hereunder, a new Note to the order of the assigning Lender in an amount equal
to
the amount retained by it hereunder and (ii) shall deliver an opinion from
counsel to the Borrower in substantially the form delivered on the Closing
Date
pursuant to §10.6 as to such new Notes. Such new Notes shall provide that they
are replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Assumption and shall
otherwise
be in substantially the form of the assigned Notes. The surrendered Notes shall
be canceled and returned to the Borrower.
§18.5. Participations.
Each
Lender may sell participations to one or more banks or other entities in all
or
a portion of such Lender’s rights and obligations under this Agreement and the
other Loan Documents without notice or consent of the Borrower, Administrative
Agent or any other party hereto; provided
that (a)
any such sale or participation shall not affect the rights and duties of the
selling Lender hereunder to the Borrower and the Administrative Agent and the
Lender shall continue to exercise all approvals, disapprovals and other
functions of a Lender, (b) the only rights granted to the participant pursuant
to such participation arrangements with respect to waivers, amendments or
modifications of, or approvals under, the Loan Documents shall be the rights
to
approve waivers, amendments or modifications that would reduce the principal
of
or the interest rate on any Loans, extend the term (other than any extension
contemplated by the definition of “Maturity
Date”)
or
increase the amount of the Commitment of such Lender as it relates to such
participant, reduce the amount of any fees to which such participant is entitled
or extend any regularly scheduled payment date for principal or interest, and
(c) no participant shall have the right to grant further participations or
assign its rights, obligations or interests under such participation to other
Persons without the prior written consent of the Administrative Agent.
§18.6. Pledge
by Lender.
Notwithstanding any other provision of this Agreement, any Lender at no cost
to
the Borrower may at any time pledge or assign a security interest in all or
any
portion of its interest and rights under this Agreement (including all or any
portion of its Notes) to any Person. No such pledge or the enforcement thereof
shall release the pledgor Lender from its obligations hereunder or under any
of
the other Loan Documents.
§18.7. Successors
and Assigns; No Assignment by Borrower.
This
Agreement and the other Loan Documents shall be binding upon the parties hereto
and their respective successors and assigns and shall inure to the benefit
of
the parties hereto and their successors and permitted assigns. Notwithstanding
the foregoing, the Borrower shall not assign or transfer any of its rights
or
obligations under any of the Loan Documents without prior Unanimous Lender
Approval (and any such attempted assignment or transfer by the Borrower without
such consent shall be null and void).
§18.8. Disclosure.
The
Borrower agrees that, in addition to disclosures made in accordance with
standard banking practices, any Lender may disclose information obtained by
such
Lender pursuant to this Agreement to assignees or participants and potential
assignees or participants hereunder. Any such disclosed information shall be
treated by any assignee or participant with the same standard of confidentiality
set forth in §7.10 hereof.
§19. NOTICES,
ETC.
Except
as otherwise expressly provided in this Agreement, all notices and other
communications made or required to be given pursuant to this Agreement or the
Notes shall be in writing and shall be delivered in hand, or mailed by United
States registered or certified first class mail, return receipt requested,
postage prepaid;
or sent by overnight courier; or sent by facsimile and confirmed by delivery
via
overnight courier or postal service; addressed as follows:
(a) if
to the
Borrower or any Guarantor, to it at Mack-Cali Realty Corporation, 343 Thornall
Street, Edison, New Jersey 08837-2206, Attention: Mr. Roger W. Thomas, Executive
Vice President and General Counsel and Mr. Barry Lefkowitz, Executive Vice
President and Chief Financial Officer, with a copy to William M. Levine, Esq.,
Pryor Cashman Sherman & Flynn LLP, 410 Park Avenue, New York, New York
10022, or to such other address for notice as the Borrower or any Guarantor
shall have last furnished in writing to the Administrative Agent;
(b) if
to the
Administrative Agent, to it at JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 1111 Fannin Street, 10th
Floor,
Houston, TX 77002, (Telecopy No. (713) 750-2892), with copies to JPMorgan Chase
Bank, N.A., 277 Park Avenue, 3rd
Floor,
New York, New York 10172, Attention: Donald Shokrian (Telecopy No. (646)
534-0574), Jacqueline F. Stein, Esq., Vice President and Associate General
Counsel (Telecopy No. 212-270-2930), and Stephen M. Miklus, Esq., Bingham
McCutchen LLP, 150 Federal Street, Boston, Massachusetts 02110, or at such
other
address for notice as the Administrative Agent, shall last have furnished in
writing to the Person giving the notice; and
(c) if
to any
Lender, at the address set forth on Schedule 1.2 hereto, or such other address
for notice as such Lender shall have last furnished in writing to the Person
giving the notice.
Any
such
notice or demand shall be deemed to have been duly given or made and to have
become effective (i) if delivered by hand, overnight courier or facsimile to
the
party to which it is directed, at the time of the receipt thereof by such party
or the sending of such facsimile and (ii) if sent by registered or certified
first-class mail, postage prepaid, return receipt requested on the fifth
Business Day following the mailing thereof.
§20. GOVERNING
LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND
SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS
OF THE STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE
OF LAW). EACH OF THE BORROWER AND THE GUARANTORS AND THE ADMINISTRATIVE AGENT
AND THE LENDERS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT
OR
ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF
NEW
YORK SITTING IN NEW YORK, NEW YORK OR ANY FEDERAL COURT SITTING IN NEW YORK,
NEW
YORK AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR THE
GUARANTORS OR THE ADMINISTRATIVE AGENT
OR
THE LENDERS BY MAIL AT THE ADDRESS SPECIFIED IN §19. EACH OF THE BORROWER AND
THE GUARANTORS AND THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVES ANY
OBJECTION THAT EITHER OF THEM MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
§21. HEADINGS.
The
captions in this Agreement are for convenience of reference only and shall
not
define or limit the provisions hereof.
§22. COUNTERPARTS.
This
Agreement and any amendment hereof may be executed in several counterparts
and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute
one
instrument. In proving this Agreement it shall not be necessary to produce
or
account for more than one such counterpart signed by the party against whom
enforcement is sought. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
§23. ENTIRE
AGREEMENT, ETC.
The
Loan Documents and any other documents executed in connection herewith or
therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby and supersede any and all previous agreements
and understandings, oral or written, relating to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in §25.
§24. WAIVER
OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EXCEPT
TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, EACH OF THE BORROWER AND THE
GUARANTORS AND THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING
OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE
OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR
THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY
PROHIBITED BY LAW, THE BORROWER AND EACH OF THE GUARANTORS HEREBY WAIVES ANY
RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN
THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES
OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE
BORROWER AND THE GUARANTORS (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY LENDER OR THE ADMINISTRATIVE AGENT HAS REPRESENTED, EXPRESSLY
OR
OTHERWISE, THAT SUCH LENDER OR THE ADMINISTRATIVE AGENT WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGE THAT
THE ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS
TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS
CONTAINED HEREIN.
§25. CONSENTS,
AMENDMENTS, WAIVERS, ETC.
Except
as otherwise expressly provided in this Agreement, any acceptance, consent,
approval or other authorization required or permitted by this Agreement may
be
given, and any term of this Agreement or of any of the other Loan Documents
may
be amended, and the performance or observance by the Borrower or any Guarantor
of any terms of this Agreement or the other Loan Documents or the continuance
of
any default, Default or Event of Default may be waived (either generally or
in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Required Lenders.
Notwithstanding
the foregoing, Unanimous Lender Approval shall be required for any amendment,
modification or waiver of this Agreement or the other Loan Documents
that:
(i) reduces
or forgives any principal of any unpaid Loan or any interest thereon (including
any interest “breakage” costs) or any fees due any Lender hereunder;
or
(ii) changes
the unpaid principal amount of, or the rate of interest on, any Loan;
or
(iii) changes
the date fixed for any payment of principal of or interest on any Loan
(including, without limitation, any extension of the Maturity Date other than
in
accordance with the second sentence of the definition of "Maturity Date") or
any
fees payable hereunder; or
(iv) changes
the amount of any Lender’s Commitment (other than pursuant to an assignment
permitted under §18.1 hereof or as consented to by such Lender) or increases the
amount of the Total Commitment; or
(v) releases
or reduces the liability of any Guarantor pursuant to its Guaranty other than
as
provided in §5; or
(vi) modifies
this §25 or any other provision herein or in any other Loan Document which by
the terms thereof expressly requires Unanimous Lender Approval; or
(vii) changes
the definitions of Required Lenders, Majority Lenders or Unanimous Lender
Approval;
provided
that no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
No
waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission on the
part
of the Administrative Agent or the Lenders or any Lender in exercising any
right
shall operate as a waiver thereof or otherwise be prejudicial to such right
or
any other rights of the Administrative Agent or the Lenders. No notice to or
demand upon the Borrower shall entitle the Borrower to other or further notice
or demand in similar or other circumstances.
§26. SEVERABILITY.
The
provisions of this Agreement are severable, and if any one clause or provision
hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, in such jurisdiction, and shall not in
any
manner affect such clause or provision in any other jurisdiction, or any other
clause or provision of this Agreement in any jurisdiction.
§27. [RESERVED].
§28. USA
PATRIOT ACT.
Each
Lender hereby notifies the Credit Parties that pursuant to the requirements
of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”),
it is
required to obtain, verify and record information that identifies the Credit
Parties, which information includes the names and addresses of the Credit
Parties and other information that will allow such Lender to identity the Credit
Parties in accordance with the Act.
§29. USURY
SAVINGS CLAUSE.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which are treated as interest on such Loan under applicable law (collectively
the “Charges”),
shall
exceed the maximum lawful rate (the “Maximum
Rate”)
which
may be contracted for, charged, taken, received or reserved by the Lender
holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable
in
respect thereof, shall be limited to the Maximum Rate.
IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as a sealed
instrument as of the date first set forth above.
MACK-CALI
REALTY, L.P.
By:
Mack-Cali Realty Corporation, its general partner
By:
/s/
Barry Lefkowitz
Name: Barry
Lefkowitz
Title: Executive
Vice President and Chief Financial Officer
JPMORGAN
CHASE BANK, N.A., individually
and as Administrative Agent
By:
/s/
Donald S. Shokrian
Name:
Donald
S.
Shokrian
Title: Managing
Director
SIGNATURE
PAGE TO TERM LOAN
AGREEMENT
Mack-Cali
Realty Corporation
Schedule
CBD
CBD
Properties
| |
|
|
| |
Property
Address
|
City/State
|
| |
|
|
| |
Harborside
Financial Center 1
|
Jersey
City, NJ
|
| |
Harborside
Financial Center 2
|
Jersey
City, NJ
|
| |
Harborside
Financial Center 3
|
Jersey
City, NJ
|
| |
Harborside
Financial Center 4-A
|
Jersey
City, NJ
|
| |
Harborside
Financial Center 5
|
Jersey
City, NJ
|
| |
101
Hudson Street
|
Jersey
City, NJ
|
| |
|
|
| |
760
Market Street
|
San
Francisco, CA
|
| |
795
Folsom Street
|
San
Francisco, CA
|
| |
201
South Third Street
|
San
Francisco, CA
|
| |
|
|
| |
1400
L Street
|
Washington,
DC
|
| |
1201
Connecticut Avenue NW
|
Washington,
DC
|
