REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "Agreement") is made as of the 16th
day of April, 1998, by and among XXXX-XXXX REALTY, L.P., a Delaware limited
partnership ("MCRLP" or the "Borrower"), having its principal place of business
at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, THE CHASE MANHATTAN BANK
("Chase"), having its principal place of business at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, FLEET NATIONAL BANK ("Fleet"), a national banking association
having its principal place of business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxx 00000, and the other lending institutions party hereto or which may
become parties hereto pursuant to ss.18 (individually, a "Lender" and
collectively, the "Lenders") and THE CHASE MANHATTAN BANK, as the administrative
agent for itself and each other Lender, and FLEET NATIONAL BANK, as the
syndication agent.
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.
X. Xxxx-Xxxx Realty Corporation, a Maryland corporation ("MCRC"), is the
sole general partner of MCRLP, holds in excess of 89% of the partnership
interests in MCRLP, 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.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ss.1. DEFINITIONS AND RULES OF INTERPRETATION.
ss.1.1. Definitions. The following terms shall have the meanings set forth
in this ss.1 or elsewhere in the provisions of this Agreement referred to below:
Absolute Competitive Bid Loan. See ss.2A.3(a).
Accountants. In each case, nationally-recognized, independent certified
public accountants reasonably acceptable to the Administrative Agent. The
Lenders hereby acknowledge that Price Waterhouse LLP and the other major
national accounting firms are acceptable accountants.
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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 deduction of (a)
gains (or losses) from debt restructurings or other 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 four percent (4%) of total revenue 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. The Chase Manhattan Bank acting as administrative
agent for the Lenders, or any successor administrative agent, as permitted by
ss.14.
Administrative Agent's Head Office. The Administrative Agent's head office
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other location
as the Administrative Agent may designate from time to time pursuant to ss.19
hereof, or the office of any successor Administrative Agent permitted under
ss.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 Revolving Credit 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 Chase 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.
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Alternate Base Rate Loans. Those Revolving Credit Loans bearing interest
calculated by reference to the Alternate Base Rate.
Applicable L/C Percentage. As of any date of determination, a per annum
percentage equal to the Applicable Margin for Revolving Credit LIBOR Rate Loans
then in effect.
Applicable Margin. The applicable margin (if any) over the then Alternate
Base Rate or LIBOR Rate, as applicable to the Revolving Credit Loan(s) in
question, as set forth below, which is used in calculating the interest rate
applicable to Revolving Credit 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
Revolving Credit LIBOR Rate Loans shall vary from time to time in accordance
with MCRLP's then applicable (if any) (x) Xxxxx'x 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 Xxxxx'x 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 obtain and maintain debt ratings from at least two (2) nationally
recognized rating agencies reasonably acceptable to the Administrative Agent,
one of which must be Xxxxx'x or S&P so long as such Persons are in the business
of providing debt ratings for the REIT industry; provided that until such time
as MCRLP obtains two debt ratings or 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 Xxxxx'x 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.
Prior to the Borrower's satisfying the requirements for requesting
Competitive Bid Loans pursuant to ss.2A.1 hereof, the applicable debt ratings
and the Applicable Margins are set forth in the following table:
--------------------------------------------------------------------------------------------------------
Applicable Applicable
Margin Margin
for Revolving Credit for Alternate Base
S&P Rating Xxxxx'x Rating Third Rating LIBOR Rate Loans Rate Loans
========================================================================================================
No rating or less than
No rating or less No rating or less BBB-/Baa3 equivalent 1.10% 0%
than BBB- than Baa3
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BBB- Baa3 BBB-/Baa3 equivalent 1.00% 0%
--------------------------------------------------------------------------------------------------------
BBB Baa2 BBB/Baa2 equivalent 0.90% 0%
--------------------------------------------------------------------------------------------------------
BBB+ Baa1 BBB+/Baa1 equivalent 0.80% 0%
--------------------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------------------
A-/A3 equivalent
A- or higher A3 or higher or higher 0.65% 0%
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Upon the Borrower's satisfying and continuing to satisfy the
requirements for requesting Competitive Bid Loans pursuant to ss. 2A.1 hereof,
the applicable debt ratings and the Applicable Margin shall be as set forth in
the following table:
--------------------------------------------------------------------------------------------------------
Applicable Applicable
Margin Margin
for Revolving Credit for Alternate Base
S&P Rating Xxxxx'x Rating Third Rating LIBOR Rate Loans Rate Loans
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXX- Xxx0 XXX-/Xxx0 equivalent 0.95% 0%
BBB Baa2 BBB/Baa2 equivalent 0.85% 0%
BBB+ Baa1 BBB+/Baa1 equivalent 0.75% 0%
A- or higher A3 or higher A-/A3 equivalent 0.60% 0%
or higher
---------------------------------------------------------------------------------------- ---------------
Arrangers. Fleet and Chase Securities Inc.
Assignment and Assumption. See ss.18.1.
Borrower. As defined in the preamble hereto.
Budgeted Project Costs. With respect to Construction-In-Process, the
budgeted 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 Budgeted
Project Cost of such Construction-In-Process shall be the Borrower's or its
subsidiaries' pro-rata share of the budgeted 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).
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.
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Capitalized Unencumbered Property NOI. As of any date of determination
with respect to an Unencumbered 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 9.25%.
CERCLA. See ss.6.18.
Closing Date. April __, 1998, which is the date on which all of the
conditions set forth in ss.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
Revolving Credit Loans to, and to participate in the issuance, extension and
renewal of Letters of Credit for the account of, the Borrower.
Commitment Fee. See ss.2.4(e).
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.
Competitive Bid Loan Accounts. See ss.2A.2(a).
Competitive Bid Loans Election. The election by the Borrower in writing
delivered to the Administrative Agent at any one time, on or after the date
MCRLP has received an Investment Grade Credit Rating from two nationally
recognized rating agencies reasonably acceptable to the Administrative Agent
(one of which must be Xxxxx'x or S&P so long as such Persons are in the business
of providing debt ratings to the REIT industry), to access the Competitive Bid
Loans pursuant to ss. 2A of this Agreement.
Competitive Bid Loans. A borrowing hereunder consisting of one or more
loans made by any of the participating Lenders whose offer to make a Competitive
Bid Loan as part of such borrowing has been accepted by the Borrower under the
auction bidding procedure described in ss.2A hereof.
Competitive Bid Margin. See ss.2A.5(b)(iv).
Competitive Bid Notes. See ss.2A.2(b).
Competitive Bid Quote. An offer by a Lender to make a Competitive Bid Loan
in accordance with ss.2A.5 hereof.
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Competitive Bid Quote Request. See ss.2A.3.
Competitive Bid Rate. See ss.2A.5(b)(v).
Completed Revolving Credit Loan Request. A loan request accompanied by all
information required to be supplied under the applicable provisions of ss.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.
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
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 (as such agreements, plans and
provisions, but not the key management individuals, 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 four
percent (4%) of consolidated total revenue 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 9.25%.
Consolidated Fixed Charges. For any fiscal period, the sum of Consolidated
Total Debt Service plus 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.
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 Capitalized NOI minus Consolidated Total Liabilities.
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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 of (a) Consolidated
Capitalized NOI plus (b) the value of Unrestricted Cash and Cash Equivalents
(excluding until forfeited or otherwise entitled to be retained by the Borrower,
and its Subsidiaries, tenant security and other restricted deposits), plus (c)
the aggregate costs incurred and paid to date by the Borrower and its
Subsidiaries with respect to Construction-In-Process plus (d) the value of
Indebtedness of third parties to the Borrower and its Subsidiaries for borrowed
money which is secured by mortgage liens in real estate (valued in accordance
with GAAP at the book value of such Indebtedness) plus (e) the actual net cash
investment by the Borrower and its Subsidiaries in any Opportunity Funds plus
(f) the book value of Unimproved Non-Income Producing Land; provided that the
value of all permitted investments included within Consolidated Total
Capitalization shall not exceed the limitations set forth in ss.9.8 hereof.
Consolidated Total Debt Service. For any fiscal period, without
double-counting, (a) Consolidated Total Interest Expense for such period plus
(b) the aggregate amount of scheduled principal payments of Indebtedness
(excluding (x) optional prepayments and (y) balloon payments at maturity)
required to be made during such period by MCRC, the Borrower and any of their
respective Subsidiaries plus (c) the aggregate amount of capitalized interest
required in accordance with GAAP to be paid or accrued by MCRC, the Borrower and
their respective Subsidiaries during such quarter.
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" referred to in the definition of "Indebtedness."
Consolidated Total Liabilities. As of any date of determination, without
double-counting, all liabilities of MCRC, the Borrower and their respective
Subsidiaries 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 Debt Service. For any fiscal period,
Consolidated Total Debt Service 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
380
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 ss.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 Revolving Credit Loan in
accordance with ss.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.
Daily Unused Commitment. The daily difference between (a) the Total
Commitment and (b) the sum of the principal amount of Revolving Credit Loans
outstanding plus the Maximum Drawing Amount for each such day hereunder.
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.
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 (x) that causes either the
occupancy or rent of such Real Estate to be adversely affected by greater than
ten percent (10%), as compared to what otherwise would have been the occupancy
or rent of such Real Estate in the absence of such environmental event or (y)
for which the remaining costs of remediation in order to bring such Real Estate
into compliance with Environmental Laws exceeds the greater of $1,000,000 or
1.5% of the Capitalized Unencumbered Property NOI of the Real Estate that is the
particular Unencumbered Property in issue ("Remediation"); provided that (1) any
Real Estate that qualifies under (x) and (y) which requires Remediation shall
only be eligible to be an Unencumbered Property if such Remediation is ongoing
in accordance with prudent environmental practice and (2) the number of
Unencumbered Properties subject to Remediation shall not exceed the greater of
(i) five (5) Buildings (and related land) or (ii) the number of Buildings (and
related land) that are two and one-half percent (2.5%) of the total number of
Buildings constituting all of the Buildings in Unencumbered Properties at any
time.
381
Distribution.
(i) with respect to the Borrower or its Subsidiaries, any
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;
(ii) with respect to MCRC, the declaration or payment of any
dividend on or in respect of any shares of any class of capital stock of
MCRC, other than dividends payable solely in shares of common stock by
MCRC; the purchase, redemption, or other retirement of any shares of any
class of capital stock of MCRC, directly or indirectly through a
Subsidiary of MCRC or otherwise; the return of capital by MCRC to its
shareholders as such; or any other distribution on or in respect of any
shares of any class of capital stock of MCRC; and
(iii) any transfer in the ordinary course of business of cash and
cash equivalent among the Borrower, the Guarantors and their respective
Subsidiaries.
Dollars or $. Dollars in lawful currency of the United States of America.
Drawdown Date. The date on which any Revolving Credit Loan is made or is
to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with ss.2.6.
Duff & Xxxxxx. Xxxx & Xxxxxx, and its successors.
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 and (d) 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.
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, and (c) is otherwise acceptable for non-Recourse leasehold
mortgage
382
financing 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
ss.3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. See ss.6.18(a).
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 ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.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 ss.12.1.
Fee Letter. See ss.2.4(d).
Financial Statement Date. With respect to the Borrower, MCRC and their
respective subsidiaries, December 31, 1997.
Fitch. Fitch IBCA, Inc., and its successors.
Fronting Bank. With respect to any letters of credit issued under this
Agreement on or after the date hereof, Chase, or with the consent of the
Administrative Agent and the Borrower, another Lender. Notwithstanding anything
to the contrary contained herein, any letters of credit issued by Fleet to the
Borrower under the Revolving Credit Agreement dated as of August 6, 1997 among
Fleet, the Borrower and the other parties thereto, which are outstanding on the
date hereof, shall become Letters of Credit hereunder and Fleet shall be the
Fronting Bank with respect thereto.
383
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 Distributions
to holders of preferred stock or other preferred equity interests.
GAAP. Generally accepted accounting principles in effect from time to time
in the United States, consistently applied, provided that a certified public
accountant would, insofar as the use of such accounting principles is pertinent,
be in position to deliver an unqualified opinion as to financial statements in
which such principles have been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.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, the MCRC Guaranty, the Subsidiary Guaranties,
and 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 ss.5
below, such Subsidiary Guarantor shall no longer be considered a "Guarantor" for
purposes of this Agreement.
Harborside Assumed Debt. (i) The Indebtedness to be owed by one or more of
MCRLP and certain of its Subsidiaries to Northwestern Mutual Insurance Company
and Principal Mutual Life Insurance Company in the original principal amount of
$110,000,000, and (ii) the Indebtedness to be owed by one or more of MCRC, MCRLP
and certain of its Subsidiaries to US West Pension Trust, Investment Management
Company in the original principal amount of $42,087,513.
Harborside Debt. The Indebtedness incurred by MCRLP pursuant to the
Revolving Credit Facility Agreement dated as of November 1, 1996, among MCRLP,
the several lenders from time to time parties thereto, and PSC, as
administrative agent for such lenders, as the same may be amended, supplemented
or otherwise modified from time to time.
Harborside Pledge Agreements. Collectively, (i) the pledge agreement
between MCRC and PSC, as the administrative agent, and (ii) the pledge agreement
between MCRLP and PSC, as the administrative agent, in each case (a) securing
the Harborside Debt in connection with the Harborside Transaction, and (b) as
the same may be amended, supplemented or otherwise modified from time to time.
384
Harborside Pledged Interests. Collectively, (i) the 99% limited
partnership interest owned by MCRLP in each of Cali Harborside (Fee) Associates
L.P., a New Jersey limited partnership, Cal- Harbor II & II Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor IV Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor V Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor VI Urban Renewal
Associates L.P., a New Jersey limited partnership, Cal-Harbor So. Pier Urban
Renewal Associates L.P., a New Jersey limited partnership, Cal-Harbor No. Pier
Urban Renewal Associates L.P., a New Jersey limited partnership, and Cal-Harbor
VII Urban Renewal Associates L.P., a New Jersey limited partnership; and (ii)
100% of the issued and outstanding capital stock owned by MCRC of each of Cali
Sub X, Inc., a Delaware corporation, and Cali Sub XI, Inc., a Delaware
corporation, in each case pledged to PSC, as the administrative agent, pursuant
to the Harborside Pledge Agreements.
Harborside Transaction. (i) The acquisition by MCRLP and certain of its
Subsidiaries of the real property, buildings and other improvements thereon
commonly known as the Harborside Financial Center, Jersey City, New Jersey, (ii)
the incurrence of the Harborside Debt, and (iii) the incurrence of the
Harborside Assumed Debt.
Hazardous Substances. See ss.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 ss.9.9) or any lease (a "synthetic lease") which is treated as
an operating lease under GAAP and as a loan or financing for U.S. income tax
purposes; (d) all guarantees for borrowed money, endorsements and other
contingent obligations, whether direct or indirect, (without double counting and
in accordance with ss.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, and the obligations to reimburse the issuer in respect
of any letters of credit; and (e) 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.
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 Revolving Credit LIBOR Rate Loan in respect of which the Interest Period
is (A) three (3) months or less, the last day of such Interest Period and (B)
more than three (3) months, the date that is three (3) months from the first
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day of such Interest Period, each date that is three (3) months thereafter, and,
in addition, the last day of such Interest Period.
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 Revolving
Credit 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, (ii) for any Revolving Credit LIBOR Rate Loan, 1, 2, 3, 6, 9 or 12 months
(provided that (x) the Interest Period for Revolving Credit LIBOR Rate Loans may
be shorter than one (1) month in order to consolidate two (2) or more Revolving
Credit LIBOR Rate Loans and (y) the Interest Period for all Revolving Credit
LIBOR Rate Loans shall be one (1) month until the earlier of ninety (90) days
after the Closing Date or the date on which the Arrangers complete the
syndication of the Total Commitment, as evidenced by written notice from the
Arrangers to the Borrower as to such completion), (iii) for any Absolute
Competitive Bid Loan, a market period not to extend beyond the Maturity Date,
and (iv) for any LIBOR Competitive Bid Loan, 1, 2, 3, 6, 9 or 12 months; 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 ss.2.6, the Borrower shall be deemed to have requested a
continuation of the affected Revolving Credit LIBOR Rate Loan as a
Revolving Credit 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
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(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 Xxxxx'x 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).
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 ss.18
or a Person who acquires all or substantially all of the stock or assets of a
Lender.
Letter of Credit. See ss.3.1.1.
Letter of Credit Application. See ss.3.1.1.
Letter of Credit Fee. See ss.3.6.
Letter of Credit Participation. See ss.3.1.4.
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LIBOR Breakage Costs. With respect to any LIBOR Rate Loan to be prepaid or
not drawn after elected, 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 Competitive Bid Loan(s). See ss.2A.3(a).
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 1/16 of
one percent) as determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to such Interest Period which appears on
the Telerate page 3750 (or such other page as may replace that page on the
Telerate service) as of 11:00 a.m. London time on the date that is two (2) LIBOR
Business Days
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prior to the beginning of such Interest Period; provided, however, if the rate
described above does not appear on the Telerate System on any applicable
interest determination date, the LIBOR Rate shall be the rate (rounded upwards
as described above, if necessary) for deposits in Dollars for a period of time
substantially equal to the Interest Period which appears on the Reuters Page
"LIBO" (or such other page as may replace the LIBO Page on that service for the
purpose of displaying such rates), as of 11:00 a.m. London time on the date that
is two (2) LIBOR Business Days prior to the beginning of such Interest Period.
If both the Telerate and Reuters systems are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in Dollars for a period of time comparable to the Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time on the date that is two (2) LIBOR Business Days prior to
the beginning of such Interest Period. The principal London office of each of
the four major London banks will be requested to provide a quotation of its
Dollar deposit offered rate. If at least two such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in Dollars to leading
European banks for a period of time comparable to the Interest Period by major
banks in New York City at approximately 11:00 a.m. New York City time on the
date that is two (2) LIBOR Business Days prior to the beginning of such Interest
Period. In the event that the Administrative Agent is unable to obtain any
quotation as provided above, it will be deemed that the LIBOR Rate cannot be
determined.
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 ss.8.2.
Loan Documents. Collectively, this Agreement, the Letter of Credit
Applications, the Letters of Credit, 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 Revolving Credit Loans and the Competitive Bid Loans.
Majority Lenders. As of any date, the Lenders whose aggregate Commitments
constitute at least fifty-one percent (51%) of the Total Commitment, but in no
event fewer than two Lenders if there are three or more Lenders; provided that
if the Total Commitment has been terminated by the Lenders and no Revolving
Credit Loans or Letters of Credit are outstanding, the Majority Lenders
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shall be the Lenders holding fifty-one percent (51%) of the outstanding
principal amount of Competitive Bid Loans 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) any Guarantor 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. April __, 2001, 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 one hundred twenty (120) days
prior to the Maturity Date, request a one-year extension of the Maturity Date,
the approval of which shall require Unanimous Lender Approval. Any such
extension, if given by Unanimous Lender Approval, shall require that no Default
or Event of Default shall have occurred and be continuing and that the Borrower
pay an aggregate extension fee equal to 0.075% of the then existing Total
Commitment.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
maximum aggregate amount may be reduced from time to time pursuant to the terms
of the Letters of Credit.
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.
Moody's. Xxxxx'x Investors Service, Inc., and its successors.
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by the Borrower or any Guarantor as the
case may be or any ERISA Affiliate.
Non-Material Breach. A (i) breach of a representation or warranty or
covenant contained in ss.6 or ss.7 (other than ss.7.1), (ii) a breach of any
other representation or warranty or covenant as to which such term "Non-Material
Breach" is specifically applied, or (iii) a Permitted Event; but only to the
extent any such breach under (i) or (ii) or an event under (iii) (other than
ss.7.1), neither (A) singularly or in conjunction with any other existing
breaches or (iii) events, 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 (iii) events, materially
adversely affect the ability of (x) MCRC; (y) MCRLP; or the (z) the Borrower,
the Guarantors and their Subsidiaries, taken as a whole, to fulfill
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the obligations to the Lenders under the Loans (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 ss.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 delivered 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.
Notes. The Revolving Credit Notes and the Competitive Bid Notes.
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 Reimbursement
Obligations incurred or the Letter of Credit Applications or the Letters of
Credit 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.
Opportunity Fund. An investment made after the date hereof by the
Borrower, any Guarantor or any Subsidiary which is designated at the time of
investment by the Borrower from time to time as an "Opportunity Fund" (including
an investment company); provided that (a) such investment would not jeopardize
MCRC's status as a REIT, (b) 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 ss.9.8(b) hereof.
Partially-Owned Entity(ies). Any of the partnerships, joint ventures and
other entities owning real estate assets (other than an Opportunity Fund) in
which MCRLP and/or MCRC
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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 ss.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 ss.12.1(f)(i) cumulatively
with any other then pending Permitted Event or other matter affecting
ss.12.1(f)(i). For purposes of a Permitted Event, the term "bankruptcy" shall
include all actions or proceedings described in ss.12.1(g) or ss.12.1(h). The
Borrower may exercise the provisions of ss.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 ss.12.1(f)(i) or otherwise cause a Default or
Event of Default.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.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).
PSC. Prudential Securities Credit Corporation, and its successors and
assigns.
RCRA. See ss.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 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
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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).
Reimbursement Obligation. The Borrower's obligation to reimburse the
Lenders and the Administrative Agent and the Fronting Bank on account of any
drawing under any Letter of Credit as provided in ss.3.2. Notwithstanding the
foregoing, unless the Borrower shall notify the Administrative Agent of its
intent to repay the Reimbursement Obligation on the date of the related drawing
under any Letter of Credit as provided in ss.3.2, such Reimbursement Obligation
shall simultaneously with such drawing be converted to and become a Alternate
Base Rate Loan as set forth in ss.3.3.
REIT. A "real estate investment trust", as such term is defined in Section
856 of the Code.
Release. See ss.6.18(c)(iii).
Required Lenders. As of any date, the Lenders whose aggregate Commitments
constitute at least sixty-six and two-thirds percent (66-2/3%) of the Total
Commitment; provided that if the Total Commitment has been terminated by the
Lenders and no Revolving Credit Loans or Letters of Credit are outstanding, the
Required Lenders shall be the Lenders holding sixty-six and two-thirds percent
(66-2/3%) of the outstanding principal amount of the Competitive Bid Loans on
such date.
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 LIBOR Rate Loan. A Revolving Credit Loan which is a LIBOR
Rate Loan.
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Revolving Credit Loan(s). Each and every revolving credit loan made or to
be made by the Lenders to the Borrower pursuant to ss.2.
Revolving Credit 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.
Revolving Credit Note Record. A Record with respect to the Revolving
Credit Notes.
S&P. Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and
its successors.
XXXX. See ss.6.18.
SEC Filings. Collectively, (a) the MCRC's Annual Report on Form 10-K for
the year ended December 31, 1997, filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), (b) MCRC's Current Report on Form 8-K, dated
January 31, 1998, filed with the SEC pursuant to the Exchange Act, including all
amendments thereto and (c) MCRC's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1997 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, 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).
Subsidiary Guarantor. Any Guarantor other than MCRC. The Subsidiary
Guarantors on the Closing Date are listed on Schedule SG hereto.
Subsidiary Guaranty. Each Guaranty made from time to time by a Subsidiary
Guarantor in favor of the Administrative Agent and the Lenders in substantially
the form of Exhibit B hereto, pursuant to which such Subsidiary Guarantor
guarantees the unconditional payment and performance of the Obligations.
Syndication Agent. Fleet National Bank.
Third Debt Rating. MCRLP's long term unsecured debt rating from a Third
Rating Agency.
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Third Rating Agency. Duff & Xxxxxx, Xxxxx'x or another
nationally-recognized rating agency (other than S&P or Xxxxx'x) reasonably
satisfactory to the Administrative Agent.
Title Policies. For each Unencumbered Property, an ALTA standard form
title policy (or, if such form is not available, an equivalent form of title
insurance policy) of a reasonably current date or endorsed down to a reasonably
current date issued by a nationally-recognized title insurance company, insuring
that the Borrower or a Subsidiary Guarantor holds good and clear marketable fee
simple or leasehold title to such Unencumbered Property, subject only to
Permitted Liens.
Total Commitment. As of any date, the sum of the then-current Commitments
of the Lenders, which shall not at any time exceed $870,000,000, as such amount
may be increased pursuant to ss.2.2 hereof.
Type. As to any Revolving Credit 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), (b) is not the subject of a Disqualifying
Environmental Event, (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 ss.7.9 hereof, and (e) is wholly owned or ground-leased
under an Eligible Ground Lease by the Borrower or a Guarantor that is a
wholly-owned Subsidiary.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, or any successor version thereof adopted by the
Administrative Agent in the ordinary course of its business as a letter of
credit issuer and in effect at the time of issuance of such Letter of Credit.
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
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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 this Agreement 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.
ss.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.
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(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 "ss." 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 ss.12.1 and the rights of the Lenders under
ss.ss.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.
ss.2. THE REVOLVING CREDIT FACILITY.
ss.2.1. Commitment to Lend. Subject to the provisions of ss.2.5 and the
other terms and conditions set forth in this Agreement, each of the Lenders
severally agrees to lend to the Borrower and the Borrower may borrow, repay, and
reborrow from each Lender from time to time from the Closing Date up to but not
including the Maturity Date upon notice by the Borrower to the Administrative
Agent given in accordance with ss.2.5 hereof, such sums as are requested by the
Borrower up to a maximum aggregate principal amount outstanding (after giving
effect to all amounts requested) at any one time equal to such Lender's
Commitment minus such Lender's Commitment Percentage of the Maximum Drawing
Amount; provided that the sum of the outstanding amount of the Revolving Credit
Loans (after giving effect to all amounts requested) and the Competitive Bid
Loans plus the Maximum Drawing Amount shall not at any time exceed the Total
Commitment in effect at such time.
The Revolving Credit Loans shall be made pro rata in accordance with each
Lender's Commitment Percentage. Each request for a Revolving Credit Loan made
pursuant to ss.2.5 hereof shall constitute a representation and warranty by the
Borrower that the conditions set forth in ss.10 have been satisfied as of the
Closing Date and that the conditions set forth in ss.11 have been satisfied on
the date of such request and will be satisfied on the proposed Drawdown Date of
the requested Revolving Credit 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 Revolving Credit
Loan shall be required to be made by any Lender unless all of the conditions
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contained in ss.10 have been satisfied as of the Closing Date and all of the
conditions set forth in ss.11 have been met at the time of any request for a
Revolving Credit Loan. Notwithstanding the foregoing, the Borrower shall be able
to borrow under this Agreement during the occurrence of a Default or an Event of
Default arising solely from the Borrower's failure to comply with the provisions
of ss.7.22 if such borrowing is to cure, and will cure, such Default or Event of
Default without causing any other Default or Event of Default.
ss.2.2. Increase of Total Commitment. Unless a Default or an Event of
Default has occurred and is continuing, the Borrower, by written notice to the
Administrative Agent, may request on one occasion during the term of this
Agreement that the Total Commitment be increased by an amount not to exceed
$130,000,000 (to an amount not to exceed $1,000,000,000); provided that (a) any
Lender which is a party to this Agreement prior to such request for increase, at
its sole discretion, may elect to increase its Commitment but shall not have any
obligation to so increase its Commitment, and (b) in the event that each Lender
does not elect to increase its Commitment, the Arrangers shall use commercially
reasonable efforts to locate additional lenders willing to hold commitments for
the requested increase, and the Borrower may also identify additional lenders
willing to hold commitments for the requested increase, provided that the
Administrative Agent shall have the right to approve any such additional lender,
which approval will not be unreasonably withheld or delayed. In the event that
lenders commit to such increase the Total Commitment and the Commitments of the
Lenders shall be increased, the Commitment Percentages of the Lenders shall be
adjusted, new Notes shall be issued, and other changes shall be made to the Loan
Documents as may be necessary to reflect the aggregate amount, if any, by which
Lenders have agreed to increase their respective Commitments or make new
Commitments in response to the Borrower's request for an increase in the Total
Commitment pursuant to this ss.2.2. The fees payable by the Borrower upon any
such increase in the Total Commitment shall be agreed upon by the Arrangers and
the Borrower at the time of such increase.
Notwithstanding the foregoing, nothing in this ss.2.2 shall constitute or
be deemed to constitute an agreement by any Lender to increase its Commitment
hereunder.
ss.2.3. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by the Revolving Credit Notes. A Revolving Credit 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
Revolving Credit Loan or at the time of receipt of any payment of principal on
such Lender's Revolving Credit Notes, an appropriate notation on such Lender's
Revolving Credit Note Record reflecting the making of such Revolving Credit Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Revolving Credit Loans set forth on such Lender's Revolving Credit 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 Revolving Credit Note Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any
Revolving Credit Note to make payments of principal of or interest on any
Revolving Credit Note when due. The Administrative Agent hereby agrees to
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provide the Borrower with a statement concerning the outstanding amount of the
Revolving Credit Loans, in reasonable detail, on a monthly basis. Although each
Revolving Credit Note shall be dated the Closing Date, interest in respect
thereof shall be payable only for the periods during which the Revolving Credit
Loans evidenced thereby to the Borrower are outstanding, and although the stated
amount of such Revolving Credit Notes shall be equal to the Total Commitment as
of the date hereof, such Revolving Credit 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 Revolving Credit Loans to
them as of any date of determination.
ss.2.4. Interest on Revolving Credit Loans; Fees.
(a) Interest on Alternate Base Rate Loans. Except as otherwise
provided in ss.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
ss.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 Revolving Credit LIBOR Rate Loans. Except as
otherwise provided in ss.4.9, each Revolving Credit 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 ss.2.9) at a rate equal to the LIBOR Rate determined for such
Interest Period plus the Applicable Margin for Revolving Credit LIBOR Rate
Loans.
(c) Interest Payments. The Borrower unconditionally promises to pay
interest on each Revolving Credit Loan in arrears on each Interest Payment Date
with respect thereto.
(d) Certain Fees. The Borrower agrees to pay to the Administrative
Agent, the Syndication Agent and the Arrangers those certain fees as set forth
in that certain letter agreement dated as of March 10, 1998 between the
Borrower, the Administrative Agent and the Arrangers (the "Fee Letter").
(e) Commitment Fee. From and after the date hereof until the
earliest of (i) the Maturity Date, (ii) the date on which the Commitments
terminate, or (iii) the Borrower successfully makes and continues to qualify for
the Competitive Bid Loans Election, the Borrower agrees to pay to the
Administrative Agent, for the accounts of the Lenders in accordance with their
respective Commitment Percentages, a commitment fee in an amount equal to 0.175%
per annum of the Daily Unused Commitment, calculated during each calendar
quarter or portion thereof for the first calendar quarter of the term of this
Agreement and the last calendar quarter of the term of this Agreement, if either
of same is not a full calendar quarter from the date hereof to the Maturity Date
(the "Commitment Fee"). The Commitment Fee shall be payable quarterly in arrears
on the fifteenth (15th) day of each January, April, July and October quarter for
the immediately preceding calendar quarter commencing on the first such date
following the Closing Date, with a final payment on the
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earliest of (i) Maturity Date, (ii) any earlier date on which the Commitments
shall terminate or (iii) any earlier date on which the Borrower successfully
makes, and during the continued qualification for, the Competitive Bid Loans
Election.
(f) Facility Fee. From and after the date on which the Borrower
successfully makes and continues to qualify for the Competitive Bid Loans
Election, the Borrower agrees to pay to the Administrative Agent, for the
account of the Lenders based on their respective Commitment Percentages, a fee
(the "Facility Fee"), accruing at a per annum rate equal to 0.175% per annum of
the Total Commitment, such fee being payable quarterly, in arrears, on the
fifteenth (15th) day of each January, April, July, and October, commencing on
the first such day of the calendar quarter next succeeding the date on which the
Borrower successfully makes the Competitive Bid Loans Election. Upon the
Borrower's having successfully made, and during the continuance of its
qualification for, the Competitive Bid Loans Election, the Facility Fee shall be
in lieu of the Commitment Fee for the remaining term of this Agreement.
(g) Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent an Administrative Agent's fee as set forth in the Fee
Letter.
ss.2.5. Requests for Revolving Credit Loans.
The following provisions shall apply to each request by the Borrower for a
Revolving Credit Loan:
(i) The Borrower shall submit a Completed Revolving Credit Loan
Request to the Administrative Agent as provided in this ss.2.5. Except as
otherwise provided herein, each Completed Revolving Credit Loan Request
shall be in a minimum amount of $2,000,000 or an integral multiple of
$500,000 in excess thereof. Each Completed Revolving Credit Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Revolving Credit Loans requested from the Lenders
on the proposed Drawdown Date, unless such Completed Revolving Credit Loan
Request is withdrawn (x) in the case of a request for a Revolving Credit
LIBOR Rate Loan, at least three (3) Business Days prior to the proposed
Drawdown Date for such Revolving Credit Loan, and (y) in the case of a
request for a Alternate Base Rate Loan, at least one (1) Business Day
prior to the proposed Drawdown Date for such Revolving Credit Loan.
(ii) Each Completed Revolving Credit 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, and at least one (1) Business Day prior to
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
Revolving Credit LIBOR Rate Loan.
(iii) Each Completed Revolving Credit Loan Request shall include a
completed writing in the form of Exhibit C hereto specifying: (1) the
principal amount of the Revolving
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Credit Loan requested, (2) the proposed Drawdown Date of such Revolving
Credit Loan, (3) the Interest Period applicable to such Revolving Credit
Loan, and (4) the Type of such Revolving Credit Loan being requested.
(iv) No Lender shall be obligated to fund any Revolving Credit Loan
unless:
(a) a Completed Revolving Credit 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 Revolving
Credit Loan to be made pursuant to the Completed Revolving Credit
Loan Request, all of the conditions contained in ss.10 shall have
been satisfied as of the Closing Date and all of the conditions set
forth in ss.11 shall have been met, including, without limitation,
the condition under ss.11.1 that there be no Default or Event of
Default under this Agreement (provided that notwithstanding the
foregoing, the Borrower shall be able to borrow under this Agreement
during the occurrence of a Default or an Event of Default arising
solely from the Borrower's failure to comply with the provisions of
ss.7.22 if such borrowing is to cure, and will cure, such Default or
Event of Default without causing any other Default or Event of
Default); and
(c) the Administrative Agent shall have received a certificate
in the form of Exhibit D hereto signed by the chief financial
officer or treasurer or vice president of finance or other thereon
designated officer of the Borrower setting forth computations
evidencing compliance with the covenants contained in ss.ss.9.1 and
9.6 on a pro forma basis after giving effect to such requested
Revolving Credit 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 Revolving
Credit Loan), and, certifying that, both before and after giving
effect to such requested Revolving Credit Loan, no Default or Event
of Default exists or will exist under this Agreement or any other
Loan Document (other than a Default or Event of Default arising
solely from the Borrower's failure to comply with ss.7.22 as
permitted in the proviso at the end of clause (b) above), and that
after taking into account such requested Revolving Credit Loan, no
Default or Event of Default will exist as of the Drawdown Date or
thereafter.
(v) The Administrative Agent will cause the Completed Revolving
Credit Loan Request (and the Certificate in the form of Exhibit D) to be
delivered to each Lender in accordance with ss.14.12 and in any event on
the same day or the Business Day following the day a Completed Revolving
Credit Loan Request is received by the Administrative Agent.
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ss.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 any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (i) with
respect to any such conversion of a Revolving Credit LIBOR Rate Loan to a
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 a Alternate Base Rate Loan to a Revolving
Credit 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 Revolving Credit 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 Revolving Credit
Loan may be converted into a Revolving Credit LIBOR Rate Loan when any Default
or Event of Default has occurred and is continuing. All or any part of
outstanding Revolving Credit Loans of any Type may be converted into a Revolving
Credit 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 Revolving Credit LIBOR Rate Loan
shall be irrevocable by the Borrower.
(b) Any Revolving Credit 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 Revolving
Credit LIBOR Rate Loans by compliance by the Borrower with the notice provisions
contained in ss.2.6(a) or (c); provided that no Revolving Credit 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 ss.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 Revolving Credit LIBOR Rate Loan as such, the affected Revolving Credit
LIBOR Rate Loan shall automatically be continued as a Revolving Credit 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 Revolving Credit 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 ss.ss.4.5, 4.6, and 4.8
hereof.
(d) The Borrower may not request or elect a Revolving Credit LIBOR
Rate Loan pursuant to ss.2.5, elect to convert a Alternate Base Rate Loan to a
Revolving Credit LIBOR Rate Loan pursuant to ss.2.6(a), elect to continue a
Revolving Credit LIBOR Rate Loan pursuant to ss.2.6(b)
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or have continued a Revolving Credit LIBOR Rate Loan pursuant to ss.2.6(c) if,
after giving effect thereto, there would be greater than twelve (12) Revolving
Credit LIBOR Rate Loans then outstanding. Any Loan Request for a Revolving
Credit LIBOR Rate Loan that would create greater than twelve (12) Revolving
Credit LIBOR Rate Loans outstanding shall be deemed to be a Loan Request for a
Alternate Base Rate Loan.
ss.2.7. Funds for Revolving Credit Loans.
(a) Subject to the other provisions of this ss.2, not later than
12:00 p.m. (New York City time) on the proposed Drawdown Date of any Revolving
Credit 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 Revolving Credit 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 Revolving Credit Loan as soon as possible after
receipt of any Completed Revolving Credit 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 Revolving Credit 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 Revolving Credit Loan made available to
the Administrative Agent by the Lenders; all such funds received by the
Administrative Agent by 12:00 p.m. (New York City time) on any Business Day 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Loan or to increae 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 Revolving Credit 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
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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 Revolving Credit 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Loans made on
such Drawdown Date.
ss.2.8. Repayment of the Revolving Credit 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 Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon, the unpaid balance of the Commitment Fee or Facility Fee accrued
through such date, and any and all other unpaid amounts due under this
Agreement, the Revolving Credit Notes or any other of the Loan Documents.
ss.2.9. Optional Repayments of Revolving Credit Loans. The Borrower shall
have the right, at its election, to prepay the outstanding amount of the
Revolving Credit Loans, in whole or in part, at any time without penalty or
premium; provided that the outstanding amount of any Revolving Credit LIBOR Rate
Loans may not be prepaid unless the Borrower pays any LIBOR Breakage Costs for
each Revolving Credit 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 ss.2.9 of any Alternate Base Rate Loans, and at
least three (3) LIBOR Business Days' notice of any proposed prepayment pursuant
to this ss.2.9 of Revolving Credit LIBOR Rate Loans, specifying the proposed
date of prepayment of Revolving Credit 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 Revolving Credit Loans then being repaid, shall be accompanied by
the payment of all charges outstanding on all Revolving Credit Loans so prepaid
and of all accrued interest on the principal prepaid to the date of payment, and
shall be applied, in the absence of instruction by the Borrower, first to the
principal of Alternate Base Rate Loans and then to the principal of Revolving
Credit LIBOR Rate Loans, at the Administrative Agent's option.
ss.2A. COMPETITIVE BID LOANS.
ss.2A.1. The Competitive Bid Options. In addition to the Revolving Credit
Loans made pursuant to ss.2 hereof, and provided that the Borrower has made the
Competitive Bid Loans Election
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and that at the time of such request no Default or Event of Default has occurred
and is continuing and MCRLP maintains an Investment Grade Credit Rating from two
nationally-recognized rating agencies reasonably acceptable to the
Administrative Agent (one of which must be Xxxxx'x or S&P so long as such
Persons are in the business of providing debt ratings for the REIT industry),
the Borrower may request Competitive Bid Loans pursuant to the terms of this
ss.2A. The Lenders may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept such offers in the
manner set forth in this ss.2A. Notwithstanding any other provision herein to
the contrary, at no time shall the aggregate principal amount of Competitive Bid
Loans outstanding at any time exceed the lesser of (a) the Total Commitment
minus the sum of (i) the aggregate outstanding principal amount of Revolving
Credit Loans, plus (ii) the Maximum Drawing Amount of Letters of Credit
outstanding at such time, or (b) $350,000,000.
ss.2A.2. Competitive Bid Loan Accounts: Competitive Bid Notes.
(a) The obligation of the Borrower to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at the
applicable Competitive Bid Rate or the sum of the Competitive Bid Margin plus
the applicable LIBOR Rate (as the case may be) accrued thereon, shall be
evidenced by this Credit Agreement and by individual loan accounts (the
"Competitive Bid Loan Accounts" and individually, a "Competitive Bid Loan
Account") maintained by the Administrative Agent on its books for each of the
Lenders, it being the intention of the parties hereto that, except as provided
for in paragraph (b) of this ss.2A.2, the Borrower's obligations with respect to
Competitive Bid Loans are to be evidenced only as stated herein and not by
separate promissory notes and shall hereby constitute an absolute promise to pay
when due, without notice, demand, presentment or setoff.
(b) Any Lender may at any time, and from time to time, request that
any Competitive Bid Loans outstanding to such Lender be evidenced by a
promissory note of the Borrower in substantially the form of Exhibit G hereto
(each, a "Competitive Bid Note"), dated as of the Closing Date and completed
with appropriate insertions. One Competitive Bid Note shall be payable to the
order of each Lender in an amount equal to the principal amount of the
Competitive Bid Loan made by such Lender to the Borrower, and representing the
obligation of the Borrower to pay such Lender such principal amount or, if less,
the outstanding principal amount of any and all Competitive Bid Loans made by
such Lender, plus interest at the applicable Competitive Bid Rate or the sum of
the Competitive Bid Margin plus the applicable LIBOR Rate accrued thereon, as
set forth herein. Upon execution and delivery by the Borrower of a Competitive
Bid Note, the Borrower's obligation to repay any and all Competitive Bid Loans
made to them by such Lender and all interest thereon shall thereafter be
evidenced by such Competitive Bid Note.
(c) The Borrower irrevocably authorizes (i) each Lender to make or
cause to be made, in connection with a Drawdown Date of any Competitive Bid Loan
or at the time of receipt of any payment of principal on such Lender's
Competitive Bid Note in the case of a Competitive Bid Note, and (ii) the
Administrative Agent to make or cause to be made, in connection with a Drawdown
Date of any Competitive Bid Loan or at the time of receipt of any payment of
principal
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on such Lender's Competitive Bid Loan Account in the case of a Competitive Bid
Loan Account, an appropriate notation on such Lender's records or on the
schedule attached to such Lender's Competitive Bid Note or a continuation of
such schedule attached thereto, or the Administrative Agent's records, as
applicable, reflecting the making of the Competitive Bid Loan or the receipt of
such payment (as the case may be) and may, prior to any transfer of a
Competitive Bid Note, endorse on the reverse side thereof the outstanding
principal amount of Competitive Bid Loans evidenced thereby. The outstanding
amount of the Competitive Bid Loans set forth on such Lender's record or the
Administrative Agent's records, as applicable, 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 shall not limit or
otherwise affect the obligations of the Borrower hereunder to make payments of
principal of or interest on any Competitive Bid Loan when due.
ss.2A.3. Competitive Bid Quote Request; Invitation for Competitive Bid
Quotes.
(a) When the Borrower wishes to request offers to make Competitive
Bid Loans under this ss.2A, it shall transmit to the Administrative Agent by
telex or facsimile a Competitive Bid Quote Request substantially in the form of
Exhibit H hereto (a "Competitive Bid Quote Request") so as to be received no
later than 11:00 a.m. (New York City time) (i) five (5) Business Days prior to
the requested Drawdown Date in the case of a Competitive Bid Loan bearing
interest calculated by reference to the LIBOR Rate (a "LIBOR Competitive Bid
Loan") or (ii) one (1) Business Day prior to the requested Drawdown Date in the
case of an Competitive Bid Loan bearing interest calculated by reference to a
fixed rate of interest (an "Absolute Competitive Bid Loan"), specifying:
(A) the requested Drawdown Date (which must be a Business
Day);
(B) the aggregate amount of such Competitive Bid Loans, which
shall be $5,000,000 or larger multiple of $1,000,000;
(C) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period; and
(D) whether the Competitive Bid Quotes requested are for LIBOR
Competitive Bid Loans or Absolute Competitive Bid Loans.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No new Competitive
Bid Quote Request shall be given until the Borrower has notified the
Administrative Agent of its acceptance or non-acceptance of the Competitive Bid
Quotes relating to any outstanding Competitive Bid Quote Request.
(b) Promptly upon receipt of a Competitive Bid Quote Request, the
Administrative Agent shall send to the Lenders by telecopy or facsimile
transmission an Invitation for Competitive Bid Quotes substantially in the form
of Exhibit I hereto, which shall constitute an
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invitation by the Borrower to each Lender to submit Competitive Bid Quotes in
accordance with this ss.2A.
ss.2A.4. Alternative Manner of Procedure. If, after receipt by the
Administrative Agent and each of the Lenders of a Competitive Bid Quote Request
from the Borrower in accordance with ss.2A.3, the Administrative Agent or any
Lender shall be unable to complete any procedure of the auction process
described in ss.ss.2A.5 through 2A.6 (inclusive) due to the inability of such
Person to transmit or receive communications through the means specified
therein, such Person may rely on telephonic notice for the transmission or
receipt of such communications. In any case where such Person shall rely on
telephone transmission or receipt, any communication made by telephone shall, as
soon as possible thereafter, be followed by written confirmation thereof.
ss.2A.5. Submission and Contents of Competitive Bid Quotes.
(a) Each Lender may, but shall be under no obligation to, submit a
Competitive Bid Quote containing an offer or offers to make Competitive Bid
Loans in response to any Competitive Bid Quote Request. Each Competitive Bid
Quote must comply with the requirements of this ss.2A.5 and must be submitted to
the Administrative Agent by telex or facsimile transmission at its offices as
specified in or pursuant to ss.19 not later than (i) 2:00 p.m. (New York City
time) on the fourth LIBOR Business Day prior to the proposed Drawdown Date, in
the case of a LIBOR Competitive Bid Loan or (ii) 10:00 a.m. (New York City time)
on the proposed Drawdown Date, in the case of an Absolute Competitive Bid Loan,
provided that Competitive Bid Quotes may be submitted by the Administrative
Agent in its capacity as a Lender only if it submits its Competitive Bid Quote
to the Borrower not later than (x) one hour prior to the deadline for the other
Lenders, in the case of a LIBOR Competitive Bid Loan or (y) 15 minutes prior to
the deadline for the other Lenders, in the case of an Absolute Competitive Bid
Loan. Subject to the provisions of ss.ss.10 and 11 hereof, any Competitive Bid
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in substantially the form of
Exhibit J hereto and shall in any case specify:
(i) the proposed Drawdown Date;
(ii) the principal amount of the Competitive Bid Loan for
which each proposal is being made, which principal amount (w) may be greater
than or less than the Commitment of the quoting Lender, (x) must be $1,000,000
or a larger multiple of $500,000, (y) may not exceed the aggregate principal
amount of Competitive Bid Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of Competitive Bid
Loans for which offers being made by such quoting Lender may be accepted;
(iii) the Interest Periods for which Competitive Bid Quotes
are being submitted;
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(iv) in the case of a LIBOR Competitive Bid Loan, the margin
above or below the applicable LIBOR Rate (the "Competitive Bid Margin") offered
for each such Competitive Bid Loan, expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or subtracted from such LIBOR Rate;
(v) in the case of an Absolute Competitive Bid Loan, the rate
of interest per annum (specified to the nearest 1/10,000th of 1%) (the
"Competitive Bid Rate") offered for each such Absolute Competitive Bid Loan; and
(vi) the identity of the quoting Lender.
A Competitive Bid Quote may include up to five (5) separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit J hereto;
(ii) contains qualifying, conditional or similar language;
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in ss.2A.5(a) hereof.
ss.2A.6. Notice to Borrower. The Administrative Agent shall promptly
notify the Borrower of the terms (a) of any Competitive Bid Quote submitted by a
Lender that is in accordance with ss.2A.5 and (b) of any Competitive Bid Quote
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Quote is
submitted solely to correct a manifest error in such former Competitive Bid
Quote and was received by the Administrative Agent within the time period
required in ss.2A.5(a) for receipt of Competitive Bid Quotes. The Administrative
Agent's notice to the Borrower shall specify (i) the aggregate principal amount
of Competitive Bid Loans for which offers have been received for each Interest
Period specified in the related Competitive Bid Quote Request, (ii) the
respective principal amounts and Competitive Bid Margins or Competitive Bid
Rates, as the case may be, so offered, and the identity of the respective
Lenders submitting such offers, and (iii) if applicable, limitations on the
aggregate principal amount of Competitive Bid Loans for which offers in any
single Competitive Bid Quote may be accepted.
ss.2A.7. Acceptance and Notice by Borrower and Administrative Agent. Not
later than 11:00 a.m. (New York City time) on (a) the third Business Day prior
to the proposed Drawdown Date, in the case of a LIBOR Competitive Bid Loan or
(b) the proposed Drawdown
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Date, in the case of an Absolute Competitive Bid Loan, the Borrower shall notify
the Administrative Agent of its acceptance or non-acceptance of each Competitive
Bid Quote in substantially the form of Exhibit K hereto. The Borrower may accept
any Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid
Loan may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Rates, as the case may be,
and
(iii) the Borrower may not accept any offer that is described
in subsection 2A.5(c) or that otherwise fails to comply with the requirements of
this Agreement.
The Administrative Agent shall promptly notify each Lender which submitted a
Competitive Bid Quote of the Borrower's acceptance or non-acceptance thereof. At
the request of any Lender which submitted a Competitive Bid Quote and with the
consent of the Borrower, the Administrative Agent will promptly notify all
Lenders which submitted Competitive Bid Quotes of (a) the aggregate principal
amount of, and (b) the range of Competitive Bid Rates or Competitive Bid Margins
of, the accepted Competitive Bid Loans for each requested Interest Period.
ss.2A.8. Allocation by Administrative Agent. If offers are made by two (2)
or more Lenders with the same Competitive Bid Margin or Competitive Bid Rate, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in such multiples, not less than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determination by the Administrative Agent of
the amounts of Competitive Bid Loans shall be conclusive in the absence of
manifest error.
ss.2A.9. Funding of Competitive Bid Loans. If, on or prior to the Drawdown
Date of any Competitive Bid Loan, the Total Commitment has not terminated in
full and if, on such Drawdown Date, the applicable conditions of ss.ss.10 and 11
hereof are satisfied, and the Administrative Agent shall have received a
certificate in the form of Exhibit D hereto, the Lender or Lenders whose offers
the Borrower has accepted will fund each Competitive Bid Loan so accepted.
Notwithstanding the foregoing, the Borrower shall be able to borrow under this
Agreement during the occurrence of a Default or an Event of Default arising
solely from the Borrower's failure to comply with the provisions of ss.7.22 if
such borrowing is to cure, and will cure, such Default or Event of Default
without causing any other Default or Event of Default. Such Lender or Lenders
will make such Competitive Bid Loans by crediting the Administrative Agent for
further credit to the Borrower's specified account with the
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Administrative Agent, in immediately available funds not later than 1:00 p.m.
(New York City time) on such Drawdown Date.
ss.2A.10. Funding Losses. If, after acceptance of any Competitive Bid
Quote pursuant to ss.2A, the Borrower (a) fails to borrow any Competitive Bid
Loan so accepted on the date specified therefor, or (b) repays the outstanding
amount of the Competitive Bid Loan on or prior to the last day of the Interest
Period relating thereto, the Borrower shall indemnify the Lender making such
Competitive Bid Quote or funding such Competitive Bid Loan against any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain such unborrowed Loans,
including, without limitation compensation as provided in ss.4.8.
ss.2A.11. Repayment of Competitive Bid Loans; Interest. The principal of
each Competitive Bid Loan shall become absolutely due and payable by the
Borrower on the last day of the Interest Period relating thereto, and the
Borrower hereby absolutely and unconditionally promises to pay to the
Administrative Agent for the account of the relevant Lenders at or before 1:00
p.m. (New York City time) on the last day of the Interest Periods relating
thereto the principal amount of all such Competitive Bid Loans, plus interest
thereon at the applicable Competitive Bid Rates or the sum of the Competitive
Bid Margin plus the applicable LIBOR Rate (as the case may be). The Competitive
Bid Loans shall bear interest at the rate per annum specified in the applicable
Competitive Bid Quotes. Interest on the Competitive Bid Loans shall be payable
(a) on the last day of the applicable Interest Periods, and if any such Interest
Period is longer than three months, also on the last day of the third month
following the commencement of such Interest Period, and (b) on the Maturity Date
for all Loans. Subject to the terms of this Credit Agreement, the Borrower may
make Competitive Bid Quote Requests with respect to new borrowings of any
amounts so repaid prior to the Maturity Date. The provisions of ss.2.6 shall not
apply to Competitive Bid Loans.
ss.2A.12. Optional Repayment of Competitive Bid Loans. The Borrower shall
have the right, at its election, to repay the outstanding amount of any of the
Competitive Bid Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any Competitive Bid Loan pursuant to this ss.2A.12 may be made only on the
last day of the Interest Period relating thereto, or, if made prior to such
date, shall be made subject to the provisions of ss.2A.10 hereof. The Borrower
shall give the Administrative Agent no less than three (3) Business Days notice
of any proposed prepayment pursuant to this ss.2A.12, specifying the proposed
date of prepayment of the Competitive Bid Loan and the principal amount to be
prepaid. Each such partial prepayment of any Competitive Bid Loan shall be in an
integral multiple of $500,000, and shall be accompanied by the payment of
accrued interest on the principal prepaid to the date of prepayment.
ss.3. LETTERS OF CREDIT.
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ss.3.1. Letter of Credit Commitments.
ss.3.1.1. Commitment to Issue Letters of Credit. Subject to the
terms and conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Fronting Bank's customary form as part of a
Completed Revolving Credit Loan Request (a "Letter of Credit Application"), the
Fronting Bank on behalf of the Lenders and in reliance upon the agreement of the
Lenders set forth in ss.3.1.4 and upon the representations and warranties of the
Borrower contained herein, agrees, in its individual capacity, to issue, extend
and renew for the account of the Borrower one or more standby or documentary
letters of credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrower and reasonably agreed to by the
Fronting Bank; provided, however, that, after giving effect to such Completed
Revolving Credit Loan Request, (a) the Maximum Drawing Amount shall not exceed
$100,000,000 at any one time, (b) the sum of (i) the Maximum Drawing Amount on
all Letters of Credit and (ii) the amount of all Revolving Credit Loans and
Competitive Bid Loans outstanding shall not exceed the Total Commitment in
effect at such time, and (c) the total number of Letters of Credit outstanding
shall not exceed twenty (20).
ss.3.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the reasonable satisfaction of the
Administrative Agent and the Fronting Bank. In the event that any provision of
any Letter of Credit Application shall be inconsistent with any provision of
this Agreement (including provisions applicable to a Completed Revolving Credit
Loan Request), then the provisions of this Agreement shall, to the extent of any
such inconsistency, govern.
ss.3.1.3. Terms of Letters of Credit. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (i) provide for the
payment of sight drafts for honor thereunder when presented in accordance with
the terms thereof and when accompanied by the documents described therein, and
(ii) have an expiry date no later than the earlier of (x) one year from the date
of issuance or (y) the date which is thirty (30) days prior to the Maturity
Date. Each Letter of Credit so issued, extended or renewed shall be subject to
the Uniform Customs.
ss.3.1.4. Reimbursement Obligations of Lenders. Each Lender
severally agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition precedent
whatsoever, to the extent of such Lender's Commitment Percentage, to reimburse
the Fronting Bank on demand pursuant to ss.3.3 for the amount of each draft paid
by the Fronting Bank under each Letter of Credit to the extent that such amount
is not reimbursed by the Borrower pursuant to ss.3.2 (such agreement for a
Lender being called herein the "Letter of Credit Participation" of such Lender).
ss.3.2. Reimbursement Obligation of the Borrower. In order to induce the
Fronting Bank to issue, extend and renew each Letter of Credit and the Lenders
to participate therein,
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the Borrower hereby agrees, except as contemplated in ss.3.3 below, to reimburse
or pay to the Fronting Bank, for the account of the Fronting Bank or (as the
case may be) the Lenders, with respect to each Letter of Credit issued, extended
or renewed by the Fronting Bank hereunder,
(a) except as otherwise expressly provided in ss.3.2(b) or ss.3.3,
on each date that any draft presented under such Letter of Credit is honored in
accordance with its terms by the Fronting Bank, or the Fronting Bank otherwise
makes a payment with respect thereto in accordance with applicable law, (i) the
amount paid by the Fronting Bank under or with respect to such Letter of Credit,
and (ii) any amounts payable pursuant to ss.4.5 hereof under, or with respect
to, such Letter of Credit, and
(b) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all Letters of
Credit in accordance with ss.12, an amount equal to the then Maximum Drawing
Amount on all Letters of Credit, which amount shall be held by the
Administrative Agent as cash collateral for the benefit of the Fronting Bank,
the Lenders and the Administrative Agent for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Head Office in immediately available funds. Interest on
any and all amounts not converted to a Revolving Credit Loan pursuant to ss.3.3
and remaining unpaid by the Borrower under this ss.3.2 at any time from the date
such amounts become due and payable (whether as stated in this ss.3.2, by
acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Administrative Agent for the benefit of the
Lenders on demand at the rate specified in ss.4.9 for overdue principal on the
Revolving Credit Loans.
ss.3.3. Letter of Credit Payments; Funding of a Loan. If any draft shall
be presented or other demand for payment shall be made under any Letter of
Credit, the Fronting Bank shall notify the Borrower and the Lenders of the date
and amount of the draft presented or demand for payment and of the date and time
when it expects to pay such draft or honor such demand for payment, and, except
as provided in this ss.3.3, the Borrower shall reimburse Administrative Agent,
as set forth in ss.3.2 above. Notwithstanding anything contained in ss.3.2 above
or this ss.3.3 to the contrary, however, unless the Borrower shall have notified
the Administrative Agent and the Fronting Bank prior to 11:00 a.m. (New York
time) on the Business Day immediately prior to the date of such drawing that the
Borrower intends to reimburse the Fronting Bank for the amount of such drawing
with funds other than the proceeds of the Loans, the Borrower shall be deemed to
have timely given a Completed Revolving Credit Loan Request pursuant to ss.2.5
to the Administrative Agent, requesting a Alternate Base Rate Loan on the date
on which such drawing is honored and in an amount equal to the amount of such
drawing. The Borrower may thereafter convert any such Alternate Base Rate Loan
to a Revolving Credit Loan of another Type in accordance with ss.2.6. Each
Lender shall, in accordance with ss.2.7, make available such Lender's Commitment
Percentage of such Revolving Credit Loan to the Administrative Agent, the
proceeds of which shall be applied directly by the Administrative Agent to
reimburse the Fronting Bank for the
412
amount of such draw. In the event that any Lender fails to make available to the
Administrative Agent the amount of such Lender's Commitment Percentage of such
Revolving Credit Loan on the date of the drawing, the Administrative Agent shall
be entitled to recover such amount on demand from such Lender plus any
additional amounts payable under ss.2.7(b) in the event of a late funding by a
Lender. The Fronting Bank is irrevocably authorized by the Borrower and each of
the Lenders to honor draws on each Letter of Credit by the beneficiary thereof
in accordance with the terms of the Letter of Credit. The responsibility of the
Fronting Bank to the Borrower and the Lenders shall be only to determine that
the documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
ss.3.4. Obligations Absolute. The Borrower's obligations under this ss.3
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Administrative Agent, the
Fronting Bank, any Lender or any beneficiary of a Letter of Credit. The Borrower
further agrees with the Administrative Agent, the Fronting Bank and the Lenders
that the Administrative Agent, the Fronting Bank and the Lenders shall not be
responsible for, and the Borrower's Reimbursement Obligations under ss.3.2 shall
not be affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon (so long as the documents delivered under each
Letter of Credit in connection with such presentment shall be in the form
required by, and in conformity in all material respects with, such Letter of
Credit), even if such documents should in fact prove to be in any or all
respects invalid, fraudulent or forged, or any dispute between or among any of
the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to whom any Letter of Credit may be transferred, or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee. If done in good faith and absent gross
negligence, the Administrative Agent, the Fronting Bank and the Lenders shall
not be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. The Borrower agrees that any action taken
or omitted by the Administrative Agent, the Fronting Bank or any Lender under or
in connection with each Letter of Credit and the related drafts and documents,
if done in good faith and absent gross negligence, shall be binding upon the
Borrower and shall not result in any liability on the part of the Administrative
Agent, the Fronting Bank or any Lender to the Borrower.
ss.3.5. Reliance by Issuer. To the extent not inconsistent with ss.3.4,
the Administrative Agent and the Fronting Bank shall be entitled to rely, and
shall be fully protected in relying upon, any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon advice and statements of legal
counsel, independent accountants and other experts selected by the
Administrative Agent or the Fronting Bank.
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The Administrative Agent and the Fronting Bank shall in all cases be fully
protected by the Lenders in acting, or in refraining from acting, under this
ss.3 in accordance with a request of the Majority Lenders, and such request and
any action taken or failure to act pursuant thereto shall be binding upon the
Lenders and all future holders of the Notes or of a Letter of Credit
Participation.
ss.3.6. Letter of Credit Fee. The Borrower shall pay to the Administrative
Agent a fee (in each case, a "Letter of Credit Fee") in an amount equal to the
Applicable L/C Percentage of the face amount of each outstanding Letter of
Credit, which fee (a) shall be payable quarterly in arrears on the first day of
each calendar quarter for the immediately preceding calendar quarter, with a
final payment on the Maturity Date or any earlier date on which the Commitments
shall terminate (which Letter of Credit Fee shall be pro-rated for any calendar
quarter in which such Letter of Credit is issued, drawn upon or otherwise
reduced or terminated) and (b) shall be for the accounts of the Lenders as
follows: (i) an amount equal to 0.125% per annum of the face amount of the
Letter of Credit shall be for the account of the Fronting Bank and (ii) the
remainder of the Letter of Credit Fee shall be for the accounts of the Lenders
(including the Fronting Bank) pro rata in accordance with their respective
Commitment Percentages. In respect of each Letter of Credit, the Borrower shall
also pay to the Fronting Bank for the Fronting Bank's own account, at such other
time or times as such charges are customarily made by the Fronting Bank, the
Fronting Bank's customary issuance, amendment, negotiation or document
examination and other administrative fees as in effect from time to time.
ss.3.7. Existing Letters of Credit. Those Letters of Credit issued to the
Borrower by Fleet under the Revolving Credit Agreement dated as of August 6,
1997 and identified on Schedule 3.7 hereto (the "Existing Letters of Credit")
shall for all purposes be deemed to be Letters of Credit issued under this
Agreement.
ss.4. CERTAIN GENERAL PROVISIONS.
ss.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
414
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.
ss.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.
ss.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 or Competitive
Bid Request with respect to LIBOR Rate Loans shall be automatically withdrawn
and shall be deemed a request for Alternate Base Rate Loans (in the case of
Revolving Credit Loans) or Absolute Competitive Bid Loans (in the case of
Competitive Bid Loans), (b) each Revolving Credit 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.
ss.4.4. Illegality. Subject to ss.ss.4.11 and 4.12 hereof, but
notwithstanding any other provisions herein, if any present or future law,
regulation, treaty or directive or 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 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
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forthwith be suspended and (b) such Lender's Commitment Percentage of Revolving
Credit 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 ss.ss.4.11 and 4.12 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
ss.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.
ss.4.5. Additional Costs, Etc. Subject to ss.ss.4.11 and 4.12 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, any Letters of Credit, 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, any Letters of Credit, 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
416
(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 any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Lender or
the Administrative Agent hereunder on account of such Lender's
Commitment, any Letter of Credit 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 Reimbursement
Obligation or other sum payable hereunder, the amount of which
payment or foregone interest or Reimbursement Obligation 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.
ss.4.6. Capital Adequacy. Subject to ss.ss.4.11 and 4.12 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
417
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 ss.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.
ss.4.7. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.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.
ss.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 ss.2.6(c) to have given a
Completed Revolving Credit Loan Request or Competitive Bid 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.
ss.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). In addition,
the Borrower shall pay on demand a late charge equal to five percent (5%) of any
amount of principal (other than principal due on the Maturity Date) and/or
interest charges on the Loans which is not paid within ten (10) days of the date
when due.
ss.4.10. [Intentionally Omitted]
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ss.4.11. 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 ss.ss.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 minimus
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.
ss.4.12. 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 ss.ss.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 ss.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 ss.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, and/or
participate in Letters of Credit, 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 ss.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 ss.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 ss.ss.4.4, 4.5 and 4.8.
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ss.5. GUARANTIES.
ss.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.
ss.5.2. [Intentionally Omitted]
ss.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 ss.6.
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ss.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
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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. 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), 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
422
equity interests in any of MCRC's Subsidiaries. Except as
disclosed in Schedule 6.1(b), 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.
ss.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
423
governmental agency or authority, other than filings which will be made with the
SEC when and as required by law.
ss.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, the Borrower or (if after the Closing Date) 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.
(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 ss.6.4 or acquired in fee title (or, if Real
Estate, permitted leasehold title) 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 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 will be updated
quarterly at the time of delivery of the financial statements pursuant to
ss.7.4(b).
ss.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, 1997 and their related consolidated income statements for the
fiscal year ended December 31, 1997. 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
424
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.
ss.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 ss.8.9 hereof.
ss.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.
ss.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.
ss.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.
ss.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,
425
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.
ss.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 except those which would not be in violation of ss.8.1(b)
hereof 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
any amount in violation of ss.8.1(b) hereof claimed to be due by the taxing
authority of any jurisdiction, 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 except
those which would not be in violation of ss.8.1(b) hereof, 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
any amount in violation of ss.8.1(b) hereof claimed to be due by the taxing
authority of any jurisdiction from any Partially-Owned Entity, and the officers
of the Borrower know of no basis for any such claim.
ss.6.11. No Event of Default; No Materially Adverse Changes. No Default or
Event of Default has occurred and is continuing. Since December 31, 1997 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 December 31, 1997, 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.
ss.6.12. Investment Company Acts. None of the Borrower, any Guarantor or
any of their respective Subsidiaries is an "investment company", or an
"affiliated company" or a
426
"principal underwriter" of an "investment company", as such terms are defined in
the Investment Company Act of 1940.
ss.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, except for the Harborside Pledged Interests pledged to
PSC in connection with the Harborside Transaction.
ss.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.
ss.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.
ss.6.16. Employee Benefit Plans.
ss.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
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provisions thereunder respecting prohibited transactions and the bonding
of fiduciaries and other persons handling plan funds as required by ss.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 ss.103(d) of ERISA, with respect to each Guaranteed Pension Plan.
ss.6.16.2 Terminability of Welfare Plans.
No Employee Benefit Plan, which is an employee welfare benefit plan within
the meaning of ss.3(1) or ss.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.
ss.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 ss.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
ss.307 of ERISA or ss.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 ss.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.
ss.6.16.4 Multiemployer Plans.
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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 ss.4201 of ERISA or as a result of a sale of
assets described in ss.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 ss.4241 or
ss.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 ss.4041A of ERISA.
ss.6.17. Regulations U and X. The proceeds of the Loans shall be used for
the purposes described in ss.7.12. No portion of any Loan is to be used, and no
portion of any Letter of Credit is to be obtained, 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.
ss.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. Except as disclosed in the environmental assessments provided
to the Administrative Agent pursuant to ss.10.7 and based upon such assessments
and/or investigation, to the Borrower's knowledge, the Borrower has determined
that:
(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 ("XXXX"), 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 000 Xxxxxxxx X (1986), (ii) that
any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any
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hazardous substances as defined by 42 U.S.C. ss. 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. ss.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.
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ss.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 ss.7.4(a) to reflect any changes, including subsequent
Guarantor and its Subsidiaries, if any.
ss.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.
ss.6.21. REIT Status. MCRC has not taken any action that would prevent it
from maintaining its qualification as a REIT for its tax year ended December 31,
1997 or from maintaining such qualification at all times during the term of the
Loans.
ss.6.22. Subsequent Guarantors. The foregoing representations and
warranties in ss.6.3 through ss.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.
ss.6.23. Year 2000. The Borrower shall use all commercially reasonable
efforts to diligently complete in good faith substantially all reprogramming
required to permit the proper functioning, in and following the year 2000, of
(i) the Borrower's and the Guarantors' computer systems and (ii) equipment
containing embedded microchips (including systems and equipment supplied by
others or with which Borrower's or the Guarantors' systems interface) and the
testing of all such systems and equipment, as so reprogrammed. Such
reprogramming and testing, and the reasonably foreseeable consequences of year
2000 to the Borrower and the Guarantors will not result in an Event of Default
or have a Material Adverse Effect on the Borrower, the Guarantors and their
Subsidiaries taken as a whole. Except for such of the reprogramming referred to
in the preceding sentence as may be necessary, the computer and management
information systems of each of the Borrower, the Guarantors and their
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the Borrower
and the Guarantors to conduct their respective businesses without any Material
Adverse Effect on the Borrower, the Guarantors and their Subsidiaries taken as a
whole.
ss.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, Letter of Credit or Note is outstanding or
the Lenders have any
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obligation to make any Loans or any Lender has any obligation to issue, extend
or renew any Letters of Credit:
ss.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.
ss.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.
ss.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 Price Waterhouse 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.
ss.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:
(i) in the case of MCRLP, if prepared, 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)
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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 without
qualification by the Accountants;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of its fiscal quarters:
(i) in the case of MCRLP, if prepared, 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 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 signed by the chief financial officer
or 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 ss.9 hereof; and, in the case of
MCRLP, setting forth in reasonable detail computations evidencing compliance
with the covenants contained in ss.8.7 and ss.9 hereof;
433
(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 without limitation, pro forma
financial statements described in ss.9.9(b)(ii) complete rent rolls for the
Unencumbered Properties and summary rent rolls for the other Real Estate,
existing environmental reports, 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); and
(i) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, updates to Schedule 6.3 and
Schedule 6.19 hereto.
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ss.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; 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.
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(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 $1,000,000.
(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. In addition, to the
extent not otherwise provided to the Administrative Agent in its press release
and Form 10-Q filings with the SEC, the Borrower shall provide to the
Administrative Agent on a quarterly basis together with the financial statements
referred to in ss.7.4(b) the following information with respect to all Real
Estate acquired during the prior quarter: its address, a brief description, a
brief summary of the key business terms of such acquisition (including sources
and uses of funds for such acquisition), a brief summary of the principal terms
of any financing for such Real Estate, and a statement as to whether such Real
Estate qualifies as an Unencumbered Property.
ss.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,
436
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 ss.7.7 hereof; provided that nothing in
this ss.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.
ss.7.7. Existence of MCRC; Maintenance of REIT Status of MCRC; Maintenance
of Properties. 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. 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 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,
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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 ss.7.7; provided that nothing in this ss.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.
ss.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.
ss.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 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 ss.7.9 shall only constitute an Event of Default if such breach results in
a violation of the covenant set forth in ss.8.1(b) hereof.
ss.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
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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 executed by the Administrative Agent as of
the date hereof. 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.
ss.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.
ss.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 (a) to
finance the acquisition, renovation and development of office, office/flex,
industrial/warehouse and multifamily residential properties, (b) to finance the
repayment or prepayment of Indebtedness, (c) for general working capital needs
(including letters of credit), (d) to finance investments in Opportunity Funds,
and (e) to finance the acquisition of mortgage receivables.
ss.7.13. Acquisition of Unencumbered Properties. The Borrower shall
promptly, but in any event within thirty (30) days of the acquisition of an
Unencumbered Property or the qualification of any Real Estate as an Unencumbered
Property, deliver to the Administrative Agent a copy of the Title Policy or
commitment for a Title Policy and the final environmental site assessment for
such Unencumbered Property.
ss.7.14. Additional Guarantors; Solvency of Guarantors.
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(a) If, after the Closing Date, a Subsidiary, that is not a
Guarantor, 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, 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 ss.7.14(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.
ss.7.15. 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.
ss.7.16. [Intentionally Omitted]
ss.7.17. 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
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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.
ss.7.18. 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.
ss.7.19. 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.
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ss.7.20. 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 ss.3(1) or ss.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.
ss.7.21. 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 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.
ss.7.22. Primary Credit Facility. The Borrower will at all times use this
Agreement as the Borrower's primary revolving credit agreement and will not at
any time during the term of this Agreement permit that ratio of (a) the sum of
the outstanding principal balance of the Loans plus the Maximum Drawing Amount
to (b) the Total Commitment (the "Outstanding Ratio") to be less than the
corresponding ratio under any other revolving credit agreement maintained by the
Borrower or any Guarantor, including MCRC, except that the corresponding ratio
under the $100,000,000 credit facility with PSC (as amended, modified, restated
or refinanced so long as the amount of such facility does not exceed
$100,000,000) may exceed the Outstanding Ratio from time to time.
ss.7.23. Management. Except by reason of death or incapacity, at least
three (3) of the Key Management Individuals (as hereinafter defined) shall
remain active in the executive and/or operational management, in their current
(or comparable) positions, of MCRC (which
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is and shall remain the sole general partner and management of MCRLP); provided,
however, if at least three (3) of the Key Management Individuals are not so
active in such positions (except by reason of death or incapacity as aforesaid),
then within ninety (90) days of the occurrence of such event, MCRC shall propose
and appoint such individual(s) of comparable experience, reputation and
otherwise reasonably acceptable to the Majority Lenders to such position(s) such
that, after such appointment, such acceptable replacement individuals, together
with the Key Management Individuals remaining so active in such positions with
MCRC, if any, total at least three (3). For purposes hereof, "Key Management
Individuals" shall mean and include Xxxxxx X. Xxxx, Xxxxxxxx X. Xxxxx, Xxxx X.
Xxxx, Xxxxx X. Xxxx, Xxxxx Xxxxxxxxx, Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx.
ss.7.24. Distributions in the Ordinary Course. In the ordinary course of
business MCRLP causes all of its and MCRC's Subsidiaries to make net
Distributions, as described in clause (iii) of the definition thereof, upstream
to MCRLP and MCRC, and shall continue to follow such ordinary course of
business.
ss.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, Letter of Credit or Note is outstanding or any of the
Lenders has any obligation to make any Loans or any Lender has any obligation to
issue, extend or renew any Letters of Credit:
ss.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 ss.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 ss.9 hereof or under any other provision of this Agreement;
(b) An aggregate amount in excess of $10,000,000 at any one time in
respect of (i) taxes, assessments, governmental charges or levies and claims for
labor, materials and supplies for which payment therefor is required to be made
in accordance with the provisions of ss.7.9 and has not been timely made, (ii)
uninsured judgments or awards, with respect to which the applicable periods for
taking appeals have expired, or with respect to which final and unappealable
judgments or awards have been rendered, and (iii) current unsecured liabilities
incurred in the ordinary course of business, which (A) are overdue for more than
sixty (60) days, and (B) are not being contested in good faith; and
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(c) Guarantees of the Indebtedness of any Opportunity Fund.
The terms and provisions of this ss.8.1 are in addition to, and not in
limitation of, the covenants set forth in ss.9 of this Agreement.
ss.8.2. Restrictions on Liens, Etc. 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 ss.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, the Indebtedness with respect to which
is not prohibited by ss.8.1(b);
(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, the Indebtedness with respect to which is not
prohibited by ss.8.1(b);
(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
444
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 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 are 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 ss.8.1;
(x) other Liens (other than affecting the Unencumbered Properties)
in connection with any Indebtedness not prohibited under ss.8.1 which do not
otherwise result in a Default or Event of Default under this Agreement; and
(xi) Liens granted in accordance with ss.8.4(b) hereof.
Notwithstanding the foregoing provisions of this ss.8.2, the failure of
any Unencumbered Property to comply with the covenants set forth in this ss.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.
ss.8.3. Restrictions on Investments. None of the Borrower, any Guarantor,
or any Subsidiary will make or permit to exist or to remain outstanding any
Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase;
445
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks having total assets in excess of
$1,000,000,000 provided that any such deposits may be moved to a qualifying bank
within thirty (30) days after the Borrower, Guarantor or Subsidiary has
knowledge that any depository bank no longer has total assets in excess of such
amounts;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof, or in both cases any governmental subdivision,
that at the time of purchase have been rated and the ratings for which are not
less than "P 1" if rated by Xxxxx'x, and not less than "A 1" if rated by S&P;
(d) Investments existing on the Closing Date and listed on Schedule
8.3(d) hereto;
(e) So long as no Event of Default enumerated in ss.8.7(a)(ii) has
occurred and is continuing or would occur after giving effect thereto,
acquisitions of Real Estate consistent with the requirements of the fourth
sentence of ss.7.7 hereof and the equity of Persons, provided (i) that within
thirty (30) days after any such Investment the total assets of MCRLP, MCRC and
their Subsidiaries, taken as a whole, shall be comprised of assets of which
eighty-five percent (85%) or more comply with the parameters of the fourth
sentence of ss.7.7 hereof and (ii) that the Borrower shall not permit any of its
Subsidiaries which is not a Guarantor, or which does not become a Guarantor, to
acquire any Unencumbered Property, and in all cases such Guarantor shall be a
wholly-owned Subsidiary of MCRLP;
(f) any Investments now or hereafter made in the Borrower, any
Guarantor or other Subsidiary, as identified or which will be identified from
time to time in Schedule 8.3(f) hereto, which Schedule 8.3(f) shall be updated
annually at the time of the delivery of the financial statements referred to in
ss. 7.4(a) hereof;
(g) Investments in respect of (1) equipment, inventory and other
tangible personal property acquired in the ordinary course of business, (2)
current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade
terms, (3) advances to employees for travel expenses, drawing accounts and
similar expenditures, and (4) prepaid expenses made in the ordinary course of
business;
(h) any other Investments made in the ordinary course of business
and consistent with past business practices;
(i) interest rate xxxxxx in connection with Indebtedness;
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(j) shares of so-called "money market funds" registered with the SEC
under the Investment Company Act of 1940 which maintain a level per-share value,
invest principally in marketable direct or guaranteed obligations of the United
States of America and agencies and instrumentalities thereof, and have total
assets in excess of $50,000,000 provided that any such shares are moved to a
qualifying money market fund within thirty (30) days after the Borrower, any
Guarantor or any Subsidiary has knowledge that any money market fund no longer
has total assets in excess of that amount; and
(k) Investments permitted under ss.9.8 hereof.
ss.8.4. 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 and (iii) such merger, consolidation or reorganization does
not cause a breach of ss.7.23 hereof or a Default or Event of Default under
ss.12.1(m) hereof; provided, that for any such merger, consolidation or
reorganization (other than (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 treasurer or 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 ss.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 xxxxx x Xxxx 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 after written notice to the Administrative Agent 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
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Sale or Indebtedness Lien; provided, that prior to any Sale of any
Unencumbered Property or other Real Estate or the granting of an
Indebtedness Lien under this clause (i), the Borrower shall provide to the
Administrative Agent a statement in the form of Exhibit D hereto signed by
the chief financial officer or treasurer or 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 ss.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;
(ii) the Sale of or the granting of an Indebtedness Lien on any
Unencumbered Property while a Default or Event of Default (other than a
Default or an Event of Default under ss.12.1(a) (including, without
limitation, any such failure to pay resulting from acceleration of the
Loans), ss.12.1(b), ss.12.1(c) (resulting from a failure to comply with
ss.7.7 (as to the legal existence and REIT status of MCRC) or ss.9),
ss.12.1(g), ss.12.1(h), or ss.12.1(j)) has then occurred and is continuing
or would occur and be continuing after giving effect to such Sale or
Indebtedness Lien; provided, that the Borrower shall (A) apply the net
proceeds of each such permitted Sale or Indebtedness Lien to the repayment
of the Loans or (B) 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 ss. 1031 of the Code or to another use with the prior written
approval of the Required Lenders or (C) complete an exchange of such
Unencumbered Property for other real property of equivalent value under
ss. 1031 of the Code so long as such other real property becomes an
Unencumbered Property upon acquisition, and, in any event, the Borrower
shall provide to the Administrative Agent a statement in the form of
Exhibit D hereto signed by the chief financial officer, or treasurer or
vice president of finance or other thereon designated officer and setting
forth in reasonable detail computations evidencing compliance with the
covenant in ss.9 hereof and certifying the use of the proceeds of such
Sale or Indebtedness Lien and certifying that no Default or Event of
Default above enumerated has occurred and is continuing or would occur and
be continuing after giving effect to such Sale or Indebtedness Lien, and
all liabilities fixed or contingent pursuant thereto;
(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 or would occur and be
continuing after giving effect to such Sale or Indebtedness Lien;
provided, that the Borrower shall (A) apply the net proceeds of each such
Sale or Indebtedness Lien to the repayment of the Loans or (B) 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
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exchange under ss. 1031 of the Code or to another use with the prior
written approval of the Required Lenders or (C) complete an exchange of
such Real Estate for other real property of equivalent value under ss.
1031 of the Code;
(iv) the Sale or granting of an Indebtedness Lien on any
Unencumbered Property while any Default or Event of Default has then
occurred and is continuing provided (A) the Borrower shall provide to the
Administrative Agent a statement in the form of Exhibit D hereto signed by
the chief financial officer or treasurer or vice president of finance or
other thereon designated officer of the Borrower and setting forth in
reasonable detail computations evidencing the status of compliance with
the covenants contained in ss.9 hereof and certifying that the continuing
Default or Event of Default will be cured by such proposed Sale or
Indebtedness Lien and no other Default or Event of Default would occur and
be continuing after giving effect to such proposed Sale or Indebtedness
Lien and all liabilities fixed or contingent, pursuant thereto and (B) the
Sale or granting of an Indebtedness Lien pursuant to this ss.8.4(b) (iv)
shall not (x) occur more than four times during the period that any
Commitment is outstanding, (y) involve a Sale or Indebtedness Lien for
greater than $200,000,000 in the aggregate in the combined four permitted
occasions (which shall be the maximum member of permitted occasions) under
(x), or (z) involve a Sale at less than fair market value or an
Indebtedness Lien on terms more onerous or expensive than fair market
terms from institutional lenders; and
(v) 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.
ss.8.5. 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 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), 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 ss.8.5 before the same shall be an Event of
Default under ss.12.1(c).
ss.8.6. 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
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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 ss.12.1(d) if such
breach is not a Non-Material Breach.
ss.8.7. 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 (other than pursuant to clause
(iii) in the definition of Distribution) in such period in an aggregate amount
in excess of 90% of Funds From Operations for such period or (ii) will not make
any Distributions (other than pursuant to clause (iii) in the definition of
Distribution) during any period when any Event of Default under ss.12.1(a)
(including, without limitation, any failure to pay resulting from acceleration
of the Loans) ss.12.1(b), ss.12.1(c) resulting from a failure to comply with
ss.7.7 (as to the legal existence and REIT status of MCRC), ss.9, ss.12(g),
ss.12.1(h), or ss.12.1(j) has occurred and is continuing or (iii) will not make
any Distributions 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 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.
ss.8.8. Employee Benefit Plans. None of the Borrower, any Guarantor or any
ERISA Affiliate will
(a) engage in any "prohibited transaction" within the meaning of ss.406 of
ERISA or ss.4975 of the Code which could result in a material liability for the
Borrower, any Guarantor or any of their respective Subsidiaries; or
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(b) permit any Guaranteed Pension Plan to incur an "accumulated funding
deficiency", as such term is defined in ss.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 ss.302(f) or ss.4068 of
ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to ss.307 of ERISA or ss.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 ss.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 ss.12.1(c) if the prohibited matters occurring are in the
aggregate within the Dollar limits permitted within ss.12.1(l) and are otherwise
the subject of the matters that are covered by the Events of Default in
ss.12.1(l)
ss.8.9. 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 ss.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
ss.9) to reflect such change in fiscal year.
ss.9. FINANCIAL COVENANTS OF THE BORROWER. The Borrower covenants and
agrees that, so long as any Loan, Letter of Credit or Note is outstanding or any
Lender has any obligation to make any Loan or any Lender has any obligation to
issue, extend or renew any Letters of Credit:
ss.9.1. Leverage Ratio. As at the end of any fiscal quarter or other date
of measurement, the Borrower shall not permit Consolidated Total Liabilities to
exceed 55% of Consolidated Total Capitalization.
ss.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 Capitalized NOI.
ss.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
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the sum of (a) $1,250,000,000 plus (b) 75% 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 the Closing Date and on or prior to the date such determination of
Consolidated Tangible Net Worth is made.
ss.9.4. Debt Service 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 two (2) times Consolidated Total Debt Service, based
on the results of the most recent two (2) complete fiscal quarters. For purposes
of this ss.9.4, the Consolidated Total Debt Service of the Borrower shall
include, on a net basis, positive amortization and negative amortization of each
of the Harborside Assumed Debt.
ss.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 three-quarters (1.75) times Consolidated
Fixed Charges, based on the results of the most recent two (2) complete fiscal
quarters.
ss.9.6. Unsecured Indebtedness. As at the end of any fiscal quarter or
other date of measurement, the Borrower shall not permit Consolidated Unsecured
Indebtedness to exceed 60% of aggregate Capitalized Unencumbered Property NOI
for all Unencumbered Properties.
ss.9.7. Unencumbered Property Debt Service 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 Debt Service, based on
the results of the most recent two (2) complete fiscal quarters.
ss.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 Capitalized NOI.
(b) Investments in Opportunity Funds shall be Without Recourse to
the Borrower, the Guarantors and their Subsidiaries as required in the
definition of Opportunity Fund, shall otherwise comply with the requirements of
the definition of Opportunity Fund, and shall not exceed the lesser of 7.5% of
Consolidated Capitalized NOI or $150,000,000.
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(c) As at the end of any fiscal quarter or other date of
measurement, the aggregate Budgeted Project Costs of all Construction-in-Process
shall not exceed fifteen (15%) percent of Consolidated Capitalized NOI. For
purposes of this ss.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 Xxxxx'x, 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.
(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 Capitalized NOI.
(e) The Investments set forth in clauses (a) through (d) above,
taken in the aggregate, shall not exceed thirty (30%) percent of Consolidated
Capitalized NOI.
(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 Capitalized NOI.
ss.9.9. Covenant Calculations.
(a) For purposes of the calculations to be made pursuant to
ss.ss.9.1-9.8 (and the defined terms relevant thereto, including, without
limitation, those relating to "debt service"), 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),
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(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 ss.ss.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), (ii) to include the pro forma results of any Real Estate acquired by the
Borrower, a Guarantor or any of their respective Subsidiaries during the
relevant fiscal period, with such pro forma results being calculated by (x)
using the Borrower's pro forma projections for such acquired property, subject
to the Administrative Agent's reasonable approval, if such property has been
owned by the Borrower, a Guarantor or any of their respective Subsidiaries for
less than one complete fiscal quarter or (y) using the actual results for such
acquired property and adjusting such results for the appropriate period of time
required by the applicable financial covenant, if such property has been owned
by the Borrower, a Guarantor or any of their respective Subsidiaries for at
least one complete fiscal quarter (for Revised Consolidated Adjusted Net Income
and Revised Adjusted Unencumbered Property NOI only) and (iii) 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 ofss.ss.9.1 - 9.8 hereof, if any change in GAAP
after the Financial Statement Date results in a material change in the
calculation to be performed in any such section, solely as a result of such
change in GAAP, the Lenders and the Borrower shall negotiate in good faith a
modification of any such covenant(s) so that the economic effect of the
calculation of such covenant(s) using GAAP as so changed is as close as feasible
to what the
454
economic effect of the calculation of such covenant(s) would have been using
GAAP in effect as of the Financial Statement Date.
ss.10. CONDITIONS TO THE CLOSING DATE. The obligations of the Lenders to
make the initial Revolving Credit Loans and of the Fronting Bank to issue any
initial Letters of Credit shall be subject to the satisfaction of the following
conditions precedent on or prior to April ___, 1998:
ss.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.
ss.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, and/or other
organizational documents as in effect on the Closing Date, 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.
ss.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.
ss.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 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 Loan Requests,
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Conversion Requests and Competitive Bid Requests and to apply for Letters of
Credit 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.
ss.10.5. Title Policies. The Administrative Agent (on behalf of the
Lenders) shall have received copies of the Title Policies for all Real Estate
which are Unencumbered Properties as of the Closing Date.
ss.10.6. 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.
ss.10.7. Environmental Site Assessments. The Administrative Agent shall
have received environmental site assessments from a hydrogeologist,
environmental engineer, qualified consultant or other expert and in form and
substance reasonably satisfactory to the Administrative Agent, covering all Real
Estate and all other real property in respect of which the Borrower or any of
its Subsidiaries may have material liability, whether contingent or otherwise,
for dumping or disposal of Hazardous Substances and which are in the possession
of the Borrower.
ss.10.8. 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, Xxxxxxx & Xxxxx, as counsel to the Borrower, and 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,
Xxxxxxx and Ingersoll, as counsel to MCRC, with respect to Maryland law, (c)
Xxxx & Xxxxxxxx, as counsel to the Borrower and the Subsidiary Guarantors with
respect to Connecticut law, (d) Eckell Sparks Levy Xxxxxxxx Xxxxx & Xxxxx, as
counsel to the Borrower and the Subsidiary Guarantors with respect to
Pennsylvania law, (e) Xxxxx, Day, Xxxxxx & Xxxxx, as counsel to the Borrower and
the Subsidiary Guarantors with respect to Texas law, (f) Gunster, Yoakley,
Xxxxxx-Xxxxx & Xxxxxxx P.A., as counsel to the Borrower and the Subsidiary
Guarantors with respect to Florida law, and (g) Battle Xxxxxx LLP as counsel to
the Borrower and the Subsidiary Guarantors with respect to California law.
ss.10.9. Tax and Securities Law Compliance. Each of the Lenders and the
Administrative Agent shall also have received from Pryor, Cashman, Xxxxxxx &
Xxxxx, 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
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Administrative Agent, with respect to the qualification of MCRC as a REIT and
certain other tax and securities laws matters.
ss.10.10. Guaranties. Each of the Guaranties to be executed and delivered
on the Closing Date shall have been duly executed and delivered by the Guarantor
thereunder.
ss.10.11. Certifications from Government Officials; UCC-11 Reports. The
Administrative Agent shall have received (i) 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; and
(ii) UCC-11 search results from the appropriate jurisdictions for the Borrower
and each Guarantor with respect to the Unencumbered Properties.
ss.10.12. 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.
ss.10.13. Fees. The Borrower shall have paid to the Administrative Agent,
for the accounts of the Lenders, the Syndication Agent, the Arrangers 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.
ss.10.14. 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 ss.9 hereof, the absence of any Default or Event
of Default, and the accuracy of all representations and warranties in all
material respects.
ss.10.15. 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 ss.10.2 through ss.10.8, ss.10.10
and ss.10.11.
ss.10.16. Existing Credit Facility. The existing Indebtedness of the
Borrower to the lenders party to the Revolving Credit Agreement dated as of
August 6, 1997 among the
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Borrower, such lenders, Fleet, as agent for such lenders and the other parties
thereto, shall have been satisfied in full, or will be satisfied in full with
the proceeds of the initial Revolving Credit Loan hereunder, and such Revolving
Credit Agreement shall have been (or will be) terminated; provided that the
Existing Letters of Credit (as defined in ss.3.7 hereof) shall remain
outstanding and become Letters of Credit under this Agreement.
ss.11. CONDITIONS TO ALL BORROWINGS. The obligations of the Lenders to
make any Loan and of any Lender to issue, extend or renew any Letter of Credit,
in each case, whether on or after the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
ss.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 each Loan or the issuance,
extension or renewal of each Letter of Credit, 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 Competitive Bid
Request or on the Drawdown Date of any Loan (other than a Default or Event of
Default arising solely from the Borrower's failure to comply with the provision
of ss. 7.22 and such borrowing is to cure, and will cure, such Default or Event
of Default without causing any other Default or Event of Default). Each of the
Lenders shall have received a certificate of the Borrower as provided in
ss.2.5(iv)(c) or ss.2A.9.
ss.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 or to participate in the issuance, extension or renewal of
such Letter of Credit or, in the reasonable opinion of the Administrative Agent,
would make it illegal to issue, extend or renew such Letter of Credit.
ss.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.
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ss.12. EVENTS OF DEFAULT; ACCELERATION; ETC.
ss.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, the
Commitment Fee, the Facility Fee, any Letter of Credit Fee or any other sums due
hereunder or under any of the other Loan Documents (including, without
limitation, amounts due under ss.7.17) 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: ss.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); ss.7.6 (as to the legal existence of
MCRLP for which no period to cure is granted); ss.7.7 (as to the legal existence
and REIT status of MCRC for which no period to cure is granted); ss.7.12;
ss.7.21 within ten (10) days of the occurrence of same; ss.7.22 within thirty
(30) days of any non-compliance; ss.8 (except with respect to ss.8.1(b), ss.8.5
for Non-Material Breaches only, or ss.8.6); or ss.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 ss.12) and such failure continues for thirty (30) days (other
than a Non-Material Breach (excluding ss.8.5 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 ss.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
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for 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 $5,000,000 (determined in accordance with ss. 9.9 hereof) or (y) in respect
of any Without Recourse obligations or credit in an aggregate amount in excess
of $50,000,000 (determined in accordance with ss. 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 $5,000,000 (determined in
accordance with ss. 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 $50,000,000 (determined in accordance with ss. 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
460
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 ss.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 ss.6.16 or ss.7.20 is a matter that constitutes a specific breach of a
provision of this ss.12.1(l), the breach of ss.6.16 or ss.7.20 shall not be a
Non-Material Breach.
(m) Notwithstanding the provisions of ss.8.4(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
461
the Securities and Exchange Commission under said Act) of 40% or more of the
outstanding shares of common 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 5 of the 7 Key Management Individuals (as defined in
ss.7.23) 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.
then, and in any such event, so long as the same may be continuing, the
Administrative Agent 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 and all Reimbursement
Obligations 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 ss.12.1(g) or
ss.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 ss.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.
ss.12.2. Termination of Commitments. If any one or more Events of Default
specified in ss.12.1(g) or ss.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 and the Administrative
Agent and any Fronting Bank shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. 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 ss.12.1, the Administrative
Agent 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, the Administrative Agent and any Fronting Bank shall be relieved
of all further obligations to issue, extend or renew Letters of Credit. No such
termination of the credit
462
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.
ss.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 ss.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 or
purchaser of any Letter of Credit Participation 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.
ss.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, or Reimbursement Obligations owed to, 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, and Reimbursement Obligations owed
to, 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,
463
as shall result in each Lender receiving in respect of the Notes held by it or
Reimbursement Obligations owed 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.
ss.14. THE ADMINISTRATIVE AGENT.
ss.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.
The Administrative Agent and the Fronting Bank shall be fully justified in
failing or refusing to take any action under ss.3 hereof unless it shall first
have received such advice or concurrence of the Majority Lenders as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
(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 by a writing signed by
Required Lenders, which successor shall be reasonably acceptable to the Borrower
so long as no Default or Event of Default has occurred and is continuing.
ss.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
464
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.
ss.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 may be liable for losses due to its willful misconduct or gross
negligence.
ss.14.4. No Representations. Neither the Administrative Agent nor the
Syndication Agent shall be responsible for the execution or validity or
enforceability of this Agreement, the Notes, the Letters of Credit, 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. Neither the Administrative Agent nor the
Syndication Agent shall 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. Neither the Administrative Agent nor the Syndication Agent has 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 credit
worthiness 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, the Syndication 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.
465
ss.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 to
purchase any Letter of Credit Participation or (ii) to comply with the
provisions of ss.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 ss.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.
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ss.14.6. Holders of Notes. The Administrative Agent may deem and treat the
payee of any Notes or the purchaser of any Letter of Credit Participation 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.
ss.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 ss.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 willful misconduct or
gross negligence.
ss.14.8. Administrative Agent as Lender. In its individual capacity as a
Lender, Chase 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 and as the purchaser of any Letter of Credit
Participations, as it would have were it not also the Administrative Agent.
ss.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 ss.14.9 it shall
promptly notify the other Lenders of the existence of such default, Default or
Event of Default.
ss.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 ss.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
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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.
ss.14.11. Successor Administrative Agent. Chase, 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 or in the event
that the Administrative Agent ceases to hold a Commitment of at least
$20,000,000 or a Commitment Percentage of at least five percent (5%) under this
Agreement. Any such resignation or removal shall be effective upon appointment
and acceptance of a successor Administrative Agent, as hereinafter provided.
Upon 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. Upon
the resignation of Chase as the Administrative Agent, the Borrower may elect the
Syndication Agent to become the successor Administrative Agent for all purposes
under this Agreement and the other Loan Documents. 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 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 ss.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.
ss.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.
468
ss.15. EXPENSES. The Borrower agrees to pay (a) the reasonable costs of
incurred by Chase and Fleet and the Arrangers 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
both the Administrative Agent and the Syndication Agent, one local counsel to
the Administrative Agent and the Syndication Agent 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 and the
Syndication Agent incurred by the Administrative Agent and the Syndication Agent
in connection with the preparation, administration or interpretation of the Loan
Documents (including those relating to the Competitive Bid Loans) 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 and the Syndication Agent in preparing
the documentation, (d) the reasonable fees, costs, expenses and disbursements of
the Arrangers and their 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 or the Syndication Agnt, and the fees and
costs of appraisers, engineers, investment bankers, surveyors or other experts
retained by any Lender or the Administrative Agent or the Syndication Agent in
connection with any such enforcement, preservation proceedings or dispute)
incurred by any Lender or the Administrative Agent or the Syndication 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 ss.15 shall survive payment or satisfaction of
payment of amounts owing with respect to the Notes.
ss.16. INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless
the Administrative Agent, the Syndication Agent, the Arrangers and each of the
Lenders and the shareholders, directors, agents, officers, subsidiaries and
affiliates of the Administrative
469
Agent, the Syndication Agent, the Arrangers 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 ss.7.17 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 ss.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 Syndication Agent, the Arrangers 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
Syndication Agent, the Arrangers 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
Syndication Agent, the Arrangers 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 ss.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 ss.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.
ss.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, the
Administrative Agent and the Syndication 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 and the issuance, extension or renewal
of any Letters of Credit, as herein contemplated, and shall continue in full
force and effect so long as any Letter of Credit or 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 or the Administrative Agent or
any Fronting Bank has any obligation to issue, extend or renew any Letter of
Credit. The indemnification obligations of
470
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 or the Syndication 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.
ss.18. ASSIGNMENT; PARTICIPATIONS; ETC.
ss.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, the Competitive Bid Loan
Accounts maintained by it and its participating interest in the risk relating to
any Letters of Credit); provided that (a) the Administrative Agent and, unless
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) each such assignment shall be in a minimum
amount of $15,000,000 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
$15,000,000 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 ss.18.3, be released from its obligations
under this Agreement.
ss.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,
471
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 ss.6.4 and ss.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; (h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Assumption; and (i) such assignee
acknowledges that it has made arrangements with the assigning Lender
satisfactory to such assignee with respect to its pro rata share of Letter of
Credit Fees in respect of outstanding Letters of Credit.
ss.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 ss.4.12, the assigning Lender agrees to pay
to the Administrative Agent a registration fee in the sum of $2,500.
ss.18.4. New Revolving Credit 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
472
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
ss.10.8 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.
ss.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; provided that (a)
each such participation shall be in an amount of not less than $15,000,000, (b)
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, (c) 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 (d) 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.
ss.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 all or
any portion of its interest and rights under this Agreement (including all or
any portion of its Notes) to any of the twelve Federal Reserve Banks organized
under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341. No such pledge or the
enforcement thereof shall release the pledgor Lender from its obligations
hereunder or under any of the other Loan Documents.
ss.18.7. No Assignment by Borrower. The Borrower shall not assign or
transfer any of its rights or obligations under any of the Loan Documents
without prior Unanimous Lender Approval.
473
ss.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 ss.7.10 hereof.
ss.18.9. Syndication. The Borrower acknowledges that the Administrative
Agent and the Syndication Agent intend, and shall have the right, by themselves
or through their Affiliates, to syndicate or enter into co-lending arrangements
with respect to the Loans and the Total Commitment pursuant to this ss.18, and
the Borrower agrees to reasonably cooperate with the Administrative Agent's, the
Syndication Agent's and their Affiliates' syndication and/or co-lending efforts,
such cooperation to include, without limitation, the provision of information
reasonably requested by potential syndicate members.
ss.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 or any Letter of Credit Applications
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 the Borrower at
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
Attention: Xx. Xxxxx X. Xxxxxx, Executive Vice President and General Counsel and
Xx. Xxxxx Xxxxxxxxx, Executive Vice President and Chief Financial Officer, with
a copy to Xxxxxx X. Xxxxxx, Esq., Pryor, Cashman, Xxxxxxx & Xxxxx, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, 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, at The Chase Manhattan Bank, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxxx, Vice
President, or such other address for notice as the Administrative Agent shall
have last furnished in writing to the Borrower, with a copy to Xxxx X. Xxxxxx,
Esq., Xxxxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, 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
474
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.
ss.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 XXX XXXXXX XX XXX XXXXX XX XXX XXXX 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 INss.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.
ss.21. HEADINGS. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
ss.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.
ss.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. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except as provided in ss.25.
ss.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 REVOLVING CREDIT NOTES OR ANY OF THE OTHER
475
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.
ss.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 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 permits any prepayment not
otherwise permitted 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) or any fees payable hereunder; or
476
(iv) changes the amount of any Lender's Commitment (other than
pursuant to an assignment permitted under ss.18.1 hereof) or
increases the amount of the Total Commitment, except as provided in
ss.2.2; or
(v) amends any of the covenants contained inss.ss.9.1, 9.3,
9.4, 9.6 or 9.7 hereof; or
(vi) releases or reduces the liability of any Guarantor
pursuant to its Guaranty other than as provided in ss.5; or
(vii) modifies this ss.25 or any other provision herein or in
any other Loan Document which by the terms thereof expressly
requires Unanimous Lender Approval; or
(viii) amends any of the provisions governing funding
contained in ss.2 hereof; or
(ix) changes the rights, duties or obligations of the
Administrative Agent specified in ss.14 hereof (provided that no
amendment or modification to such ss.14 or to the fee payable to the
Arrangers or the Administrative Agent under this Agreement may be
made without the prior written consent of the Arrangers or the
Administrative Agent affected thereby); or
(x) changes the definitions of Required Lenders, Majority
Lenders or Unanimous Lender Approval.
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.
ss.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.
477
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
XXXX-XXXX REALTY, L.P.
By: Xxxx-Xxxx Realty Corporation, its general
partner
By:
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
478
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent
By:
------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
479
FLEET NATIONAL BANK, individually and as
Syndication Agent
By:
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
480
BANKERS TRUST
By:
------------------------------------------
Name:
Title:
000
XXXX XX XXXXXXXX
By:
------------------------------------------
Name:
Title:
000
XXXX XX XXX XXXX
By:
------------------------------------------
Name:
Title:
483
BAYERISCHE LANDESBANK GIROZANTRALE
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
484
CITIZENS BANK
By:
------------------------------------------
Name:
Title:
485
COMERICA BANK
By:
------------------------------------------
Name:
Title:
000
XXXXXXXXXXX XXXXXXXXXXXXXXXXXX, XXX
XXXX BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
487
CREDITANSTALT CORPORATE FINANCE, INC.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
488
CRESTAR BANK
By:
------------------------------------------
Name:
Title:
000
XX XXXX XXXXXXXX XXXXXXXXXXXXXXXXXXX,
XXX XXXX BRANCH
By:
------------------------------------------
Name:
Title:
000
XXXXXXXX XXXX XX, XXX XXXX BRANCH AND
GRAND CAYMAN BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
491
EUROPEAN AMERICAN BANK
By:
------------------------------------------
Name:
Title:
492
ERSTE BANK
By:
------------------------------------------
Name:
Title:
000
XXXXX XXXXXXXX XXXX XX XXXXXXX
By:
------------------------------------------
Name:
Title:
494
FIRST UNION NATIONAL BANK
By:
------------------------------------------
Name:
Title:
495
HYPOBANK
By:
------------------------------------------
Name:
Title:
496
KEY BANK
By:
------------------------------------------
Name:
Title:
497
KREDIETBANK, N.V.
By:
------------------------------------------
Name:
Title:
498
MELLON BANK, N.A.
By:
------------------------------------------
Name:
Title:
499
NATIONSBANK
By:
------------------------------------------
Name:
Title:
500
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------------------------
Name:
Title:
501
SOCIETE GENERALE
By:
------------------------------------------
Name:
Title:
502
SUMMIT BANK
By:
------------------------------------------
Name:
Title:
503
THE TOKAI BANK LIMITED
By:
------------------------------------------
Name:
Title:
504
US TRUST
By:
------------------------------------------
Name:
Title:
505
