EXHIBIT 10.1
Execution Copy
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
among
XXXX-XXXX REALTY, L.P.
And
JPMORGAN CHASE BANK,
FLEET NATIONAL BANK
and
OTHER LENDERS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
with
JPMORGAN CHASE BANK
AS ADMINISTRATIVE AGENT, SWING LENDER AND FRONTING BANK
FLEET NATIONAL BANK
and
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
AS SYNDICATION AGENTS,
BANK OF AMERICA, N.A.
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
AS DOCUMENTATION AGENTS
and
X.X. XXXXXX SECURITIES INC.
and FLEET SECURITIES, INC.
AS ARRANGERS,
Dated as of September 27, 2002
TABLE OF CONTENTS
Section Page
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Section 1. DEFINITIONS AND RULES OF INTERPRETATION .............................................. 2
Section 1.1. Definitions ........................................................... 2
Section 1.2. Rules of Interpretation ............................................... 28
Section 2. THE CREDIT FACILITY .................................................................. 29
Section 2.1. Commitment to Lend .................................................... 29
Section 2.2. Increase of Total Commitment .......................................... 32
Section 2.3. The Notes ............................................................. 33
Section 2.4. Interest on Revolving Credit Loans and Swing Loans; Fees .............. 34
Section 2.5. Requests for Revolving Credit Loans and Swing Loans ................... 36
Section 2.6. Conversion Options .................................................... 38
Section 2.7. Funds for Revolving Credit Loans and Swing Loans ...................... 39
Section 2.8. Repayment of the Revolving Credit Loans and Swing Loans at Maturity ... 40
Section 2.9. Optional Repayments of Revolving Credit Loans and Swing Loans ......... 41
Section 2.10. Reduction of Total Commitment ......................................... 41
Section 2A. COMPETITIVE BID LOANS. ............................................................... 42
Section 2A.1. The Competitive Bid Option. ........................................... 42
Section 2A.2. Competitive Bid Loan Accounts: Competitive Bid Notes. ................. 42
Section 2A.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes. . 43
Section 2A.4. Alternative Manner of Procedure. ...................................... 44
Section 2A.5. Submission and Contents of Competitive Bid Quotes. .................... 44
Section 2A.6. Notice to Borrower. ................................................... 46
Section 2A.7. Acceptance and Notice by Borrower and Administrative Agent. ........... 46
Section 2A.8. Allocation by Administrative Agent. ................................... 47
Section 2A.9. Funding of Competitive Bid Loans. ..................................... 47
Section 2A.10. Funding Losses. ....................................................... 48
Section 2A.11. Repayment of Competitive Bid Loans; Interest. ......................... 48
Section 2A.12. Optional Repayment of Competitive Bid Loans. .......................... 48
(ii)
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Section 3. LETTERS OF CREDIT ....................................................................48
Section 3.1. Letter of Credit Commitments ..........................................49
Section 3.2. Reimbursement Obligation of the Borrower ..............................50
Section 3.3. Letter of Credit Payments; Funding of a Loan ..........................50
Section 3.4. Obligations Absolute ..................................................51
Section 3.5. Reliance by Issuer ....................................................52
Section 3.6. Letter of Credit Fee ..................................................52
Section 3.7. Existing Letters of Credit ............................................53
Section 4. CERTAIN GENERAL PROVISIONS ...........................................................53
Section 4.1. Funds for Payments ....................................................53
Section 4.2. Computations ..........................................................53
Section 4.3. Inability to Determine LIBOR Rate .....................................54
Section 4.4. Illegality ............................................................54
Section 4.5. Additional Costs, Etc. ................................................55
Section 4.6. Capital Adequacy ......................................................56
Section 4.7. Certificate ...........................................................57
Section 4.8. Indemnity .............................................................57
Section 4.9. Interest on Overdue Amounts ...........................................57
Section 4.10. [Intentionally Omitted] ...............................................58
Section 4.11 Reasonable Efforts to Mitigate ........................................58
Section 4.12 Replacement of Lenders ................................................58
Section 5. GUARANTIES ...........................................................................59
Section 5.1. Guaranties ............................................................59
Section 5.2. Subsidiary Guaranty Proceeds ..........................................59
Section 6. REPRESENTATIONS AND WARRANTIES .......................................................60
Section 6.1. Authority; Etc. .......................................................61
Section 6.2. Governmental Approvals ................................................64
Section 6.3. Title to Properties; Leases ...........................................64
Section 6.4. Financial Statements ..................................................65
Section 6.5. Fiscal Year ...........................................................65
Section 6.6. Franchises, Patents, Copyrights, Etc. .................................65
Section 6.7. Litigation ............................................................65
Section 6.8. No Materially Adverse Contracts, Etc. .................................66
Section 6.9. Compliance With Other Instruments, Laws, Etc. .........................66
Section 6.10. Tax Status ............................................................66
Section 6.11. No Event of Default; No Materially Adverse Changes ....................67
Section 6.12. Investment Company Acts ...............................................67
(iii)
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Section 6.13. Absence of UCC Financing Statements, Etc. .............................67
Section 6.14. Absence of Liens. .....................................................68
Section 6.15. Certain Transactions ..................................................68
Section 6.16. Employee Benefit Plans ................................................68
Section 6.17. Regulations U and X ...................................................70
Section 6.18. Environmental Compliance ..............................................70
Section 6.19. Subsidiaries ..........................................................72
Section 6.20. Loan Documents ........................................................72
Section 6.21. REIT Status ...........................................................72
Section 6.22. Subsequent Guarantors .................................................72
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS .............................72
Section 7.1. Punctual Payment ......................................................72
Section 7.2. Maintenance of Office .................................................73
Section 7.3. Records and Accounts ..................................................73
Section 7.4. Financial Statements, Certificates and Information ....................73
Section 7.5. Notices ...............................................................76
Section 7.6. Existence of Borrower and Subsidiary Guarantors; Maintenance
of Properties .........................................................78
Section 7.7. Existence of MCRC; Maintenance of REIT Status of MCRC; Maintenance of
Properties ............................................................79
Section 7.8. Insurance .............................................................80
Section 7.9. Taxes .................................................................80
Section 7.10. Inspection of Properties and Books ....................................81
Section 7.11. Compliance with Laws, Contracts, Licenses, and Permit .................81
Section 7.12. Use of Proceeds .......................................................82
Section 7.13. Acquisition of Unencumbered Properties ................................82
Section 7.14. Additional Guarantors; Solvency of Guarantors .........................82
Section 7.15. Further Assurances ....................................................82
Section 7.16. [Intentionally Omitted] ...............................................83
Section 7.17. Environmental Indemnification .........................................83
Section 7.18. Response Actions ......................................................84
Section 7.19. Environmental Assessments .............................................84
Section 7.20. Employee Benefit Plans ................................................84
Section 7.21. No Amendments to Certain Documents ....................................85
Section 7.22. [Intentionally Omitted] ...............................................85
Section 7.23. Management ............................................................85
Section 7.24 Distributions in the Ordinary Course ..................................85
(iv)
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Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS ........................ 86
Section 8.1. Restrictions on Indebtedness .......................................... 86
Section 8.2. Restrictions on Liens, Etc. ........................................... 86
Section 8.3. [Intentionally Omitted] ............................................... 88
Section 8.4. Merger, Consolidation and Disposition of Assets ....................... 88
Section 8.5. Negative Pledge ....................................................... 91
Section 8.6. Compliance with Environmental Laws .................................... 92
Section 8.7. Distributions ......................................................... 92
Section 8.8. Employee Benefit Plans ................................................ 93
Section 8.9. Fiscal Year ........................................................... 94
Section 9. FINANCIAL COVENANTS OF THE BORROWER .................................................. 94
Section 9.1. Leverage Ratio ........................................................ 94
Section 9.2. Secured Indebtedness .................................................. 94
Section 9.3. Tangible Net Worth .................................................... 94
Section 9.4. Debt Service Coverage ................................................. 94
Section 9.5. Fixed Charge Coverage ................................................. 94
Section 9.6. Unsecured Indebtedness ................................................ 95
Section 9.7. Unencumbered Property Debt Service Coverage ........................... 95
Section 9.8. Investment Limitation ................................................. 95
Section 9.9. Covenant Calculations ................................................. 96
Section 10 CONDITIONS TO THE CLOSING DATE ....................................................... 98
Section 10.1. Loan Documents ........................................................ 98
Section 10.2. Certified Copies of Organization Documents ............................ 98
Section 10.3. By-laws; Resolutions .................................................. 99
Section 10.4. Incumbency Certificate; Authorized Signers ............................ 99
Section 10.5. Title Policies. ....................................................... 99
Section 10.6. Certificates of Insurance ............................................. 99
Section 10.7. Hazardous Waste Assessments ...........................................100
Section 10.8. Opinion of Counsel Concerning Organization and Loan Documents .........100
Section 10.9. Tax Law Compliance ....................................................100
Section 10.10. Guaranties ............................................................100
Section 10.11. Certifications from Government Officials; UCC-11 Reports ..............101
Section 10.12. Proceedings and Documents .............................................101
Section 10.13. Fees ..................................................................101
(v)
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Section 10.14. Closing Certificate; Compliance Certificate ...........................101
Section 10.15. Subsequent Guarantors .................................................101
Section 10.16 No Default Under Original Agreement ...................................102
Section 11. CONDITIONS TO ALL BORROWINGS .........................................................102
Section 11.1 Representations True; No Event of Default; Compliance Certificate .....102
Section 11.2 No Legal Impediment ...................................................102
Section 11.3 Governmental Regulation ...............................................102
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC. ................................................102
Section 12.1. Events of Default and Acceleration ....................................102
Section 12.2. Termination of Commitments ............................................107
Section 12.3. Remedies ..............................................................107
Section 13. SETOFF ...............................................................................107
Section 14. THE ADMINISTRATIVE AGENT .............................................................108
Section 14.1. Authorization .........................................................108
Section 14.2. Employees and Agents ..................................................109
Section 14.3. No Liability ..........................................................109
Section 14.4. No Representations ....................................................110
Section 14.5. Payments ..............................................................110
Section 14.6. Holders of Notes ......................................................111
Section 14.7. Indemnity .............................................................111
Section 14.8. Administrative Agent as Lender ........................................112
Section 14.9. Notification of Defaults and Events of Default ........................112
Section 14.10. Duties in the Case of Enforcement .....................................112
Section 14.11. Successor Administrative Agent ........................................112
Section 14.12. Notices ...............................................................113
Section 15. EXPENSES .............................................................................113
Section 16. INDEMNIFICATION ......................................................................115
Section 17. SURVIVAL OF COVENANTS, ETC............................................................116
(vi)
Section Page
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Section 18. ASSIGNMENT; PARTICIPATIONS; ETC.......................................................116
Section 18.1. Conditions to Assignments by Lenders ..................................116
Section 18.2. Certain Representations and Warranties; Limitations; Covenants ........117
Section 18.3. Register ..............................................................118
Section 18.4. New Notes .............................................................118
Section 18.5. Participations ........................................................119
Section 18.6. Pledge by Lender ......................................................119
Section 18.7. No Assignment by Borrower .............................................119
Section 18.8 Disclosure ............................................................119
Section 18.9. Syndication ...........................................................119
Section 18.10. Designated Banks ......................................................120
Section 19. NOTICES, ETC..........................................................................121
Section 20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE ...................................121
Section 21. HEADINGS .............................................................................122
Section 22. COUNTERPARTS .........................................................................122
Section 23. ENTIRE AGREEMENT, ETC.................................................................122
Section 24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS .......................................122
Section 25. CONSENTS, AMENDMENTS, WAIVERS, ETC....................................................123
Section 26. SEVERABILITY .........................................................................124
Section 27. TRANSITIONAL ARRANGEMENTS ............................................................125
Section 27.1. Original Agreement Superseded .........................................125
Section 27.2. Return and Cancellation of Notes ......................................125
Section 27.3. Interest and Fees Under Original Agreement ............................125
(vii)
EXHIBITS
A Form of Revolving Credit Note/Swing Loan Note
B Form of Subsidiary Guaranty
C Form of Revolving Credit Loan/Swing Loan/Letter of Credit Request
D Form of Compliance Certificate
E Form of Closing Certificate
F Form of Assignment and Assumption Agreement
G Form of Competitive Bid Note
H Form of Competitive Bid Quote Request
I Form of Invitation for Competitive Bid Quotes
J Form of Competitive Bid Quote
K Form of Notice of Acceptance or Non-acceptance
L Form of Notice of Continuation/Conversion
M Form of Designated Bank Note
N Form of Designation Agreement
(viii)
SCHEDULES
SCHEDULE EMPL List of Employee Agreements with Key Management Individuals
SCHEDULE EG List of Eligible Ground Leases as of Closing Date
SCHEDULE SG List of Subsidiary Guarantors
SCHEDULE 1.2 Lenders' Commitments
SCHEDULE 3.7 Existing Letters of Credit
SCHEDULE 6.1(b) Capitalization; Outstanding Securities, Etc.
SCHEDULE 6.3 Partially Owned Real Estate Holding Entities
SCHEDULE 6.7 Litigation
SCHEDULE 6.15 Certain Transactions
SCHEDULE 6.19 Subsidiaries
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is
made as of the 27th day of September, 2002, 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, JPMORGAN
CHASE BANK ("JPMORGAN"), 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 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and the other lending institutions party
hereto or which may become parties hereto pursuant to Section 18 (individually,
a "LENDER" and collectively, the "LENDERS") and JPMORGAN CHASE BANK, as the
swing lender, fronting bank and administrative agent for itself and each other
Lender, and FLEET NATIONAL BANK and COMMERZBANK AG, NEW YORK AND CAYMAN ISLANDS
BRANCHES, as the syndication agents.
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 79% 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.
D. The Borrower, certain of the Lenders, certain other lending
institutions, and the Administrative Agent are parties to a
Revolving Credit
Agreement dated as of April 16, 1998, as amended by Amendment No. 1 to
Revolving
Credit Agreement dated as of July 20, 1998, as further amended by Amendment No.
2 to
Revolving Credit Agreement dated as of December 30, 1998, as further
amended and restated by Amendment No. 3 to and Restatement of
Revolving Credit
Agreement dated as of June 22, 2000 (as so amended and restated, the "ORIGINAL
AGREEMENT").
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E. The Borrower, the Lenders and the Administrative Agent wish to amend
and restate the Original Agreement in its entirety as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
ABSOLUTE COMPETITIVE BID LOAN. See Section 2A.3(a).
ACCOUNTANTS. In each case, nationally-recognized, independent certified
public accountants reasonably acceptable to the Administrative Agent. The
Lenders hereby acknowledge that PricewaterhouseCoopers LLP and the other major
national accounting firms are acceptable accountants.
ADJUSTED UNENCUMBERED PROPERTY NOI. With respect to any fiscal period for
any Unencumbered Property, the net income of such Unencumbered Property during
such period, as determined in accordance with GAAP, before adjustment for (a)
gains (or losses) from debt restructurings or extraordinary items relating to
such Unencumbered Property, (b) minority interests, not inconsistent with the
wholly-owned Subsidiary requirements for Unencumbered Properties and (c) income
taxes; PLUS (x) interest expense relating to such Unencumbered Property and (y)
depreciation and amortization relating to such Unencumbered Property and (z) the
noncash portion of executive stock award rights and stock purchase rights
relating to the Unencumbered Property in question included in written executive
employment agreements, written employee plans or other written non-monetary
employment compensation provisions to the extent excluded from net income, as
determined in accordance with GAAP; MINUS a recurring capital expense reserve
equal to one and one-half percent (1.5%) of total revenue (excluding interest
income) of such Unencumbered Property for such period, after adjustments to
eliminate the effect of the straight-lining of rents affecting such Unencumbered
Property.
ADMINISTRATIVE AGENT. JPMorgan acting as administrative agent for the
Lenders, or any successor administrative agent, as permitted by Section 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
-3-
to Section 19 hereof, or the office of any successor Administrative Agent
permitted under Section 14 hereof.
ADMINISTRATIVE FEE. See Section 2.4(g).
ADVISORY AND STRUCTURING FEE. See Section 2.4(d).
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 Amended and Restated
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 the Administrative Agent at its head office in
New York, New York as its "prime rate" or (b) one half of one percent (1/2%)
above the overnight federal funds effective rate as published by the Board of
Governors of the Federal Reserve System, as in effect from time to time. Any
change in the Alternate Base Rate during an Interest Period shall result in a
corresponding change on the same day in the rate of interest accruing from and
after such day on the unpaid balance of principal of the Alternate Base Rate
Loans, if any, or of the Swing Loans, if any, applicable to such Interest
Period, effective on the day of such change in the Alternate Base Rate.
ALTERNATE BASE RATE LOANS. Those Revolving Credit Loans bearing interest
calculated by reference to the Alternate Base Rate, including a Loan converted
from a Swing Loan in accordance with Section 2.1(b)(ii).
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
-4-
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 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 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.
The applicable debt ratings and the Applicable Margins are set forth in the
following table:
APPLICABLE APPLICABLE
MARGIN MARGIN
FOR REVOLVING FOR ALTERNATE
S&P RATING XXXXX'X RATING THIRD RATING CREDIT LIBOR BASE RATE LOANS
RATE LOANS
------------------ ------------------ ------------------------ --------------- -----------------
No rating or less
No rating or less No rating or less than BBB-/Baa3 1.20% 0%
than BBB- than Baa3 equivalent
BBB- Baa3 BBB-/Baa3 equivalent 0.95% 0%
BBB Baa2 BBB/Baa2 equivalent 0.70% 0%
BBB+ Baa1 BBB+/Baa1 equivalent 0.65% 0%
A- or higher A3 or higher A-/A3 equivalent 0.60% 0%
or higher
ARRANGERS. X.X. Xxxxxx Securities Inc. and Fleet Securities, Inc.
-5-
ASSIGNMENT AND ASSUMPTION. See Section 18.1.
BORROWER. As defined in the preamble hereto.
BUILDING. Individually and collectively, the buildings, structures and
improvements now or hereafter located on the Real Estate.
BUSINESS DAY. Any day on which banking institutions in New York, New York
are open for the transaction of banking business and, in the case of LIBOR Rate
Loans, also a day which is a LIBOR Business Day.
CAPITALIZED LEASES. Leases under which the Borrower or any of its
Subsidiaries or any Partially-Owned Entity is the lessee or obligor, the
discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
GAAP.
CAPITALIZED UNENCUMBERED PROPERTY NOI. As of any date of determination with
respect to an Unencumbered Property, 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 Section 6.18.
CLOSING DATE. September 27, 2002, which is the date on which all of the
conditions set forth in Section 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 and Refunded Swing Loans to, and to participate in the
issuance, extension and renewal of Letters of Credit for the account of, the
Borrower.
COMMITMENT PERCENTAGE. With respect to each Lender, the percentage set
forth on SCHEDULE 1.2 hereto as such Lender's percentage of the Total Commitment
and any changes thereto from time to time.
COMPETITIVE BID LOAN ACCOUNTS. See Section 2A.2(a).
-6-
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 Section 2A hereof.
COMPETITIVE BID MARGIN. See Section 2A.5(b)(iv).
COMPETITIVE BID NOTES. See Section 2A.2(b).
COMPETITIVE BID QUOTE. An offer by a Lender to make a Competitive Bid Loan
in accordance with Section 2A.5 hereof.
COMPETITIVE BID QUOTE REQUEST. See Section 2A.3.
COMPETITIVE BID RATE. See Section 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 Section
2.5.
COMPLETED SWING LOAN REQUEST. A loan request accompanied by all information
required to be supplied under the applicable provisions of Section 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 and their successors (as such
agreements, plans and provisions may be amended from time to time) in an amount
not to exceed $20,000,000 in the aggregate during any fiscal year; MINUS a
recurring capital expense reserve in
-7-
an amount equal to one and one-half percent (1.5%) of consolidated total revenue
(excluding interest income) of MCRC, the Borrower and their respective
Subsidiaries; all after adjustments to eliminate the effect of the
straight-lining of rents; and all after adjustments for unconsolidated
partnerships, joint ventures and other entities.
CONSOLIDATED CAPITALIZED NOI. As of any date of determination, an amount
equal to Revised Consolidated Adjusted Net Income for the most recent two (2)
completed fiscal quarters MULTIPLIED BY two (2), with the product being DIVIDED
BY 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 Total Capitalization MINUS Consolidated Total Liabilities.
CONSOLIDATED TOTAL CAPITALIZATION. As of any date of determination, with
respect to MCRC, the Borrower and their respective Subsidiaries determined on a
consolidated basis in accordance with GAAP; the sum (without double-counting) of
(a) Consolidated Capitalized NOI PLUS (b) the value of Unrestricted Cash and
Cash Equivalents (excluding until forfeited or otherwise entitled to be retained
by the Borrower or its Subsidiaries, tenant security and other restricted
deposits), PLUS (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 and not then more
than 90 days past due or declared by the Borrower or its Subsidiary to be past
due), PLUS (e) the actual net cash investment by the Borrower and its
Subsidiaries in any Opportunity Funds (wherein such Opportunity Fund (x) does
not have any Indebtedness that is then more than 90 days past due or (y) has not
been declared to be in default of any monetary or material monetizable
obligations), PLUS (f) the book value of Unimproved Non-Income Producing Land
PLUS (g) the value of Eligible Cash 1031 Proceeds; PROVIDED that the value of
all permitted investments included within Consolidated Total Capitalization
(other
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than Eligible Cash 1031 Proceeds) shall not exceed the limitations set forth in
Section 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.
CONSOLIDATED TOTAL LIABILITIES. As of any date of determination, without
double-counting, all liabilities of MCRC, the Borrower and their respective
Subsidiaries, including guaranties of payment for any Opportunity Fund,
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 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
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actively pursuing construction, renovation, or expansion of Buildings and,
except for purposes of the covenant set forth in Section 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 Section 2.6.
CREDIT PARTIES. Collectively, the Borrower, the Operating Subsidiaries,
MCRC, the Subsidiary Guarantors and any other wholly-owned Subsidiary for which
the Borrower or MCRC has legal liability for such wholly-owned Subsidiary's
obligations and liabilities, directly or indirectly.
DEBT RATINGS. Long-term, unsecured, non-credit enhanced debt ratings.
DEFAULT. As of the relevant time of determination, an event or occurrence
which solely with the giving of notice or the lapse of time, or both, would
constitute an Event of Default.
DESIGNATED BANK. A special purpose entity that (i) shall have become a
party to this Agreement pursuant to Section 18.10, and (ii) is not otherwise a
Lender.
DESIGNATED BANK NOTES. Promissory notes of the Borrower, substantially in
the form of EXHIBIT M hereto, evidencing the obligation of the Borrower to repay
Competitive Loans made by Designated Banks, as the same may be amended,
supplemented, modified or restated from time to time, and "Designated Bank Note"
means any one of such promissory notes issued under Section 18.10.
DESIGNATING LENDER. See Section 18.10.
DESIGNATION AGREEMENT. A designation agreement in substantially the form of
EXHIBIT N attached hereto, entered into by a Lender and a Designated Bank and
accepted by the Agent.
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
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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.
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; and
(ii) with respect to MCRC, the declaration or payment of any cash
dividend on or in respect of any shares of any class of capital stock of
MCRC.
DOLLARS or $. Dollars in lawful currency of the United States of America.
DRAWDOWN DATE. The date on which any Revolving Credit Loan or Swing Loan is
made or is to be made, and the date on which any Revolving Credit Loan is
converted or continued in accordance with Section 2.6.
ELIGIBLE ASSIGNEE. Any of (a) a commercial bank organized under the laws of
the United States, or any State thereof or the District of Columbia, and having
total assets in excess of $1,000,000,000; (b) a savings and loan association or
savings bank organized under the laws of the United States, or any State thereof
or the District of Columbia, and having total assets in excess of
$1,000,000,000, calculated in accordance with GAAP; (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000, PROVIDED that such bank is acting at all times with respect to
this Agreement through a branch or agency located in the United States of
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America, (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 and (e) a Lender Affiliate.
ELIGIBLE CASH 1031 PROCEEDS. The cash proceeds held by a "qualified
intermediary" from the sale of Real Estate, which proceeds are intended to be
used by the qualified intermediary to acquire one or more "replacement
properties" that are of "like-kind" to such Real Estate in an exchange that
qualifies as a tax-free exchange under Section 1031 of the Code, and no portion
of which proceeds MCRC, the Borrower or any Subsidiary has the right to receive,
pledge, borrow or otherwise obtain the benefits of until such time as provided
under the applicable "exchange agreement" (as such terms in quotations are
defined in Treasury Regulations Section 1.1031(k)-1(g)(4)) (the "REGULATIONS"))
or until such exchange is terminated. Upon the cash proceeds no longer being
held by the qualified intermediary pursuant to the Regulations or otherwise
qualifying under the Regulations for like-kind exchange treatment, such proceeds
shall cease being Eligible Cash 1031 Proceeds.
ELIGIBLE GROUND LEASE. A ground lease that (a) has a minimum remaining term
of thirty (30) years, including tenant controlled options, as of any date of
determination, (b) has customary notice rights, default cure rights, bankruptcy
new lease rights and other customary provisions for the benefit of a leasehold
mortgagee or has equivalent protection for a leasehold permanent mortgagee by a
subordination to such leasehold permanent mortgagee of the landlord's fee
interest, and (c) is otherwise acceptable for Without Recourse leasehold
mortgage financing (with the exception permitted under clause (b) above) under
customary prudent lending requirements. The Eligible Ground Leases as of the
date of this Agreement are listed on SCHEDULE EG.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
ENVIRONMENTAL LAWS. See Section 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 Section 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the
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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 Section 12.1.
FACILITY FEE. See Section 2.4(f).
FEE LETTER. See Section 2.4(d).
FINANCIAL STATEMENT DATE. With respect to the Borrower, MCRC and their
respective subsidiaries, December 31, 2001.
FITCH. Fitch Ratings, a division of Fitch, Inc., and its successors.
FRONTING BANK. With respect to any letters of credit issued under this
Agreement on or after the date hereof, JPMorgan, or with the consent of the
Administrative Agent and the Borrower, another Lender.
FUNDS FROM OPERATIONS. As defined in accordance with resolutions adopted by
the Board of Governors of the National Association of Real Estate Investment
Trusts as in effect from time to time, but in any event excluding one-time or
non-recurring charges.
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 Section 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.
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GUARANTIES. Collectively, (i) the MCRC Guaranty, (ii) the Subsidiary
Guaranties, (iii) any other guaranty of the Obligations made by an Affiliate of
the Borrower in favor of the Administrative Agent and the Lenders, and (iv) the
ratification for purposes of this Agreement of all "Guaranties" under the
Original Agreement.
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
Section 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.
HAZARDOUS SUBSTANCES. See Section 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
Section 9.9) or any Synthetic Lease; (d) all guarantees for borrowed money,
endorsements and other contingent obligations, whether direct or indirect,
(without double counting and in accordance with Section 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
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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.
INTERCOMPANY SECURED DEBT. See Section 8.2(xii).
INTEREST PAYMENT DATE. (i) As to any Alternate Base Rate Loan and Swing
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 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 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), (iii) for any Absolute Competitive Bid Loan, a market
period not to extend beyond the Maturity Date, (iv) for any LIBOR Competitive
Bid Loan, 1, 2, 3, 6, 9 or 12 months, and (v) for any Swing Loan, the date on
which it is repaid or converted to an Alternate Base Rate Loan in accordance
with Section 2.1(b) of this Agreement; 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;
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(C) if the Borrower shall fail to give a Conversion Request as
provided in Section 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
(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
-16-
other agreement is at a market level rent and related tenant charges, which are
required to be paid monthly or, in the case of non-rent tenant charges, when
usually and customarily required to be paid by other tenants of the same Real
Estate (and at least annually).
LENDER AFFILIATE. With respect to any Lender, an Affiliate of such Lender.
LENDERS. Collectively, the Administrative Agent, any other lenders which
may provide additional commitments and become parties to this Agreement, and any
other Person who becomes an assignee of any rights of a Lender pursuant to
Section 18 or a Person who acquires all or substantially all of the stock or
assets of a Lender.
LETTER OF CREDIT. See Section 3.1.1.
LETTER OF CREDIT APPLICATION. See Section 3.1.1.
LETTER OF CREDIT FEE. See Section 3.6.
LETTER OF CREDIT PARTICIPATION. See Section 3.1.4.
LIBOR BREAKAGE COSTS. With respect to any LIBOR Rate Loan to be prepaid or
not drawn after elected, or converted prior to the last day of the applicable
Interest Period, a prepayment "breakage" fee in an amount determined by the
Administrative Agent in the following manner:
(i) First, the Administrative Agent shall determine the amount by
which (a) the total amount of interest which would have otherwise accrued
hereunder on each installment of principal prepaid or not so drawn, during
the period beginning on the date of such prepayment or failure to draw and
ending on the last day of the applicable LIBOR Rate Loan Interest Period
(the "REEMPLOYMENT PERIOD"), exceeds (b) the total amount of interest which
would accrue, during the Reemployment Period, on any readily marketable
bond or other obligation of the United States of America designated by the
Administrative Agent in its sole discretion at or about the time of such
payment, such bond or other obligation of the United States of America to
be in an amount equal (as nearly as may be) to the amount of principal so
paid or not drawn after elected and to have maturity at the end of the
Reemployment Period, and the interest to accrue thereon to take account of
amortization of any discount from par or accretion of premium above par at
which the same is selling at the time of designation. Each such amount is
hereinafter referred to as an "INSTALLMENT AMOUNT".
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(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 Section 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 1/100
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 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
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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 Section 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, Swing 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, Swing Loans or Letters of Credit are outstanding, the Majority
Lenders 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
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or financial condition of (i) the Borrower or (ii) MCRC or (iii) the Borrower,
the Guarantors and their respective Subsidiaries, taken as a whole, (b) has a
material adverse effect on the ability of the Borrower or any Guarantor to
perform its payment and other material obligations under any of the Loan
Documents, or (c) causes a material impairment of the validity or enforceability
of any of the Loan Documents or any material impairment of the rights, remedies
and benefits available to the Administrative Agent and the Lenders under any of
the Loan Documents.
MATURITY DATE. September 27, 2005, 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 sixty (60) days prior to the
Maturity Date, extend the Maturity Date for one (1) year, PROVIDED that no
Default or Event of Default shall have occurred and be continuing and that the
Borrower pay an aggregate extension fee equal to 0.25% of the Total Commitment
(to the Administrative Agent for the ratable benefit of the Lenders).
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 reaffirmed as of the date hereof made by MCRC
in favor of the Administrative Agent and the Lenders pursuant to which MCRC
guarantees to the Administrative Agent and the Lenders the unconditional payment
and performance of the Obligations.
MCRC ORGANIZATIONAL CHANGE. See Section 7.7.
MOODY'S. Xxxxx'x Investors Service, Inc., and its successors.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of Section
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 Section 6 or Section 7 (other than Section 7.1), (ii)
breach of any other representation or warranty or covenant as to which such term
"Non-Material Breach" is specifically applied, or (iii) Permitted Event; but
only to the extent any such breach under (i) or (ii) or an event under (iii)
(other than Section 7.1), neither (A) singularly or in conjunction with any
other existing breaches or events under (iii), materially adversely affect the
business, properties or financial condition of (x) MCRC; (y) MCRLP; or (z) the
Borrower, the Guarantors and their
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Subsidiaries, taken as whole nor (B) singularly or in conjunction with any other
existing breaches or events under (iii), materially adversely affect the ability
of (x) MCRC; (y) MCRLP; or (z) the Borrower, the Guarantors and their
Subsidiaries, taken as a whole, to fulfill the obligations to the Lenders under
the Loan Documents (including, without limitation, the repayment of all amounts
outstanding under the Loans, together with interest and charges thereon, when
first due) nor (C) has been identified in this Agreement specifically as a
matter that does not constitute a Non-Material Breach. During the continuance of
any Permitted Event, the Real Estate (including Unencumbered Property) and other
assets of any affected Guarantor shall be excluded from asset (but not
liability) and income (but not loss) calculation under Section 9 which
exclusions shall be evidenced in all compliance certificates provided as
required by this Agreement.
A breach or event which may constitute a Non-Material Breach shall be
identified when first known to the Borrower, any Guarantor or Subsidiary on the
next compliance certificate required to be delivered to the Lenders pursuant to
the terms of this Agreement; PROVIDED that the identification of such breach or
event as a Non-Material Breach by the Borrower, any Guarantor or any Subsidiary
shall not be binding on the Lenders.
NOTE RECORD. A Record with respect to the Notes.
NOTES. The Revolving Credit Notes and the Competitive Bid Notes, including
Designated Bank Notes. Also, if applicable, promissory notes of the Borrower
evidencing the obligation of the Borrower to repay Swing Loans.
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.
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OPPORTUNITY FUND. An investment made by the Borrower, any Guarantor or any
Subsidiary which has been or 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) subject to the next sentence, such investment is Without Recourse
to the Person making such investment and the liability of the Person making such
investment is limited solely (including in any insolvency proceeding affecting
such Person) to the amount so invested, (c) if the Person making such investment
exercises any management or control responsibilities, such management and/or
control shall be exercised through a so-called "bankruptcy-remote entity" and
(d) such investment complies with the requirements of Section 9.8(b) hereof.
Notwithstanding anything contained in the foregoing definition to the contrary,
an investment may still be an Opportunity Fund if it provides for (i) guaranties
of completion, (ii) guaranties of payment (which shall be included in
Consolidated Total Liabilities), (iii) environmental guaranties and indemnities,
and/or (iv) other typical recourse carve-outs from otherwise long-term,
non-recourse debt, such as for fraud, waste, misappropriation of proceeds and
material misrepresentations.
ORIGINAL AGREEMENT. As defined in the recitals.
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 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 Section 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 Section 12.1(f)(i)
cumulatively with any other then pending Permitted Event or other matter
affecting Section 12.1(f)(i). For purposes of a Permitted Event, the term
"bankruptcy" shall include all actions or proceedings described in Section
12.1(g) or Section 12.1(h). The Borrower may exercise the provisions of Section
12.1 (last paragraph) for Permitted Event(s) provided such exercise shall not
allow for a breach of the limitation on
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Permitted Events relating to Section 12.1(f)(i) or otherwise cause a Default or
Event of Default.
PERMITTED LIENS. Liens, security interests and other encumbrances permitted
by Section 8.2.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government (or any
governmental agency or political subdivision thereof).
PROJECT COSTS. With respect to Construction-In-Process, the actual project
cost of such Construction-In-Process shown on schedules submitted to the
Administrative Agent from time to time; PROVIDED that for
Construction-In-Process owned by any Partially-Owned Entity, the Project Cost of
such Construction-In-Process shall be the Borrower's or its subsidiaries'
pro-rata share of the actual project cost of such Construction-In-Process (based
on the greater of (x) the Borrower's or its subsidiaries' percentage equity
interest in such Partially-Owned Entity or (y) the Borrower's or its
subsidiaries' obligation to provide, or liability for providing, funds to such
Partially-Owned Entity).
PUBLIC DEBT. Unsecured Indebtedness, not subordinated to the Obligations
(or to the holders thereof), issued by the Borrower and which is either (a) in
offerings registered under the Securities Act of 1933, as amended, or in
transactions exempt from registration pursuant to rule 144A or Regulation B
thereunder or listed on non-U.S. securities exchanges or (b) pursuant to the
Indenture dated as of March 16, 1999 by and between the Borrower, MCRC and
Wilmington Trust Company, a Delaware banking corporation as trustee, or any
successor trustee or assignee thereof (collectively, the "TRUSTEE"), as
supplemented by Supplemental Indenture No. 1 dated as of the same date between
the Borrower and the Trustee, and by Supplemental Indenture No. 2 dated as of
August 2, 1999 between the Borrower and the Trustee, and by Supplemental
Indenture No. 3 dated as of December 21, 2000 between the Borrower and the
Trustee, and by Supplemental Indenture No. 4 dated as of January 29, 2001
between the Borrower and the Trustee, and as the Indenture may be further
supplemented and/or amended from time to time.
RCRA. See Section 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,
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and (ii) the real estate assets owned or ground-leased as a lessee by each of
the Partially-Owned Entities at such time of reference.
RECORD. The grid attached to any Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Lender
with respect to any Loan.
RECOURSE. With reference to any obligation or liability, any liability or
obligation that is not Without Recourse to the obligor thereunder, directly or
indirectly. For purposes hereof, a Person shall not be deemed to be "indirectly"
liable for the liabilities or obligations of an obligor solely by reason of the
fact that such Person has an ownership interest in such obligor, PROVIDED that
such Person is not otherwise legally liable, directly or indirectly, for such
obligor's liabilities or obligations (e.g., by reason of a guaranty or
contribution obligation, by operation of law or by reason of such Person's being
a general partner of such obligor).
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 Section 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 Section 3.2, such Reimbursement
Obligation shall simultaneously with such drawing be converted to and become a
Alternate Base Rate Loan as set forth in Section 3.3.
REIT. A "real estate investment trust", as such term is defined in Section
856 of the Code.
REFUNDED SWING LOAN. See Section 2.1(b).
REFUNDING DATE. See Section 2.1(b).
RELEASE. See Section 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.
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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.
REVOLVING CREDIT LOAN(S). Each and every revolving credit loan made or to
be made by the Lenders to the Borrower pursuant to Section 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.
S&P. Standard & Poor's Ratings Group, a division of XxXxxx-Xxxx, Inc., and
its successors.
XXXX. See Section 6.18.
SEC FILINGS. Collectively, (a) the MCRC's Annual Report on Forms 10-K and
10-K/A for the year ended December 31, 2001, filed with the Securities and
Exchange Commission (the "SEC") pursuant to the Securities and Exchange Act of
1934, as amended (the "EXCHANGE ACT"), and (b) MCRC's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 2002 filed with the SEC pursuant to
the Exchange Act.
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SUBSIDIARY. Any entity required to be consolidated with its direct or
indirect parent in accordance with GAAP.
SUBSIDIARY. Any corporation, association, partnership, limited liability
company, trust, or other business entity of which the designated parent shall at
any time own directly, or indirectly through a Subsidiary or Subsidiaries, at
least a majority (by number of votes or controlling interests) of the
outstanding voting interests or at least a majority of the economic interests
(including, in any case, the Operating Subsidiaries and any entity required to
be consolidated with its designated parent in accordance with GAAP).
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, as the
same shall have been reaffirmed in accordance with Section 10.10 hereof for
Subsidiary Guaranties executed prior to the date hereof.
SUBSIDIARY GUARANTY PROCEEDS. See Section 5.2.
SWING LENDER. JPMorgan, in its capacity as the Swing Lender under the Swing
Loan facility described in Section 2.1(b), and its successors in such capacity.
SWING LOAN. A Loan made by the Swing Lender pursuant to Section 2.1(b).
SWING LOAN COMMITMENT. The lesser of (a) $30,000,000 and (b) the aggregate
amount of the unused Total Commitments.
SWING LOAN REFUND AMOUNT. See Section 2.1(b).
SYNDICATION AGENTS. Fleet National Bank and Commerzbank AG, New York and
Cayman Islands Branches.
SYNTHETIC LEASE. Any lease which is treated as an operating lease under
GAAP and as a loan or financing for U.S. income tax purposes.
THIRD DEBT RATING. MCRLP's long term unsecured debt rating from a Third
Rating Agency.
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THIRD RATING AGENCY. Fitch or another nationally-recognized rating agency
(other than S&P or Moody's) 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 $600,000,000, except as such
amount may be increased pursuant to Section 2.2 hereof or reduced pursuant to
Section 2.10 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 other than those listed in Section 8.2(iii) and
Section 8.2(x)), (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 Section 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 and has not
been the subject of an event or occurrence that has had a Material Adverse
Effect on such Guarantor
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
Fronting Bank 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.
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UNIMPROVED NON-INCOME PRODUCING LAND. Any Real Estate consisting of raw
land which is unimproved by Buildings and does not generate any rental income or
other income for MCRC or the Borrower or any of their respective Subsidiaries.
UNRESTRICTED CASH AND CASH EQUIVALENTS. As of any date of determination,
the sum of (a) the aggregate amount of unrestricted cash then held by the
Borrower or any of its Subsidiaries and (b) the aggregate amount of unrestricted
cash equivalents (valued at fair market value) then held by the Borrower or any
of its Subsidiaries. As used in this definition, (i) "unrestricted" means the
specified asset is not subject to any Liens in favor of any Person and (ii)
"cash equivalents" includes overnight deposits and also means that such asset
has a liquid, par value in cash and is convertible to cash within 3 months.
Notwithstanding anything contained herein to the contrary, the term Unrestricted
Cash and Cash Equivalents shall not include the Commitments of the Lenders to
make Loans under 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.
UPFRONT FEE. See Section 2.4(e).
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.
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Section 1.2. RULES OF INTERPRETATION.
(i) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms (and so amended, modified or supplemented
in accordance with this Agreement) or the terms of this Agreement.
(ii) The singular includes the plural and the plural includes the
singular.
(iii) A reference to any law includes any amendment or modification
to such law.
(iv) A reference to any Person includes its permitted successors and
permitted assigns.
(v) Accounting terms (a) not otherwise defined herein have the
meanings assigned to them by GAAP applied on a consistent basis by the
accounting entity to which they refer and (b) shall not provide for double
counting of items included within such term.
(vi) The words "include", "includes" and "including" are not
limiting.
(vii) All terms not specifically defined herein or by GAAP, which
terms are defined in the Uniform Commercial Code as in effect in New York,
have the meanings assigned to them therein.
(viii) Reference to a particular "Section" 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 Section 12.1 and the rights of the Lenders
under Sections 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.
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(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.
Section 2. THE CREDIT FACILITY.
Section 2.1. COMMITMENT TO LEND.
(a) REVOLVING CREDIT LOANS. Subject to the provisions of Section 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 Section 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 and Swing 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 or
Swing Loan made pursuant to Section 2.5 hereof shall constitute a representation
and warranty by the Borrower that the conditions set forth in Section 10 have
been satisfied as of the Closing Date and that the conditions set forth in
Section 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 or Swing
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 or Swing Loan shall be required to
be made by any Lender, or the Swing Lender, as the case may be, unless all of
the conditions contained in Section 10 have been satisfied as of the Closing
Date and all of the conditions set forth in Section 11 have been met at the time
of any request for a Revolving Credit Loan or Swing Loan.
(b) SWING LOANS.
(i) BASIC TERMS. During the term of this Agreement, the Swing
Lender agrees, on the terms and conditions set forth in this
Agreement, to make certain loans to the Borrower (each, a "SWING
LOAN") pursuant to this Section 2.1(b)(i) from time to time in amounts
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such that after giving effect to such loan (A) the aggregate principal
amount of Swing Loans does not at any time exceed the Swing Loan
Commitment, and (B) the outstanding amount of all Revolving Credit
Loans, Swing Loans, Competitive Bid Loans and the Maximum Drawing
Amount on all Letters of Credit outstanding shall not exceed the Total
Commitment in effect at such time. Each Swing Loan shall be in an
aggregate principal amount of at least $2,000,000 (except that any
Swing Loan may be in the aggregate available amount of Swing Loans
determined in accordance with the immediately preceding sentence).
Within the foregoing limits, the Borrower may borrow under this
Section 2.1(b)(i), repay or, to the extent permitted by Section 2.9,
prepay Swing Loans and reborrow at any time during the term of this
Agreement under this Section 2.1(b)(i). Notwithstanding anything to
the contrary contained herein, the Swing Lender shall not make a Swing
Loan after the occurrence and during the continuance of an Event of
Default. No Swing Loan may be outstanding on the last Business Day of
any calendar month.
(ii) CONVERSION OF SWING LOANS TO REVOLVING CREDIT LOANS. The
Swing Lender may, on behalf of the Borrower (which hereby irrevocably
directs the Swing Lender to act on its behalf), on notice given by the
Swing Lender no later than 12:00 noon (New York City time), on the
Business Day on or immediately following the funding of any Swing
Loan, request each Lender to make, and each Lender (including the
Swing Lender) hereby agrees to make, an Alternate Base Rate Loan, in
an amount (with respect to each Lender, its "SWING LOAN REFUND
AMOUNT") equal to such Lender's Commitment Percentage of the aggregate
principal amount of the Swing Loans (the "REFUNDED SWING LOANS")
outstanding on the date of such notice, to repay the Swing Lender.
Unless any of the events described in Sections 12.1(g) or (h) with
respect to the Borrower shall have occurred and be continuing or
Revolving Credit Loans cannot otherwise be made on such date (in which
case the terms of Section 2.1(b)(iii) shall govern), each Lender shall
make such Alternate Base Rate Loan available to the Administrative
Agent at its address specified in or pursuant to Section 19(b) in
immediately available funds, not later than 1:00 P.M. (New York City
time), on the Business Day immediately following the date of such
notice. The Swing Lender shall be deemed to have made such Alternate
Base Rate Loan in an amount equal to (x) the amount of such Swing Loan
less (y) the aggregate amount of the Swing Loan Refund Amount of all
other Lenders. The Administrative Agent shall pay the proceeds of such
Alternate Base Rate Loans to the Swing Lender, which shall
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immediately apply such proceeds to repay Refunded Swing Loans.
Effective on the day such Alternate Base Rate Loans are made, the
portion of the Swing Loans so paid (or deemed paid in the case of the
Swing Lender) shall no longer be outstanding as Swing Loans, shall no
longer be due as Swing Loans under the Note held by the Swing Lender,
and shall be due as Alternate Base Rate Loans under the respective
Notes issued to the Lenders (including the Swing Lender) in accordance
with each Lender's Swing Loan Refund Amount. The Borrower authorizes
the Swing Lender to charge the Borrower's accounts with the
Administrative Agent (up to the amount available in each such account)
in order to immediately pay the amount of such Refunded Swing Loans to
the extent amounts received from the Lenders are not sufficient to
repay in full such Refunded Swing Loans.
(iii) PURCHASE OF PARTICIPATIONS IN SWING LOANS. If, prior to
the time Revolving Credit Loans would have otherwise been made
pursuant to Section 2.1(b)(ii), any of the events described in
Sections 12.1(g) or (h) with respect to the Borrower shall have
occurred and be continuing or Revolving Credit Loans cannot otherwise
be made on such date, each Lender shall, on the date such Revolving
Credit Loans were to have been made pursuant to the notice referred to
in Section 2.1(b)(ii) (the "REFUNDING DATE"), purchase an undivided
participating interest in the Swing Loans in an amount equal to such
Lender's Swing Loan Refund Amount. On the Refunding Date, each Lender
shall transfer to the Swing Lender, in immediately available funds,
such Lender's Swing Loan Refund Amount, and upon receipt thereof the
Swing Lender shall deliver to such Lender a Swing Loan participation
certificate dated the date of the Swing Lender's receipt of such funds
and in the Swing Loan Refund Amount of such Lender.
(iv) PAYMENTS ON PARTICIPATED SWING LOANS. Whenever, at any
time after the Swing Lender has received from any Lender such Lender's
Swing Loan Refund Amount pursuant to Section 2.1(b)(iii), the Swing
Lender receives any payment on account of the Swing Loans in which the
Lenders have purchased participations pursuant to Section 2.1(b)(iii),
the Swing Lender will promptly distribute to each such Lender its
ratable share (determined on the basis of the Swing Loan Refund
Amounts of all of the Lenders) of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of
time during which such Lender's participating interest was outstanding
and funded); PROVIDED, HOWEVER, that in the event that such payment
received by the Swing Lender is required to be
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returned, such Lender will return to the Swing Lender any portion
thereof previously distributed to it by the Swing Lender.
(v) OBLIGATIONS TO REFUND OR PURCHASE PARTICIPATIONS IN SWING
LOANS ABSOLUTE. Each Lender's obligation to transfer the amount of a
Swing Loan made in accordance with Section 2.1(b)(i) to the Swing
Lender as provided in Section 2.1(b)(ii) or to purchase a
participating interest pursuant to Section 2.1(b)(iii) shall be
absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender,
the Borrower or any other Person may have against the Swing Lender or
any other Person, other than the Swing Lender's gross negligence or
willful misconduct in connection with making any such Swing Loan, (B)
the occurrence or continuance of a Default or an Event of Default or
the termination or reduction of the Commitments, (C) any adverse
change in the condition (financial or otherwise) of the Borrower or
any other Person, (D) any breach of this Agreement by the Borrower,
any other Lender or any other Person, or (E) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
foregoing.
Section 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 up to four (4) occasions during the term of
this Agreement that the Total Commitment be increased by an amount not less than
$25,000,000 per request and not more than $200,000,000 in the aggregate (such
that the Total Commitment after such increase shall never exceed $800,000,000);
PROVIDED that for any such request (a) the Borrower shall not have requested the
one-year extension of the Maturity Date pursuant to the definition thereof, (b)
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 (c) 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 any such increase, the Total Commitment and
the Commitments of the committed Lenders shall be increased, the Commitment
Percentages of the Lenders shall be adjusted, new Notes shall be issued, the
Borrower shall make such
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borrowings and repayments as shall be necessary to effect the reallocation of
the Commitments, 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
Section 2.2, in each case without the consent of the Lenders other than those
Lenders increasing their Commitments. 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 Section 2.2 shall constitute
or be deemed to constitute an agreement by any Lender to increase its Commitment
hereunder.
Section 2.3. THE NOTES. The Revolving Credit Loans shall, and Swing Loans
may, be evidenced by the Notes. Return and cancellation of the "Notes" under the
Original Agreement and issuance of initial Notes under this Agreement shall be
governed by Section 27 hereof. A Revolving Credit Note shall be payable to the
order of each Lender, and a Swing Loan promissory note may, at the Swing
Lender's direction, be payable to the order of the Swing Lender, in an aggregate
principal amount equal to such Lender's Commitment or Swing Lender's commitment
to make Swing Loans, as the case may be. The Borrower irrevocably authorizes
each Lender to make or cause to be made, at or about the time of the Drawdown
Date of any Loan or at the time of receipt of any payment of principal on such
Lender's Notes, an appropriate notation on such Lender's Note Record reflecting
the making of such Revolving Credit Loan, Swing Loan or (as the case may be) the
receipt of such payment. The outstanding amount of the Loans set forth on such
Lender's Note Record shall be PRIMA FACIE evidence of the principal amount
thereof owing and unpaid to such Lender, but the failure to record, or any error
in so recording, any such amount on such Lender's Note Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any Note to
make payments of principal of or interest on any Note when due. The
Administrative Agent hereby agrees to provide the Borrower with a statement
concerning the outstanding amount of the Loans, in reasonable detail, on a
monthly basis. Although each Note shall be dated the Closing Date, interest in
respect thereof shall be payable only for the periods during which the Loans
evidenced thereby to the Borrower are outstanding, and although the stated
amount of such Notes shall be equal to the Total Commitment as of the date
hereof, such Notes shall be enforceable, with respect to obligations of the
Borrower to pay the principal amount thereof, only to the extent of the unpaid
principal amount of the Loans to them as of any date of determination.
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Section 2.4. INTEREST ON REVOLVING CREDIT LOANS AND SWING LOANS; FEES.
(a) INTEREST ON ALTERNATE BASE RATE LOANS AND SWING LOANS. Except as
otherwise provided in Section 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 Section 2.9) at a rate equal to the Alternate Base Rate PLUS the
Applicable Margin for Alternate Base Rate Loans, if any.
Except as otherwise provided in Section 4.9, each Swing Loan shall
bear interest on the outstanding principal amount thereof, for each day from the
date such Loan is made and ending on the last day of the Interest Period with
respect thereto (unless earlier paid in accordance with Section 2.9) at a rate
per annum 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 Section 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 Section 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 and Swing Loan in arrears on each
Interest Payment Date with respect thereto.
(d) ADVISORY AND STRUCTURING FEE. The Borrower agrees to pay to the
Administrative Agent, the Syndication Agents and the Arrangers that certain fee
(the "ADVISORY AND STRUCTURING FEE") as set forth in that certain letter
agreement dated as of July 15, 2002 between the Borrower, the Administrative
Agent, Fleet National Bank and the Arrangers (the "FEE LETTER").
(e) UPFRONT FEE. The Borrower agrees to pay to the Administrative
Agent on the Closing Date for the accounts of the Lenders in accordance with
their respective Commitment Percentages, a fee (the "UPFRONT FEE") as set forth
in the Fee Letter.
(f) FACILITY FEE. 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") which is a percentage per
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annum of the Total Commitment and which varies based on the Borrower's debt
ratings as set forth in the following table:
S&P RATING XXXXX'X RATING THIRD RATING FACILITY FEE
PERCENTAGE
----------------------- --------------------- ------------------------ -----------------
No rating or less than No rating or less No rating or less than 0.30%
BBB- than Baa3 BBB-/Baa3 equivalent
BBB- Baa3 BBB-/Baa3 equivalent 0.20%
BBB Baa2 BBB/Baa2 equivalent 0.20%
BBB+ Baa1 BBB+/Baa1 equivalent 0.15%
A- or higher A3 or higher A-/A3 equivalent 0.15%
or higher
Such fee shall be payable quarterly, in arrears, on the fifteenth (15th)
day of each January, April, July, and October, or, if all of the Commitments are
terminated pursuant to the terms hereof, such fee shall be prorated to such
termination date from the last date of payment thereof.
The Facility Fee Percentage to be used in calculating the Facility Fee
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 paragraph, and the Facility Fee Percentage 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
a Facility Fee Percentage based upon a debt rating, MCRLP shall maintain debt
ratings from at least two (2) nationally recognized rating agencies reasonably
acceptable to the Administrative Agent, one of which must be Xxxxx'x or S&P so
long as such Persons are in the business of providing debt ratings for the REIT
industry; PROVIDED that if MCRLP fails to maintain at least two debt ratings,
the Facility Fee Percentage shall be based upon an S&P rating of less than BBB-
in the table above. 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 Facility Fee
Percentage, (a) MCRLP has then current debt ratings from two (2) rating
agencies, then the Facility Fee Percentage shall be based on the lower of such
ratings, or (b) MCRLP has then current debt ratings from three (3) rating
agencies, then the Facility Fee Percentage shall be based on the lower of the
two highest ratings.
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(g) ADMINISTRATIVE FEE. The Borrower shall pay to the Administrative Agent
a fee (the "ADMINISTRATIVE FEE") as set forth in the Fee Letter.
Section 2.5. REQUESTS FOR REVOLVING CREDIT LOANS AND SWING LOANS.
The following provisions shall apply to each request by the Borrower for a
Revolving Credit Loan or Swing Loan:
(i) The Borrower shall submit a Completed Revolving Credit Loan
Request or Completed Swing Loan Request to the Administrative Agent as
provided in this Section 2.5. Except as otherwise provided herein, each
Completed Revolving Credit Loan Request and Completed Swing 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
and Completed Swing Loan Request shall be irrevocable and binding on the
Borrower and shall obligate the Borrower to accept the Loans requested from
the Lenders on the proposed Drawdown Date, unless, in the case of Revolving
Credit Loans only, 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 and Completed
Swing 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. In the
case of Revolving Credit Loans, such delivery shall be 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; in the case of Swing Loans,
such delivery may be on the requested Drawdown Date so long as such
delivery is made by 12:00 p.m. noon (New York City time) on the proposed
Drawdown Date (and confirmed by telephone by such time).
(iii) Each Completed Revolving Credit Loan Request and Completed
Swing Loan Request shall include a completed writing in the form of EXHIBIT
C hereto specifying: (1) whether such Loan is to be a Revolving Credit Loan
or a Swing Loan, (2) the principal amount of the Loan requested, (3) the
proposed Drawdown Date of such Loan, (4) if a Completed Revolving Credit
Loan Request, the Interest Period applicable
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to such Revolving Credit Loan, and (5) if a Completed Revolving Credit Loan
Request, the Type of such Revolving Credit Loan being requested.
(iv) No Lender shall be obligated to fund any Revolving Credit Loan
or Swing Loan unless:
(a) a Completed Revolving Credit Loan Request or Completed Swing
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 or, as the case may be, to the Swing Loan to be made pursuant
to the Completed Swing Loan Request, all of the conditions contained
in Section 10 shall have been satisfied as of the Closing Date and all
of the conditions set forth in Section 11 shall have been met,
including, without limitation, the condition under Section 11.1 that
there be no Default or Event of Default under this Agreement; and
(c) the Administrative Agent shall have received a certificate in
the form of EXHIBIT D hereto signed by the chief financial officer or
senior vice president of finance or other thereon designated officer
of the Borrower setting forth computations evidencing compliance with
the covenants contained in Sections 9.1 and 9.6 on a PRO FORMA basis
after giving effect to such requested Loan (including, to the extent
necessary to evidence compliance thereunder, the estimated results for
all Real Estate to be acquired with the proceeds of such requested
Loan), and, certifying that, both before and after giving effect to
such requested Loan, no Default or Event of Default exists or will
exist under this Agreement or any other Loan Document, and that after
taking into account such requested Loan, no Default or Event of
Default will exist as of the Drawdown Date or thereafter.
(v) The Administrative Agent will cause the Completed Revolving
Credit Loan Request or the Completed Swing Loan Request (and the
Certificate in the form of EXHIBIT D) to be delivered to each Lender in
accordance with Section 14.12 and in any event on the same day that such
request is received by the Administrative Agent (in the case of an
Alternate Base Rate Loan or Swing Loan) and on the same day or the Business
Day following the day a Completed Revolving Credit Loan Request is received
by the Administrative Agent (in the case of a Revolving Credit LIBOR Rate
Loan).
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Section 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 an
Alternate Base Rate Loan, the Borrower shall give the Administrative Agent at
least three (3) Business Days prior written notice of such election; (ii) with
respect to any such conversion of an Alternate Base Rate Loan to a 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 Section 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 Section 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
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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 Sections 4.5, 4.6, and
4.8 hereof.
(d) The Borrower may not request or elect a Revolving Credit LIBOR
Rate Loan pursuant to Section 2.5, elect to convert a Alternate Base Rate Loan
to a Revolving Credit LIBOR Rate Loan pursuant to Section 2.6(a), elect to
continue a Revolving Credit LIBOR Rate Loan pursuant to Section 2.6(b) or have
continued a Revolving Credit LIBOR Rate Loan pursuant to Section 2.6(c) if,
after giving effect thereto, there would be greater than twenty (20) Revolving
Credit LIBOR Rate Loans then outstanding. Any Loan Request for a Revolving
Credit LIBOR Rate Loan that would create greater than twenty (20) Revolving
Credit LIBOR Rate Loans outstanding shall be deemed to be a Loan Request for a
Alternate Base Rate Loan.
Section 2.7. FUNDS FOR REVOLVING CREDIT LOANS AND SWING LOANS.
(a) Subject to the other provisions of this Section 2, not later than
12:00 p.m. (New York City time) on the proposed Drawdown Date of any Revolving
Credit Loan and not later than 1:00 p.m. (New York City time) on the proposed
Drawdown Date of any Swing Loan, each of the Lenders (or in the case of a Swing
Loan, the Swing Lender) 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, or, in the case of a Swing Loan, the requested Swing Loan amount;
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 Loan made available to the Administrative Agent by the Lenders;
all such funds received by the Administrative Agent by the times set forth above
will be made available to the Borrower not later than 2:00 p.m. on the same
Business Day. Funds received after such time will be made available by not later
than 12:00 p.m. on the next Business Day. The Administrative Agent hereby agrees
to
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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 increase its Commitment
Percentage on account of such failure or otherwise.
(b) The Administrative Agent may, unless notified to the contrary by
any Lender prior to a Drawdown Date, assume that such Lender has made available
to the Administrative Agent on such Drawdown Date the amount of such Lender's
Commitment Percentage of the Loan to be made on such Drawdown Date, and the
Administrative Agent may (but it shall not be required to), in reliance upon
such assumption, make available to the Borrower a corresponding amount. If any
Lender makes available to the Administrative Agent such amount on a date after
such Drawdown Date, such Lender shall pay to the Administrative Agent on demand
an amount equal to the product of (i) the average, computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid by
the Administrative Agent for federal funds acquired by the Administrative Agent
during each day included in such period, MULTIPLIED BY (ii) the amount of such
Lender's Commitment Percentage of such 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.
Section 2.8. REPAYMENT OF THE REVOLVING CREDIT LOANS AND SWING 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
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the Revolving Credit Loans and Swing 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 Notes or any other of the Loan
Documents.
Section 2.9. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS AND SWING
LOANS. The Borrower shall have the right, at its election, to prepay the
outstanding amount of the Revolving Credit Loans and Swing 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
Section 2.9 of any Alternate Base Rate Loans, and at least three (3) LIBOR
Business Days' notice of any proposed prepayment pursuant to this Section 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. Same day notice
is permitted for prepayment pursuant to this Section 2.9 of Swing Loans so long
as such notice is delivered not later than 12:00 p.m. (New York City time). 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 or Swing Loans then being repaid, shall be accompanied by
the payment of all charges outstanding on all Revolving Credit Loans or Swing
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 Swing Loans, then to Alternate Base Rate
Loans and then to the principal of Revolving Credit LIBOR Rate Loans, at the
Administrative Agent's option.
Section 2.10. REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the
right at any time and from time to time upon five (5) Business Days prior
written notice to the Administrative Agent to reduce by $10,000,000 or an
integral multiple thereof or terminate entirely the unborrowed portion of the
Total Commitment (with outstanding Letters of Credit and Swing Loans to be
considered as being borrowed for the purposes hereof), whereupon the Commitments
of the Lenders shall be reduced pro rata in accordance with their respective
Commitment Percentages of the amount specified in such notice or, as the case
may be, terminated. Promptly after receiving any notice of the Borrower
delivered pursuant to this Section 2.10, the Administrative Agent will notify
the Lenders of the substance thereof. Upon the effective date of any such
reduction or termination, the Borrower shall pay to the Administrative Agent for
the respective accounts of the Lenders the full amount of any Facility Fee
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then accrued on the amount of the reduction. No reduction of the Commitments may
be reinstated.
Section 2A. COMPETITIVE BID LOANS.
Section 2A.1. THE COMPETITIVE BID OPTIONS. In addition to the Revolving
Credit Loans and Swing Loans made pursuant to Section 2 hereof, and provided
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 from time to time request Competitive Bid Loans pursuant to the
terms of this Section 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 Section 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 and Swing Loans, plus (ii) the Maximum Drawing
Amount of Letters of Credit outstanding at such time, or (b) $300,000,000.
Section 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 Section 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
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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 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.
Section 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 Section 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) four (4) 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:
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(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 invitation by the Borrower to
each Lender to submit Competitive Bid Quotes in accordance with this Section 2A.
Section 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 Section 2A.3, the Administrative Agent or
any Lender shall be unable to complete any procedure of the auction process
described in Sections 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.
Section 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 Section 2A.5 and must be
submitted to the Administrative Agent by telex or facsimile transmission at its
offices as specified in or pursuant to Section 19 not later than (i) 10:00 a.m.
(New York City time)
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on the third 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 Sections 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;
(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. Competitive Bid Loans may, as provided
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in Section 10.18, be funded by a Lender's Designated Bank. A Lender making a
Competitive Bid Quote may, but shall not be required to, specify in its
Competitive Bid Quote whether the related Competitive Bid Loans are intended to
be funded by such Lender's Designated Bank, as provided in Section 18.10.
(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 Section 2A.5(a) hereof.
Section 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 Section 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 Section 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.
Section 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 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:
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(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
Section 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.
Section 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.
Section 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
Sections 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. 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 Administrative Agent, in immediately available funds
not later than 1:00 p.m. (New York City time) on such Drawdown Date.
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Section 2A.10. FUNDING LOSSES. If, after acceptance of any Competitive Bid
Quote pursuant to Section 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
Section 4.8.
Section 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 Section 2.6
shall not apply to Competitive Bid Loans.
Section 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 Section 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 Section 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 Section 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.
Section 3. LETTERS OF CREDIT.
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Section 3.1. LETTER OF CREDIT COMMITMENTS.
Section 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 Section 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 and (b) the sum of (i) the Maximum
Drawing Amount on all Letters of Credit and (ii) the amount of all Revolving
Credit Loans, Swing Loans and Competitive Bid Loans outstanding shall not exceed
the Total Commitment in effect at such time. The Fronting Bank shall give the
Administrative Agent prompt notice of the issuance of each Letter of Credit, and
the Administrative Agent shall forward such notice to Lenders in accordance with
Section 14.12.
Section 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.
Section 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.
Section 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
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reimburse the Fronting Bank on demand pursuant to Section 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 Section 3.2 (such
agreement for a Lender being called herein the "LETTER OF CREDIT PARTICIPATION"
of such Lender).
Section 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, the Borrower hereby agrees, except as
contemplated in Section 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 Section 3.2(b) or
Section 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 Section 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 Section 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 Section
3.3 and remaining unpaid by the Borrower under this Section 3.2 at any time from
the date such amounts become due and payable (whether as stated in this Section
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 Section 4.9 for overdue principal
on the Revolving Credit Loans.
Section 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 Section 3.3, the Borrower shall reimburse Administrative
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Agent, as set forth in Section 3.2 above. Notwithstanding anything contained in
Section 3.2 above or this Section 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 Section 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 Section 2.6. Each Lender shall, in accordance with Section 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 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 Section 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.
Section 3.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Section 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 Section 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
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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.
Section 3.5. RELIANCE BY ISSUER. To the extent not inconsistent with
Section 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. 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 Section 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.
Section 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
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Bank, the Fronting Bank's customary issuance, amendment, negotiation or document
examination and other administrative fees as in effect from time to time.
Section 3.7. EXISTING LETTERS OF CREDIT. Those letters of credit issued for
the account of the Borrower by the Fronting Bank under the Original Agreement
prior to its being amended and restated by this Agreement and which are
outstanding on the date hereof, which Letters of Credit are 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.
Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, fees, and any other amounts
due hereunder or under any of the other Loan Documents shall be made to the
Administrative Agent, for the respective accounts of the Lenders or (as the case
may be) the Administrative Agent, at the Administrative Agent's Head Office, in
each case in Dollars and in immediately available funds.
(b) All payments by the Borrower hereunder and under any of the other
Loan Documents shall be made without setoff or counterclaim and free and clear
of and without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory liens, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the Borrower is
compelled by law to make such deduction or withholding. If any such obligation
is imposed upon the Borrower with respect to any amount payable by it hereunder
or under any of the other Loan Documents, the Borrower shall pay to the
Administrative Agent, for the account of the Lenders or (as the case may be) the
Administrative Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in Dollars
as shall be necessary to enable the Lenders to receive the same net amount which
the Lenders would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the
Administrative Agent certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made by the Borrower
hereunder or under such other Loan Document.
Section 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,
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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.
Section 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.
Section 4.4. ILLEGALITY. Subject to Sections 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 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 Sections 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 Section 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
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Lender to lenders of funds obtained by it in order to make or maintain its LIBOR
Rate Loans hereunder.
Section 4.5. ADDITIONAL COSTS, ETC. Subject to Sections 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
(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
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(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.
Section 4.6. CAPITAL ADEQUACY. Subject to Sections 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 of such fact. To the extent that the amount of such reduction in
the return on capital is
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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 Section 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.
Section 4.7. CERTIFICATE. A certificate setting forth any additional
amounts payable pursuant to Sections 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.
Section 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 Section 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.
Section 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).
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Section 4.10. [Intentionally Omitted]
Section 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 Sections
4.4, 4.5 or 4.6, such Lender will give notice thereof to the Borrower, with a
copy to the Administrative Agent and, to the extent so requested by the Borrower
and not inconsistent with regulatory policies applicable to such Lender, such
Lender shall use reasonable efforts and take such actions as are reasonably
appropriate (including the changing of its lending office or branch) if as a
result thereof the additional moneys which would otherwise be required to be
paid to such Lender pursuant to such sections would be reduced other than for de
minimis amounts, or the illegality or other adverse circumstances which would
otherwise require a conversion of such Loans or result in the inability to make
such Loans pursuant to such sections would cease to exist, and in each case if,
as determined by such Lender in its sole discretion, the taking such actions
would not adversely affect such Loans.
Section 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 Sections 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 Section
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 Section 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 Section 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
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Obligations then due and payable to the Affected Lender; PROVIDED, HOWEVER, that
(x) such assignment shall be in accordance with the provisions of Section 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 Sections 4.4, 4.5 and 4.8.
Section 5. GUARANTIES.
Section 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.
Section 5.2. SUBSIDIARY GUARANTY PROCEEDS. (a) Notwithstanding any
provision of this Agreement or any other Loan Document to the contrary, the
Administrative Agent and the Lenders agree with the Borrower that any funds,
claims, or distributions actually received by the Administrative Agent or any
Lender for the account of any Lender as a result of the enforcement of, or
pursuant to a claim relating solely to the Loans under, any Subsidiary Guaranty,
net of the Administrative Agent's and the Lenders' expenses of collection
thereof (such net amount, "SUBSIDIARY GUARANTY PROCEEDS"), shall be made
available for distribution equally and ratably (in proportion of the aggregate
amount of principal, interest and other amounts then owed in respect of the
Obligations or of the issuance of Public Debt, as the case may be) among the
Administrative Agent, the Lenders and the trustee or trustees of any Public Debt
so long as the Administrative Agent receives written notice of the amounts then
owed under the Public Debt; PROVIDED that such agreement to distribute
Subsidiary Guaranty Proceeds shall not be effective if the holders of the Public
Debt have the benefit of guaranties at any time from the Subsidiaries of the
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Borrower and have not made a reciprocal agreement to share the proceeds of such
guaranties with the Lenders. The Administrative Agent is hereby authorized, by
the Borrower, by each Lender and by the Borrower on behalf of each Subsidiary
Guarantor to make such Subsidiary Guaranty Proceeds available pursuant to the
immediately preceding sentence. No Lender shall have any interest in any amount
paid over by the Administrative Agent or any other Lender to the trustee or
trustees in respect of any Public Debt (or to the holders thereof) pursuant to
the foregoing authorization. This Section 5.2 shall apply solely to Subsidiary
Guaranty Proceeds, and not to any payments, funds, claims or distributions
received by the Administrative Agent or any Lender directly or indirectly from
Borrower or any other Person (including a Subsidiary Guarantor) other than from
a Subsidiary Guarantor pursuant to the enforcement of, or the making of a claim
relating solely to the Loans under, a Subsidiary Guaranty. The Borrower is aware
of the terms of the Subsidiary Guarantees, and specifically understands and
agrees with the Administrative Agent, and the Lenders that, to the extent
Subsidiary Guaranty Proceeds are distributed to holders of Public Debt or their
respective trustees, such Subsidiary Guarantor has agreed that the Obligations
under this Agreement and any other Loan Document will not be deemed reduced by
any such distributions, and each Subsidiary Guarantor shall continue to make
payments pursuant to its Subsidiary Guaranty until such time as the Obligations
have been paid in full (and the Commitments have been terminated and any Letter
of Credit Participations reduced to zero).
(b) Nothing contained in this Section 5.2 shall be deemed (i) to
limit, modify, or alter the rights of the Administrative Agent or any of the
Lenders under any Subsidiary Guaranty or other Guaranty, (ii) to subordinate the
Obligations to any Public Debt, or (iii) to give any holder of Public Debt (or
any trustee for such holder) any rights of subrogation.
(c) This Section 5.2, and each Guaranty, are for the sole benefit of
the Administrative Agent, the Lenders and their respective successors and
assigns. Nothing contained herein or in any Guaranty shall be deemed for the
benefit of any holder of Public Debt, or any trustee for such holder, nor shall
anything contained herein or therein be construed to impose on the
Administrative Agent or any Lender any fiduciary duties, obligations or
responsibilities to the holders of any Public Debt or their trustees (including,
but not limited to, any duty to pursue any Guarantor for payment under its
Subsidiary Guaranty).
Section 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 Section 6.
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Section 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
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business, assets or financial condition of MCRC or such
Subsidiary.
(iii) As to each subsequent Guarantor, a provision
similar, as applicable, to (a) (i) or (ii) above shall be
included in each such subsequent Guarantor's Subsidiary Guaranty,
and the Borrower shall be deemed to make for itself and on behalf
of each such subsequent Guarantor a representation and warranty
as to such provision regarding such subsequent Guarantor.
(b) CAPITALIZATION.
(i) The outstanding equity of MCRLP is comprised of a
general partner interest and limited partner interests, all of
which have been duly issued and are outstanding and fully paid
and non-assessable as set forth in SCHEDULE 6.1(b) hereto. 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
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SCHEDULE 6.1(b). Except as disclosed in SCHEDULE 6.1(b), as of
the Closing Date there are no outstanding securities or
agreements exchangeable for or convertible into or carrying any
rights to acquire any equity interests in any of MCRC's
Subsidiaries, and there are no outstanding options, warrants, or
other similar rights to acquire any shares of any class in the
capital of or any other equity interests in any of MCRC's
Subsidiaries. Except as disclosed in SCHEDULE 6.1(b), as of the
Closing Date there are no outstanding commitments, options,
warrants, calls or other agreements or obligations (whether
written or oral) binding on any of MCRC's Subsidiaries to issue,
sell, grant, transfer, assign, mortgage, pledge or otherwise
dispose of any shares of any class in the capital of or other
equity interests in any of MCRC's Subsidiaries. Except as
disclosed in SCHEDULE 6.1(b), 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
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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.
Section 6.2. GOVERNMENTAL APPROVALS. The execution, delivery and
performance by the Borrower of this Agreement and by the Borrower and each
Guarantor of the other Loan Documents to which the Borrower or such Guarantor is
a party and the transactions contemplated hereby and thereby do not require (i)
the approval or consent of any governmental agency or authority other than those
already obtained, or (ii) filing with any governmental agency or authority,
other than filings which will be made with the SEC when and as required by law.
Section 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 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
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Borrower and MCRC described in Section 6.4 or acquired in fee title (or, if Real
Estate, leasehold title under an Eligible Ground Lease) since the date of such
financial statements (except property and assets sold or otherwise disposed of
in the ordinary course of business since that date).
(c) As of the Closing Date, each of the direct or indirect interests
of MCRC, the Borrower or MCRC's other Subsidiaries in any Partially-Owned Entity
that owns Real Estate is set forth on SCHEDULE 6.3 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
Section 7.4(b).
Section 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, 2001 and their related consolidated income statements for the
fiscal year ended December 31, 2001. Such balance sheet and income statements
have been prepared in accordance with GAAP and fairly present the financial
condition of MCRC and its Subsidiaries as of the close of business on the date
thereof and the results of operations for the fiscal year then ended. There are
no contingent liabilities of MCRC as of such dates involving material amounts,
known to the officers of the Borrower or of MCRC, not disclosed in said
financial statements and the related notes thereto.
(b) The SEC Filings.
Section 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 Section 8.9 hereof.
Section 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.
Section 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
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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.
Section 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.
Section 6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrower, any Guarantor or any of their respective Subsidiaries that owns Real
Estate is in violation of any provision of its partnership agreement, charter
documents, bylaws or other organizational documents, as the case may be, or any
respective agreement or instrument to which it is subject or by which it or any
of its properties (including, in the case of MCRC and MCRLP, any of their
respective Subsidiaries) are bound or any decree, order, judgment, statute,
license, rule or regulation, in any of the foregoing cases in a manner that
could reasonably be expected to result, individually or in the aggregate, in the
imposition of substantial penalties or have a Material Adverse Effect.
Section 6.10. TAX STATUS.
(a) (i) Each of the Borrower, the Guarantors and their respective
Subsidiaries (A) has timely made or filed all federal, state and local income
and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject, (B) has paid all taxes and other governmental
assessments and charges shown or determined to be due on such returns, reports
and declarations, except those being contested in good faith and by appropriate
proceedings and (C) has set aside on its books provisions reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply, and (ii) there are no unpaid taxes in an
aggregate amount in excess of $10,000,000 at any one time claimed to be due by
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the taxing authority of any jurisdiction for which payment is required to be
made in accordance with the provisions of Section 7.9 and has not been timely
made, and the respective officers of the Borrower and the Guarantors and their
respective Subsidiaries know of no basis for any such claim.
(b) To the Borrower's knowledge, each Partially-Owned Entity (i) has
timely made or filed all federal, state and local income and all other tax
returns, reports and declarations required by any jurisdiction to which it is
subject, (ii) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations, except
those being contested in good faith and by appropriate proceedings and (iii) has
set aside on its books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. To the best of the Borrower's knowledge, except as otherwise
disclosed in writing to the Administrative Agent, there are no unpaid taxes in
an aggregate amount in excess of $10,000,000 at any one time claimed to be due
by the taxing authority of any jurisdiction for which payment is required to be
made in accordance with the provisions of Section 7.9 and has not been timely
made by any Partially-Owned Entity, and the officers of the Borrower know of no
basis for any such claim.
Section 6.11. NO EVENT OF DEFAULT; NO MATERIALLY ADVERSE CHANGES. No
Default or Event of Default has occurred and is continuing. Since June 30, 2002
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, 2001, 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.
Section 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 "principal underwriter" of an "investment company", as
such terms are defined in the Investment Company Act of 1940.
Section 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
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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.
Section 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.
Section 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.
Section 6.16. EMPLOYEE BENEFIT PLANS.
Section 6.16.1 IN GENERAL. Each Employee Benefit Plan and each
Guaranteed Pension Plan has been maintained and operated in compliance in
all material respects with the provisions of ERISA and, to the extent
applicable, the Code, including but not limited to the provisions
thereunder respecting prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as required by Section
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 Section 103(d) of ERISA, with respect to each Guaranteed Pension
Plan.
Section 6.16.2 TERMINABILITY OF WELFARE PLANS. No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of
Section 3(1) or Section 3(2)(B) of ERISA, provides benefit coverage
subsequent to termination of
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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.
Section 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 Section 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 Section 307 of ERISA or Section 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 Section 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.
Section 6.16.4 MULTIEMPLOYER PLANS. Neither the Borrower nor any
Guarantor nor any ERISA Affiliate has incurred any material liability
(including secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under Section
4201 of ERISA or as a result of a sale of assets described in Section 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 Section 4241 or Section 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
Section 4041A of ERISA.
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Section 6.17. REGULATIONS U AND X. The proceeds of the Loans shall be used
for the purposes described in Section 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, PROVIDED the Borrower may purchase MCRC
stock as long as it does not at any time cause the Lenders to be in violation of
Regulations U and X and such action does not otherwise constitute a Default or
an Event of Default.
Section 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
Section 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. Section 6903(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any toxic substances,
oil or hazardous materials or other chemicals or substances regulated by any
Environmental
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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
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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.
Section 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 Section 7.4(a) to reflect any changes,
including subsequent Guarantor and its Subsidiaries, if any.
Section 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.
Section 6.21. REIT STATUS. MCRC has not taken any action that would prevent
it from maintaining its qualification as a REIT or from maintaining such
qualification at all times during the term of the Loans.
Section 6.22. SUBSEQUENT GUARANTORS. The foregoing representations and
warranties in Section 6.3 through Section 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.
Section 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 obligation to make any Loans or any Lender has any
obligation to issue, extend or renew any Letters of Credit:
Section 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.
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Section 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.
Section 7.3. RECORDS AND ACCOUNTS. The Borrower and each of the
Guarantors will (a) keep true and accurate records and books of account in which
full, true and correct entries will be made in accordance with GAAP in all
material respects, and will cause each of its Subsidiaries that owns Real Estate
to keep true and accurate records and books of account in which full, true and
correct entries will be made in accordance with GAAP in all material respects,
(b) maintain adequate accounts and reserves for all taxes (including income
taxes), contingencies, depreciation and amortization of its properties and the
properties of its Subsidiaries and (c) at all times engage
PricewaterhouseCoopers LLP or other Accountants as the independent certified
public accountants of MCRC, MCRLP and their respective Subsidiaries and will not
permit more than thirty (30) days to elapse between the cessation of such firm's
(or any successor firm's) engagement as the independent certified public
accountants of MCRC, MCRLP and their respective Subsidiaries and the appointment
in such capacity of a successor firm as Accountants.
Section 7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The
Borrower will deliver and will cause MCRC to deliver to the Administrative
Agent:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each of its fiscal years, unless, in the case of
MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof,
in which case such annual financial statements shall be due in accordance with
the proviso to Section 7.4(g):
(i) in the case of MCRLP, the audited consolidated balance sheet
of MCRLP and its subsidiaries at the end of such year, the related audited
consolidated statements of operations, owner's equity (deficit) and cash
flows for the year then ended, in each case (except for statements of cash
flow and owner's equity) with supplemental consolidating schedules provided
by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance
sheet of MCRC and its subsidiaries (including, without limitation, MCRLP
and its subsidiaries) at the end of such year, the related audited
consolidated statements of operations, stockholders' equity (deficit) and
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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 first three (3) fiscal
quarters:
(i) in the case of MCRLP, copies of the unaudited consolidated
balance sheet of MCRLP and its subsidiaries as at the end of such quarter,
the related unaudited consolidated statements of operations, owner's equity
(deficit) and cash flows for the portion of MCRLP's fiscal year then
elapsed, with supplemental consolidating schedules (except with respect to
statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated
balance sheet of MCRC and its subsidiaries (including, without limitation,
MCRLP and its subsidiaries) as at the end of such quarter, the related
unaudited consolidated statements of operations, stockholders' equity
(deficit) and cash flows for the portion of MCRC's fiscal year then
elapsed, with supplemental consolidating schedules (except with respect to
statements of cash flow and stockholders' equity) provided by MCRC;
all in reasonable detail and prepared in accordance with GAAP on the same basis
as used in preparation of MCRC's Form 10-Q statements filed with the SEC,
together with a certification by the chief financial officer or senior vice
president of finance of MCRLP or MCRC, as applicable, that the information
contained in such financial statements fairly presents the financial position of
MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof
(subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) (for the fourth fiscal quarter of each fiscal
year) above and (b) (for the first three fiscal quarters of each fiscal year), a
statement in the form of EXHIBIT D hereto signed by the chief financial officer
or senior vice president of finance of the MCRLP or MCRC, as applicable, and (if
applicable) reconciliations to reflect changes in GAAP since the applicable
Financial Statement Date, but only to the extent that such changes in GAAP
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affect the financial covenants set forth in Section 9 hereof; and, in the case
of MCRLP, setting forth in reasonable detail computations evidencing compliance
with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each
report (including any so-called letters of reportable conditions or letters of
no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or
any of their respective subsidiaries by the Accountants in connection with each
annual audit of the books of the Borrower, MCRC, or any other Guarantor or such
subsidiary by such Accountants or in connection with any interim audit thereof
pertaining to any phase of the business of the Borrower, MCRC or any other
Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature sent to the holders of any Indebtedness of
the Borrower or any Guarantor (other than the Loans) for borrowed money, to the
extent that the information or disclosure contained in such material refers to
or could reasonably be expected to have a Material Adverse Effect;
(f) subject to subsection (g) below, contemporaneously with the
filing or mailing thereof, copies of all material of a financial nature filed
with the SEC or sent to the stockholders of MCRC;
(g) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of MCRC, copies of the Form 10-K
statement filed by MCRC with the SEC for such fiscal year, and as soon as
practicable, but in any event not later than forty-five (45) days after the end
of each fiscal quarter of MCRC, copies of the Form 10-Q statement filed by MCRC
with the SEC for such fiscal quarter, PROVIDED that, in either case, if MCRC has
filed an extension for the filing of such statements, MCRC shall deliver such
statements to the Administrative Agent within ten (10) days after the filing
thereof with the SEC which filing shall be within fifteen (15) days of MCRC's
filing for such extension or such sooner time as required to avert a Material
Adverse Effect on MCRC;
(h) from time to time, but not more frequently than once each
calendar quarter so long as no Default or Event of Default has occurred and is
continuing, such other financial data and information about the Borrower, MCRC,
the other Guarantors, their respective Subsidiaries, the Real Estate and the
Partially-Owned Entities as the Administrative Agent or any Lender acting
through the Administrative Agent may reasonably request, and which is prepared
by such Person in the normal course of its business or is required for
securities and tax law compliance, including pro forma financial statements
described in Section 9.9(b)(ii), complete rent rolls for the Unencumbered
Properties and
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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), but
excluding working drafts and papers and privileged documents; 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.
Section 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,
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demand, investigation or other action with regard to (A) the Borrower's or such
Guarantor's or any other Person's operation of any Real Estate, (B)
contamination on, from or into any Real Estate, or (C) investigation or
remediation of off-site locations at which the Borrower or such Guarantor or any
of its predecessors are alleged to have directly or indirectly disposed of
Hazardous Substances, or (iv) upon the Borrower's or such Guarantor's obtaining
knowledge that any expense or loss has been incurred by such governmental
authority in connection with the assessment, containment, removal or remediation
of any Hazardous Substances with respect to which the Borrower or such Guarantor
or any Partially-Owned Entity may be liable or for which a lien may be imposed
on any Real Estate; provided any of which events described in clauses (i)
through (iv) above would have a Material Adverse Effect or constitute a
Disqualifying Environmental Event with respect to any Unencumbered Property.
(c) NOTIFICATION OF CLAIMS AGAINST UNENCUMBERED PROPERTIES. The
Borrower will, and will cause each Guarantor to, promptly upon becoming aware
thereof, notify the Administrative Agent in writing of any setoff, claims,
withholdings or other defenses to which any of the Unencumbered Properties are
subject, which (i) would have a material adverse effect on the value of such
Unencumbered Property, (ii) would have a Material Adverse Effect, or (iii) with
respect to such Unencumbered Property, would constitute a Disqualifying
Environmental Event or a Lien which is not a Permitted Lien.
(d) NOTICE OF LITIGATION AND JUDGMENTS. The Borrower will, and will
cause each Guarantor and each Guarantor's Subsidiaries to, and the Borrower will
cause each of its respective Subsidiaries to, give notice to the Administrative
Agent in writing within ten (10) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and proceedings an
adverse determination in which could reasonably be expected to have a Material
Adverse Effect or materially adversely affect any Unencumbered Property, or to
which the Borrower, any Guarantor or any of their respective Subsidiaries is or
is to become a party involving an uninsured claim against the Borrower, any
Guarantor or any of their respective Subsidiaries that could reasonably be
expected to have a Materially Adverse Effect or materially adversely affect the
value or operation of the Unencumbered Properties and stating the nature and
status of such litigation or proceedings. The Borrower will, and will cause each
of the Guarantors and the Subsidiaries to, give notice to the Administrative
Agent, in writing, in form and detail reasonably satisfactory to the
Administrative Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Borrower, any Guarantor or any of
their Subsidiaries in an amount in excess of $1,000,000.
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(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 Section 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.
Section 7.6. EXISTENCE OF BORROWER AND SUBSIDIARY GUARANTORS; MAINTENANCE
OF PROPERTIES. The Borrower for itself and for each Subsidiary Guarantor insofar
as any such statements relate to such Subsidiary Guarantor will do or cause to
be done all things necessary to, and shall, preserve and keep in full force and
effect its existence as a limited partnership or its existence as another
legally constituted entity, and will do or cause to be done all things necessary
to preserve and keep in full force all of its material rights and franchises and
those of its Subsidiaries. The Borrower (a) will cause all necessary repairs,
renewals, replacements, betterments and improvements to be made to all Real
Estate owned or controlled by it or by any of its Subsidiaries or any Subsidiary
Guarantor, all as in the judgment of the Borrower or such Subsidiary or such
Subsidiary Guarantor may be necessary so that the business carried on in
connection therewith may be properly conducted at all times, subject to the
terms of the applicable Leases and partnership agreements or other entity
charter documents, (b) will cause all of its other properties and those of its
Subsidiaries and the Subsidiary Guarantors used or useful in the conduct of its
business or the business of its Subsidiaries or such Subsidiary Guarantor to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, ordinary wear and tear excepted, and (c) will, and
will cause each of its Subsidiaries and each Subsidiary Guarantor to, continue
to engage primarily in the businesses now conducted by it and in related
businesses consistent with the requirements of the fourth sentence of Section
7.7 hereof; PROVIDED that nothing in this Section 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.
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Section 7.7. EXISTENCE OF MCRC; MAINTENANCE OF REIT STATUS OF MCRC;
MAINTENANCE OF PROPERTIES. Except as expressly set forth in the second paragraph
of this Section 7.7, the Borrower will cause MCRC to do or cause to be done all
things necessary to preserve and keep in full force and effect MCRC's existence
as a Maryland corporation. The Borrower will cause MCRC at all times to maintain
its status as a REIT and not to take any action which could lead to its
disqualification as a REIT. The Borrower shall cause MCRC at all times to
maintain its listing on the New York Stock Exchange or any successor thereto.
The Borrower will cause MCRC to continue to operate as a fully-integrated,
self-administered and self-managed real estate investment trust which, together
with its Subsidiaries (including, without limitation MCRLP) owns and operates an
improved property portfolio comprised primarily (i.e., 85% or more by value) of
office, office/flex, warehouse and industrial/warehouse properties. The Borrower
will cause MCRC not to engage in any business other than the business of acting
as a REIT and serving as the general partner and limited partner of MCRLP, as a
member, partner or stockholder of other Persons and as a Guarantor. The Borrower
shall cause MCRC to conduct all or substantially all of its business operations
through MCRLP or through subsidiary partnerships or other entities in which (x)
MCRLP directly or indirectly owns at least 95% of the economic interests and (y)
MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole
general partner or managing member. The Borrower shall cause MCRC not to own
real estate assets outside of its interests in MCRLP. The Borrower will cause
MCRC and its Subsidiaries to do or cause to be done all things necessary to
preserve and keep in full force all of its rights and franchises and those of
its Subsidiaries. The Borrower will cause MCRC (a) to cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment,
ordinary wear and tear excepted, (b) to cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of MCRC may be necessary so that the business carried on in connection
therewith may be properly conducted at all times, and (c) to cause each of its
Subsidiaries to continue to engage primarily in the businesses now conducted by
it and in related businesses, consistent with the requirements of the fourth
sentence of this Section 7.7; PROVIDED that nothing in this Section 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.
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Notwithstanding the foregoing, MCRC shall be permitted to change its
organizational status to become a Maryland business trust (the "MCRC
ORGANIZATIONAL CHANGE"), PROVIDED the following conditions are satisfied: (i)
the Borrower gives the Administrative Agent at least ten (10) Business Days
prior written notice of such change; (ii) no Event of Default has occurred and
is continuing at the time such change occurs and no Default or Event of Default
would result therefrom; (iii) such change would not otherwise reasonably be
expected to have a Material Adverse Effect; (iv) MCRC reaffirms its obligations
under the MCRC Guaranty; (v) counsel for MCRC issues updated legal opinions
reasonably acceptable to the Administrative Agent and its counsel as to the
consummation of the MCRC Organizational Change and the continued enforceability
of the MCRC Guaranty; and (vi) MCRC and the Borrower provide any other
documentation reasonably requested by the Administrative Agent.
Section 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.
Section 7.9. TAXES. The Borrower will, and will cause each Guarantor to,
pay or cause to be paid real estate taxes, other taxes, assessments and other
governmental charges against the Real Estate before the same become delinquent
and will duly pay and discharge, or cause to be paid and discharged, before the
same shall become overdue, all taxes, assessments and other governmental charges
imposed upon its sales and activities, or any part thereof, or upon the income
or profits therefrom, as well as all claims for labor, materials, or supplies
that if unpaid might by law become a lien or charge upon any of the Real Estate;
PROVIDED that any such tax, assessment, charge, levy or claim need not be paid
if the validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if the Borrower or such Guarantor shall have set
aside on its books adequate reserves with respect thereto; and PROVIDED FURTHER
that the Borrower or such Guarantor will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor. If requested by
the Administrative Agent, the Borrower will provide evidence of the payment of
real estate taxes, other taxes, assessments and other governmental charges
against the Real Estate in the form of receipted tax bills or other form
reasonably acceptable to the Agent. Notwithstanding the foregoing, a breach of
the covenants set forth in this Section 7.9 shall only constitute
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an Event of Default if such breach results in an aggregate amount in excess of
$10,000,000 at any one time claimed due by the taxing authority of any
jurisdiction for which payment is required to be made and has not been timely
made.
Section 7.10. INSPECTION OF PROPERTIES AND BOOKS. The Borrower will, and
will cause each Guarantor to, permit the Lenders, coordinated through the
Administrative Agent, (a) on an annual basis as a group, or more frequently if
required by law or by regulatory requirements of a Lender or if a Default or an
Event of Default shall have occurred and be continuing, to visit and inspect any
of the properties of the Borrower, any Guarantor or any of their respective
Subsidiaries, and to examine the books of account of the Borrower, the
Guarantors and their respective Subsidiaries (and to make copies thereof and
extracts therefrom) and (b) to discuss the affairs, finances and accounts of the
Borrower, the Guarantors and their respective Subsidiaries with, and to be
advised as to the same by, its officers, all at such reasonable times and
intervals during normal business hours as the Administrative Agent may
reasonably request; PROVIDED that the Borrower shall only be responsible for the
costs and expenses incurred by the Administrative Agent in connection with such
inspections after the occurrence and during the continuance of an Event of
Default; and PROVIDED FURTHER that such Person has executed a confidentiality
agreement in substantially the form previously executed by the Administrative
Agent. The Administrative Agent and each Lender agrees to treat any non-public
information delivered or made available by the Borrower to it in accordance with
the provisions of the confidentiality agreement executed by such Person.
Section 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.
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Section 7.12. USE OF PROCEEDS. Subject at all times to the other provisions
of this Agreement, the Borrower will use the proceeds of the Loans solely for
general working capital needs (including letters of credit) and other general
corporate purposes.
Section 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.
Section 7.14. ADDITIONAL GUARANTORS; SOLVENCY OF GUARANTORS.
(a) If, after the Closing Date, a Subsidiary that is not a Guarantor,
(i) acquires any Real Estate that then or thereafter qualifies under (a)-(d) of
the definition of Unencumbered Property and is wholly-owned or ground leased
under an Eligible Ground Lease, or (ii) extends, holds or acquires any
Intercompany Secured Debt, in each case the Borrower shall cause such Person
(which Person must be or become a wholly-owned Subsidiary) to execute and
deliver a Guaranty to the Administrative Agent and the Lenders in substantially
the form of EXHIBIT B hereto. Such Guaranty shall evidence consideration and
equivalent value. The Borrower will not permit any Guarantor that owns or ground
leases any Unencumbered Properties to have any Subsidiaries unless such
Subsidiary's business, obligations and undertakings are exclusively related to
the business of such Guarantor in the ownership of the Unencumbered Properties.
(b) The Borrower, MCRC, and each Subsidiary Guarantor is solvent,
other than for Permitted Event(s) permitted by this Agreement which shall be the
only Non-Material Breaches under this Section 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.
Section 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
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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.
Section 7.16. [Intentionally Omitted]
Section 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 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.
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Section 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.
Section 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.
Section 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 Section 3(1) or Section 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.
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(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.
Section 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, certificate of formation, operating agreement or
other charter documents, as the case may be, to be modified, amended or
supplemented in any respect whatever, without (in each case) the express prior
written consent or approval of the Administrative Agent, if such changes would
adversely affect MCRC's REIT status or otherwise materially adversely affect the
rights of the Administrative Agent and the Lenders hereunder or under any other
Loan Document.
Section 7.22. [Intentionally Omitted]
Section 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 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
Xxxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxxxxx, Xxxxx X. Xxxxxx and
Xxxxxxx X. Xxxxxxxx, and such replacement individuals as are reasonably
acceptable to (and consented to in writing by) the Majority Lenders.
Section 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
transfers of cash and cash equivalents upstream to MCRLP and MCRC, and shall
continue to follow such ordinary course of business. MCRLP shall not make net
transfers of cash and cash equivalents downstream to its and MCRC's Subsidiaries
except for any transfers of cash and cash equivalents in connection
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with the extension of Intercompany Secured Debt and except in the ordinary
course of business consistent with past practice.
Section 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:
Section 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 Section 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 Section 9 hereof or under any other provision of this Agreement; and
(b) Guarantees of the Indebtedness of any Opportunity Fund which are
not permitted under the definition of "Opportunity Fund" herein.
The terms and provisions of this Section 8.1 are in addition to, and not in
limitation of, the covenants set forth in Section 9 of this Agreement.
Section 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,
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chattel paper or instruments, with or without recourse (the foregoing items (a)
through (e) being sometimes referred to in this Section 8.2 collectively as
"LIENS"), PROVIDED that the Borrower, the Guarantors and any Subsidiary may
create or incur or suffer to be created or incurred or to exist:
(i) Liens securing taxes, assessments, governmental charges
(including, without limitation, water, sewer and similar charges) or levies or
claims for labor, material and supplies;
(ii) deposits or pledges made in connection with, or to secure
payment of, worker's compensation, unemployment insurance, old age pensions or
other social security obligations; and deposits with utility companies and other
similar deposits made in the ordinary course of business;
(iii) Liens (other than affecting the Unencumbered Properties) in
respect of judgments or awards;
(iv) encumbrances on properties consisting of easements, rights of
way, covenants, notice of use limitations under Environmental Laws, restrictions
on the use of real property and defects and irregularities in the title thereto;
landlord's or lessor's Liens under Leases to which the Borrower, any Guarantor,
or any Subsidiary is a party or bound; purchase options granted at a price not
less than the market value of such property; and other similar Liens or
encumbrances on properties, none of which interferes materially and adversely
with the use of the property affected in the ordinary conduct of the business of
the owner thereof, and which matters neither (x) individually or in the
aggregate have a Material Adverse Effect nor (xx) make title to such property
unmarketable by the conveyancing standards in effect where such property is
located;
(v) any Leases (excluding Synthetic Leases) entered into in good
faith with Persons that are not Affiliates; PROVIDED that Leases with Affiliates
on market terms and with monthly market rent payments required to be paid are
Permitted Liens;
(vi) Liens and other encumbrances or rights of others which exist on
the date of this Agreement and which do not otherwise constitute a breach of
this Agreement;
(vii) as to Real Estate which 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;
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(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 Section 8.1;
(x) other Liens (other than affecting the Unencumbered Properties)
in connection with any Indebtedness not prohibited under Section 8.1 which do
not otherwise result in a Default or Event of Default under this Agreement;
(xi) Liens granted in accordance with Section 8.4(b) hereof; and
(xii) Liens affecting an Unencumbered Property consisting of
mortgages, deeds of trust or other security interests granted by a Subsidiary
Guarantor to the Borrower or another Guarantor to secure intercompany
Indebtedness owing from such Subsidiary Guarantor to the Borrower or such other
Guarantor; PROVIDED that at all times such Indebtedness and Liens (sometimes
referred to herein collectively as the "INTERCOMPANY SECURED DEBT") shall be
held by the Borrower or a Guarantor and the Borrower's or such Guarantor's
rights or interests therein shall not be subject to any Liens.
Notwithstanding the foregoing provisions of this Section 8.2, the failure
of any Unencumbered Property to comply with the covenants set forth in this
Section 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.
Section 8.3. [Intentionally Omitted]
Section 8.4. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
None of the Borrower, any Guarantor, any Operating Subsidiary or any
wholly-owned Subsidiary will:
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(a) Become a party to any merger, consolidation or reorganization
without the prior Unanimous Lender Approval, except that so long as no Default
or Event of Default has occurred and is continuing, or would occur after giving
effect thereto, the merger, consolidation or reorganization of one or more
Persons with and into the Borrower, any Guarantor, or any wholly-owned
Subsidiary, shall be permitted if (i) such action is not hostile, (ii) the
Borrower, any Guarantor, or any wholly-owned Subsidiary, as the case may be, is
the surviving entity or such merger, consolidation or reorganization involves
only MCRC and its Affiliates and is done in connection with an MCRC
Organizational Change otherwise permitted under this Agreement and (iii) such
merger, consolidation or reorganization does not cause a breach of Section 7.23
hereof or a Default or Event of Default under Section 12.1(m) hereof; PROVIDED,
that for any such merger, consolidation or reorganization (other than (v) the
merger or consolidation of one or more Affiliates of MCRC with and into MCRC, or
of MCRC into such Affiliate, in either case in connection with an MCRC
Organizational Change otherwise permitted under this Agreement, (w) the merger
or consolidation of one or more Subsidiaries of MCRLP with and into MCRLP, (x)
the merger or consolidation of two or more Subsidiaries of MCRLP, (y) the merger
or consolidation of one or more Subsidiaries of MCRC with and into MCRC, or (z)
the merger or consolidation of two or more Subsidiaries of MCRC), the Borrower
shall provide to the Administrative Agent a statement in the form of EXHIBIT D
hereto signed by the chief financial officer or senior vice president of finance
or other thereon designated officer of the Borrower and setting forth in
reasonable detail computations evidencing compliance with the covenants
contained in Section 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 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 senior vice
president of finance or other thereon designated officer of the
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Borrower and setting forth in reasonable detail computations evidencing
compliance with the covenants contained in Section 9 hereof and certifying
that no Default or Event of Default has occurred and is continuing, or
would occur and be continuing after giving effect to such proposed Sale or
Indebtedness Lien and all liabilities, fixed or contingent, pursuant
thereto; and PROVIDED FURTHER, if such Sale involves a qualified, deferred
exchange under Section 1031 of the Code, the Borrower shall also provide
the statements and certifications described in the previous proviso on the
date of any release from the escrow account of the proceeds of such
qualified, deferred exchange under Section 1031 of the Code;
(ii) the Sale of or the granting of an Indebtedness Lien on any
Unencumbered Property while a Default or Event of Default (other than a
Default or an Event of Default under Section 12.1(a) (including, without
limitation, any such failure to pay resulting from acceleration of the
Loans), Section 12.1(b), Section 12.1(c) (resulting from a failure to
comply with Section 7.7 (as to the legal existence and REIT status of MCRC)
or Section 9), Section 12.1(g), Section 12.1(h), or Section 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 Section 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 Section 1031 of the Code so long as such other
real property becomes an Unencumbered Property upon acquisition, and, in
any event, on the date of such Sale or granting of an Indebtedness Lien and
on the date of any release from the escrow account of the proceeds of the
qualified, deferred exchange under Section 1031 of the Code, the Borrower
shall provide to the Administrative Agent a statement in the form of
EXHIBIT D hereto signed by the chief financial officer or senior vice
president of finance or other thereon designated officer and setting forth
in reasonable detail computations evidencing compliance with the covenant
in Section 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 or to such release of proceeds;
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(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 exchange under Section 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 Section 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 senior 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 Section 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 Section 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.
Section 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
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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 Section 8.5 before the same shall be an Event
of Default under Section 12.1(c).
Section 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 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 Section 12.1(d) if such breach is not a
Non-Material Breach.
Section 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 in such period in an aggregate
amount in excess of 90% of Funds From Operations for such period (for purposes
of this clause, non-cash assets or interests in non-cash assets which are
distributed to equity interest holders of the Borrower shall be valued at the
value of such assets used in calculating Consolidated Total Capitalization) or
(ii) will not make any Distributions during any period when any Event of Default
under Section 12.1(a) (including, without limitation, any failure to pay
resulting from acceleration of the Loans) Section 12.1(b), Section 12.1(c)
resulting from a failure to comply with Section 7.7 (as to the legal existence
and REIT status of MCRC), Section 9, Section 12.1(g), Section 12.1(h), or
Section 12.1(j) has occurred and is continuing or (iii) will not make any
Distributions or transfers of cash or cash equivalents to any Guarantor or its
Subsidiaries when such Person is the subject of a Permitted Event except as
required by order of the tribunal in which such Permitted Event is occurring;
and except that such Person may make Distributions or transfers of cash or cash
equivalents permitted under Section 7.24 to a Guarantor or Subsidiary while such
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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.
Section 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 Section
406 of ERISA or Section 4975 of the Code which could result in a material
liability for the Borrower, any Guarantor or any of their respective
Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated funding
deficiency", as such term is defined in Section 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 Section 302(f) or Section
4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to Section 307 of ERISA or Section 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 Section 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 Section 12.1(c) if the prohibited matters
occurring are in the aggregate within the Dollar limits permitted within Section
12.1(l) and are otherwise the subject of the matters that are covered by the
Events of Default in Section 12.1(l)
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Section 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 Section 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
Section 9) to reflect such change in fiscal year.
Section 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:
Section 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.
Section 9.2. SECURED INDEBTEDNESS. As at the end of any fiscal quarter or
other date of measurement, the Borrower shall not permit Consolidated Secured
Indebtedness to exceed 40% of Consolidated Total Capitalization.
Section 9.3. TANGIBLE NET WORTH. As at the end of any fiscal quarter or
any other date of measurement, the Borrower shall not permit Consolidated
Tangible Net Worth to be less than the sum of (a) $1,750,000,000 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.
Section 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 Section 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.
Section 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
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Income to be less than one and one-half (1.5) times Consolidated Fixed Charges,
based on the results of the most recent two (2) complete fiscal quarters.
Section 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 the sum (the "SECTION 9.6 SUM") of (a)
aggregate Capitalized Unencumbered Property NOI for all Unencumbered Properties
plus (b) the value of all Eligible Cash 1031 Proceeds resulting from the sale of
Unencumbered Properties.
Section 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.
Section 9.8. INVESTMENT LIMITATION. None of the Borrower, any Guarantor,
or any Subsidiary will make or permit to exist or to remain outstanding any
Investment in violation of the following restrictions and limitations:
(a) As at the end of any fiscal quarter or other date of measurement,
the book value of Unimproved Non-Income Producing Land shall not exceed ten
(10%) of Consolidated Total Capitalization.
(b) Investments in Opportunity Funds shall be Without Recourse to the
Borrower, the Guarantors and their Subsidiaries other than as expressly
permitted 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 Total Capitalization or $200,000,000.
(c) As at the end of any fiscal quarter or other date of
measurement, the aggregate Project Costs of all Construction-in-Process shall
not exceed fifteen (15%) percent of Consolidated Total Capitalization. For
purposes of this Section 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
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Administrative Agent within five (5) Business Days being deemed to be its
approval) and (ii) in substantial compliance, with respect to both time and
cost, with the original construction budget and construction schedule, as
amended by change orders or otherwise updated. A property shall continue to be
considered Construction-in-Process until the date of substantial completion of
such property; from such date, it will continue to be valued (for financial
covenant compliance purposes) as if it were Construction-in-Process until the
earlier of (i) the end of four (4) consecutive calendar quarters following
substantial completion and (ii) the date upon which such property is 90% leased
to tenants who are then paying rent.
(d) As at the end of any fiscal quarter or other date of measurement,
the value of Indebtedness of third parties to the Borrower, the Guarantors, or
their Subsidiaries for borrowed money which is unsecured or is secured by
mortgage liens (valued at the book value of such Indebtedness) shall not exceed
fifteen (15%) percent of Consolidated Total Capitalization.
(e) The Investments set forth in clauses (a) through (d) above, taken
in the aggregate, shall not exceed thirty (30%) percent of Consolidated Total
Capitalization.
(f) Investments in Real Estate other than office, office flex, and
industrial/warehouse properties, taken in the aggregate, shall not exceed
fifteen (15%) of Consolidated Total Capitalization.
Section 9.9. COVENANT CALCULATIONS.
(a) For purposes of the calculations to be made pursuant to Sections
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),
(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
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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 Sections 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 of Sections 9.1 - 9.8 hereof, together with each
other section of this Agreement that refers or relates to GAAP, if any change in
GAAP after the Financial Statement Date results in a change in the calculation
to be performed in any such section, solely as a result of such change in GAAP,
then
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(i) the Borrower's compliance with such covenant(s) or section shall be
determined on the basis of GAAP in effect as of the Financial Statement Date,
and (ii) the Administrative Agent and the Borrower shall negotiate in good faith
a modification of any such covenant(s) or sections so that the economic effect
of the calculation of such covenant(s) or sections using GAAP as so changed is
as close as feasible to what the economic effect of the calculation of such
covenant(s) or sections would have been using GAAP in effect as of the Financial
Statement Date.
(d) For purposes of Sections 9.1-9.8 hereof, Consolidated Total
Capitalization and the Section 9.6 Sum (as such term is defined in Section 9.6
hereof) shall be adjusted (without double-counting) to include the Eligible Cash
1031 Proceeds from any Real Estate disposed of by the Borrower, a Guarantor or
any of their respective Subsidiaries and for which the results have been
deducted pursuant to Section 9.9(b).
Section 10. CONDITIONS TO THE CLOSING DATE. The obligations of the
Lenders to make the initial Revolving Credit Loans, of the Swing Lender to make
the initial Swing Loans and of the Fronting Bank to issue any initial Letters of
Credit shall be subject to the satisfaction of the following conditions
precedent:
Section 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.
Section 10.2. CERTIFIED COPIES OF ORGANIZATION DOCUMENTS. The
Administrative Agent shall have received (i) from the Borrower and each of the
Subsidiary Guarantors a copy, certified as of the Closing Date by a duly
authorized officer of such Person (or its general partner, if such Person is a
partnership, or its managing member, if such Person is a limited liability
company) to be true and complete, of each of its certificate of limited
partnership, agreement of limited partnership, incorporation documents, by-laws,
certificate of formation, operating agreement and/or other organizational
documents as in effect on the Closing Date; provided that any Subsidiary
Guarantor which has previously delivered such organizational documents may
satisfy this condition by providing a certificate of a duly authorized officer
of such Person as to the absence of changes or as to the changes, if any, to
those organizational documents previously delivered, and (ii) from MCRC a copy,
certified as of a date within thirty (30) days prior to the Closing Date by the
appropriate officer of the State of Maryland to be true and correct, of the
corporate charter of MCRC, in each case along with any other organization
documents of the Borrower and each Subsidiary Guarantor (and its general
partner, if such Person is a partnership, or its managing member, if such Person
is a limited liability company) or
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MCRC, as the case may be, and each as in effect on the date of such
certification.
Section 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.
Section 10.4. INCUMBENCY CERTIFICATE; AUTHORIZED SIGNERS. The
Administrative Agent shall have received from each of the Borrower, MCRC and the
Subsidiary Guarantors an incumbency certificate, dated as of the Closing Date,
signed by a duly authorized officer of such Person and giving the name of each
individual who shall be authorized: (a) to sign, in the name and on behalf of
such Person, each of the Loan Documents to which such Person is or is to become
a party as of the Closing Date; (b) in the case of the Borrower, to make Loan
Requests, 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.
Section 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. For any Person that
has converted from one form of entity to another (e.g., from being a limited
partnership to a limited liability company) since the time that it provided the
Administrative Agent with a Title Policy for an Unencumbered Property, such
Person shall deliver to the Administrative Agent recorded evidence that title to
such Unencumbered Property is vested in such Person as the new form of entity.
Such evidence shall be either a deed or an amendment to the organizational
documents of such Person, together with evidence of the continued effectiveness
of such Title Policy.
Section 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
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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.
Section 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.
Section 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) Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, as counsel to the Borrower,
the Subsidiary Guarantors, MCRC and their respective Subsidiaries, with respect
to New York and New Jersey law and certain matters of Delaware law, (b) Ballard,
Spahr, Xxxxxxx and Ingersoll, as counsel to MCRC, with respect to Maryland and
District of Columbia law, (c) Xxxxxxx & Xxxx, as counsel to the Borrower and the
Subsidiary Guarantors with respect to Connecticut law, (d) XxXxxxxxxx, Keen &
Xxxxxxx, 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 and California law, and (f)
Sallquist & Xxxxxxxx, as counsel to the Borrower and the Subsidiary Guarantors
with respect to Arizona law.
Section 10.9. TAX LAW COMPLIANCE. Each of the Lenders and the
Administrative Agent shall also have received from Seyfarth Xxxx, as counsel to
the Borrower and MCRC, a favorable opinion addressed to the Lenders and the
Administrative Agent, in form and substance satisfactory to each of the Lenders
and the Administrative Agent, with respect to the qualification of MCRC as a
REIT and certain other tax laws matters.
Section 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. Each of the Subsidiary Guarantors that executed and
delivered a Subsidiary Guaranty under the Original Agreement shall have executed
and delivered to the Administrative Agent a reaffirmation of such Subsidiary
Guaranty in form and substance reasonably satisfactory to the
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Administrative Agent confirming that such Subsidiary Guaranty remains in full
force and effect and continues to guaranty the Obligations hereunder.
Section 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.
Section 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.
Section 10.13. FEES. The Borrower shall have paid to the Administrative
Agent, for the accounts of the Lenders, Fleet National Bank, 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.
Section 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 Section 9 hereof, the absence of any Default or
Event of Default, and the accuracy of all representations and warranties in all
material respects.
Section 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 Section 10.2 through
Section 10.8, Section 10.10 and Section 10.11.
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Section 10.16. NO DEFAULT UNDER ORIGINAL AGREEMENT. There shall exist no
Default or Event of Default under the Original Agreement.
Section 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:
Section 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. Each of the Lenders shall have
received a certificate of the Borrower as provided in Section 2.5(iv)(c) or
Section 2A.9.
Section 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.
Section 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.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("EVENTS OF DEFAULT") shall occur:
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(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 Section 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: Section 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); Section 7.6 (as to the legal
existence of MCRLP for which no period to cure is granted); Section 7.7 (as to
the legal existence and REIT status of MCRC for which no period to cure is
granted); Section 7.12; Section 7.21 within ten (10) days of the occurrence of
same; Section 8 (except with respect to Section 8.5 for Non-Material Breaches
only, or Section 8.6); or Section 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 Section 12) and such failure continues for thirty (30) days
(other than a Non-Material Breach (excluding Section 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 Section 12.1(d)).
(e) any representation or warranty of the Borrower or any Guarantor
or any of their respective Subsidiaries in this Agreement or any of the other
Loan Documents or in any other document or instrument delivered pursuant to or
in connection with this Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated (other
than a Non-Material Breach).
(f) the Borrower or any Guarantor or any of their respective
Subsidiaries shall (i) fail to pay at maturity, or within any applicable period
of grace or cure, any obligation for borrowed money or credit received (other
than current obligations in the ordinary course of business) or in respect of
any
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Capitalized Leases (x) in respect of any Recourse obligations or credit in an
aggregate amount in excess of $20,000,000 (determined in accordance with Section
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
Section 9.9 hereof), or (ii) fail to observe or perform any material term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing borrowed money or credit received (other than current
obligations in the ordinary course of business) or in respect of any Capitalized
Leases (x) in respect of any Recourse obligations or credit in an aggregate
amount in excess of $20,000,000 (determined in accordance with Section 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 Section 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.
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(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for a period of more than thirty (30) days, any uninsured final
judgment against the Borrower, any Guarantor or any of their respective
Subsidiaries that, with other outstanding uninsured final judgments,
undischarged, unsatisfied and unstayed, against the Borrower, any Guarantor or
any of their respective Subsidiaries exceeds in the aggregate $10,000,000 (other
than for a Permitted Event).
(j) any of the Loan Documents or any material provision of any Loan
Documents shall be canceled, terminated, revoked or rescinded otherwise than in
accordance with the terms thereof or with the express prior written agreement,
consent or approval of the Administrative Agent, or any Guaranty shall be
canceled, terminated, revoked or rescinded at any time or for any reason
whatsoever, or any action at law, suit or in equity or other legal proceeding to
make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be
commenced by or on behalf of the Borrower or any of its Subsidiaries or any
Guarantor or any of its Subsidiaries, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable
as to any material terms thereof, other than as any of the same may occur from a
Permitted Event permitted by this Agreement.
(k) any "Event of Default" or default (after notice and expiration of
any period of grace, to the extent provided, and if none is specifically
provided or denied, then for a period of thirty (30) days after notice), as
defined or provided in any of the other Loan Documents, shall occur and be
continuing.
(l) the Borrower or any ERISA Affiliate incurs any liability to the
PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate
amount exceeding $5,000,000, or the Borrower or any ERISA Affiliate is assessed
withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan
requiring aggregate annual payments exceeding $5,000,000, or any of the
following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA
Reportable Event, or a failure to make a required installment or other payment
(within the meaning of Section 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
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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 Section 6.16 or Section 7.20 is a matter
that constitutes a specific breach of a provision of this Section 12.1(l), the
breach of Section 6.16 or Section 7.20 shall not be a Non-Material Breach.
(m) Notwithstanding the provisions of Section 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 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 three (3)
of the five (5) Key Management Individuals (as defined in Section 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 Section 12.1(g)
or Section 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 Section 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
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Breach shall constitute a material breach after notice from the Administrative
Agent.
Section 12.2. TERMINATION OF COMMITMENTS. If any one or more Events of
Default specified in Section 12.1(g) or Section 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 Section 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 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.
Section 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 Section 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.
Section 13. SETOFF. Without demand or notice, during the continuance of
any Event of Default, any deposits (general or specific, time or demand,
provisional
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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, 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.
Section 14. THE ADMINISTRATIVE AGENT.
Section 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
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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 Section 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 in accordance with Section
14.11 by a writing signed by Required Lenders.
Section 14.2. EMPLOYEES AND AGENTS. The Administrative Agent may exercise
its powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Administrative Agent may utilize the services of such Persons as
the Administrative Agent in its sole discretion may reasonably determine, and
all reasonable fees and expenses of any such Persons shall be paid by the
Borrower.
Section 14.3. NO LIABILITY. Neither the Administrative Agent, nor any of
its shareholders, directors, officers or employees nor any other Person
assisting them in their duties nor any agent or employee thereof, shall be
liable for any waiver, consent or approval given or any action taken, or omitted
to be taken, in good faith by it or them hereunder or under any of the other
Loan Documents, or in connection herewith or therewith, or be responsible for
the consequences of any oversight or error of judgment whatsoever, except that
the Administrative Agent shall be liable for losses due to its willful
misconduct or gross negligence.
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Section 14.4. NO REPRESENTATIONS. Neither the Administrative Agent nor the
Syndication Agents 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 Agents 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 Agents 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
creditworthiness or financial condition of the Borrower or any of its
Subsidiaries or any Guarantor or any of the Subsidiaries or any tenant under a
Lease or any other entity. Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent, the Syndication Agents 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.
Section 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
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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 Section 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 Section 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.
Section 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.
Section 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 Section 15), and
liabilities of every nature and character arising out of or related to this
Agreement, the Notes, or
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any of the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Administrative Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused
by the Administrative Agent's or such Affiliate's willful misconduct or gross
negligence.
Section 14.8. ADMINISTRATIVE AGENT AS LENDER. In its individual capacity
as a Lender, JPMorgan shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the Loans made by it, and
as the holder of any of the Notes and as the purchaser of any Letter of Credit
Participations, as it would have were it not also the Administrative Agent.
Section 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 Section 14.9 it
shall promptly notify the other Lenders of the existence of such default,
Default or Event of Default.
Section 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 Section 25) of any such enforcement, the Lenders (including any
Lender which is not one of the Required Lenders) hereby agreeing to ratably and
severally indemnify and hold the Administrative Agent harmless from all
liabilities incurred in respect of all actions taken or omitted in accordance
with such directions other than actions taken in gross negligence or willful
misconduct, PROVIDED that the Administrative Agent need not comply with any such
direction to the extent that the Administrative Agent reasonably believes the
Administrative Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
Section 14.11. SUCCESSOR ADMINISTRATIVE AGENT. JPMorgan, or any successor
Administrative Agent, may resign as Administrative Agent at any time by
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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.
Subject to the next sentence, any such resignation or removal, the Required
Lenders shall have the right to appoint a successor Administrative Agent, which
is a Lender under this Agreement, PROVIDED that so long as no Default or Event
of Default has occurred and is continuing the Borrower shall have the right to
approve any successor Administrative Agent, which approval shall not be
unreasonably withheld. Notwithstanding the preceding sentence, upon the
resignation of JPMorgan as the Administrative Agent, the Borrower may elect a
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, if applicable, approved by
the Borrower, and shall have accepted such appointment, within thirty (30) days
after the retiring Administrative Agent's giving of notice of resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint any one
of the other Lenders as a successor Administrative Agent; PROVIDED that the
Administrative Agent shall have first submitted the names of two (2) Lenders to
the Borrower and, within ten (10) Business Days of such submission the Borrower
shall not have selected one of such Lenders as the successor Administrative
Agent. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring or removed Administrative Agent, and the retiring or
removed Administrative Agent shall be discharged from all further duties and
obligations as Administrative Agent under this Agreement. After any
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Section 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.
Section 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.
Section 15. EXPENSES. The Borrower agrees to pay (a) the reasonable
costs of incurred by JPMorgan and Fleet and the Arrangers in producing this
Agreement, the other Loan Documents and the other agreements and
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instruments mentioned herein, (b) the reasonable fees, expenses and
disbursements of one outside counsel to both the Administrative Agent and the
Syndication Agents, and one local counsel to the Administrative Agent and the
Syndication Agents, in each case incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, and amendments, modifications,
approvals, consents or waivers hereto or hereunder, (c) the reasonable fees,
expenses and disbursements of the Administrative Agent and the Syndication
Agents incurred by the Administrative Agent and the Syndication Agents 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 Agents 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 Agents, 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 Agents in
connection with any such enforcement, preservation proceedings or dispute)
incurred by any Lender or the Administrative Agent or the Syndication Agents 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 Section 15 shall survive payment or satisfaction
of payment of amounts owing with respect to the Notes.
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Section 16. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Administrative Agent, the Syndication Agents, the Arrangers and
each of the Lenders and the shareholders, directors, agents, officers,
subsidiaries and affiliates of the Administrative Agent, the Syndication Agents,
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 Section
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 Section 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 Agents, 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 Agents, 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 Agents, 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 Section 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 Section 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.
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Section 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 Agents, 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 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 Agents 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.
Section 18. ASSIGNMENT; PARTICIPATIONS; ETC.
Section 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) except in the
case of an assignment to a Lender or a Lender Affiliate, 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) except in the case
of an assignment to a Lender or a Lender Affiliate, each such assignment shall
be in a minimum amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, (d) unless the assigning Lender shall have assigned its entire
Commitment, each Lender shall have at all times an amount of its Commitment of
not less than $10,000,000 and (e) the parties to such assignment shall execute
and deliver to the Administrative Agent, for recording in the Register (as
hereinafter defined),
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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 Section 18.3, be released from its
obligations under this Agreement. If the consent of the Borrower is required
pursuant to this Section 18.1, and the Borrower does not respond to the
Administrative Agent's request for consent within ten (10) Business Days of
receipt of such written request, the consent shall be deemed given.
Section 18.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS;
COVENANTS. By executing and delivering an Assignment and Assumption, the parties
to the assignment thereunder confirm to and agree with each other and the other
parties hereto as follows: (a) other than the representation and warranty that
it is the legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto; (b) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of its Subsidiaries or any Guarantor
or any other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the Borrower or any of its
Subsidiaries or any Guarantor or any other Person primarily or secondarily
liable in respect of any of the Obligations of any of their obligations under
this Agreement or any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (c) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements referred to in Section 6.4 and Section 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
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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.
Section 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 Section 4.12, the assigning Lender agrees to
pay to the Administrative Agent a registration fee in the sum of $3,500.
Section 18.4. NEW NOTES. Upon its receipt of an Assignment and Assumption
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (a) record the information
contained therein in the Register, and (b) give prompt written notice thereof to
the Borrower and the Lenders (other than the assigning Lender). Within five (5)
Business Days after receipt of such notice, the Borrower, at its own expense,
(i) shall execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Assumption and, if the assigning Lender has retained some portion
of its obligations hereunder, a new Note to the order of the assigning Lender in
an amount equal to the amount retained by it hereunder and (ii) shall deliver an
opinion from counsel to the Borrower in substantially the form delivered on the
Closing Date pursuant to Section 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.
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Section 18.5. PARTICIPATIONS. Each Lender may sell participations to one
or more banks or other entities in all or a portion of such Lender's rights and
obligations under this Agreement and the other Loan Documents without notice or
consent of the Borrower, Administrative Agent or any other party hereto;
PROVIDED that (a) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder to the Borrower and the Administrative
Agent and the Lender shall continue to exercise all approvals, disapprovals and
other functions of a Lender, (b) the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers, amendments
or modifications of, or approvals under, the Loan Documents shall be the rights
to approve waivers, amendments or modifications that would reduce the principal
of or the interest rate on any Loans, extend the term (other than any extension
contemplated by the definition of "MATURITY DATE") or increase the amount of the
Commitment of such Lender as it relates to such participant, reduce the amount
of any fees to which such participant is entitled or extend any regularly
scheduled payment date for principal or interest, and (c) no participant shall
have the right to grant further participations or assign its rights, obligations
or interests under such participation to other Persons without the prior written
consent of the Administrative Agent.
Section 18.6. PLEDGE BY LENDER. Notwithstanding any other provision of
this Agreement, any Lender at no cost to the Borrower may at any time pledge or
assign a security interest in all or any portion of its interest and rights
under this Agreement (including all or any portion of its Notes) to any Person.
No such pledge or the enforcement thereof shall release the pledgor Lender from
its obligations hereunder or under any of the other Loan Documents.
Section 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.
Section 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 Section 7.10 hereof.
Section 18.9. SYNDICATION. The Borrower acknowledges that the
Administrative Agent and the Syndication Agents 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 Section 18, and the Borrower agrees to reasonably cooperate
with the
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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.
Section 18.10. DESIGNATED BANKS. Any Lender (each, a "DESIGNATING LENDER")
may at any time designate one Designated Bank to fund Competitive Bid Loans on
behalf of such Designating Lender subject to the terms of this Section 18.10 and
the provisions in Sections 18.1 and 18.5 shall not apply to such designation. No
Lender may designate more than one (1) Designated Bank. The parties to each such
designation shall execute and deliver to the Administrative Agent for its
acceptance a Designation Agreement. Upon such receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Bank, the Administrative Agent will accept
such Designation Agreement and will give prompt notice thereof to the Borrower,
whereupon, (i) the Borrower shall execute and deliver to the Designating Lender
a Designated Bank Note payable to the order of the Designated Bank, (ii) from
and after the effective date specified in the Designation Agreement, the
Designated Bank shall become a party to this Agreement with a right to make
Competitive Bid Loans on behalf of its Designating Lender pursuant to Section 2A
after the Borrower has accepted a Competitive Bid Loan (or portion thereof) of
such Designating Lender, and (iii) the Designated Bank shall not be required to
make payments with respect to any obligations in this Agreement except to the
extent of excess cash flow of such Designated Bank which is not otherwise
required to repay obligations of such Designated Bank which are then due and
payable; PROVIDED, HOWEVER, that regardless of such designation and assumption
by the Designated Bank, the Designating Lender shall be and remain obligated to
the Borrower, the Administrative Agent and the other Lenders for each and every
of the obligations of the Designating Lender and its related Designated Bank
with respect to this Agreement, including, without limitation, any
indemnification obligations hereunder and any sums otherwise payable to the
Borrower by the Designated Bank. Each Designating Lender shall serve as the
administrative agent of the Designated Bank and shall on behalf of, and to the
exclusion of, the Designated Bank: (i) receive any and all payments made for the
benefit of the Designated Bank and (ii) give and receive all communications and
notices and take all actions hereunder, including, without limitation, votes,
approvals, waivers, consents and amendments under or relating to this Agreement
and the other Loan Documents. Any such notice, communication, vote, approval,
waiver, consent or amendment shall be signed by the Designating Lender as
administrative agent for the Designated Bank and shall not be signed by the
Designated Bank on its own behalf but shall be binding on the Designated Bank to
the same extent as if actually signed by the Designated Bank. The Borrower, the
Administrative Agent and Lenders may rely thereon without any requirement that
the Designated Bank sign or acknowledge the same. No
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Designated Bank may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Bank.
Section 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 it 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 Xxxxxxx X.
Xxxxxx, Esq., Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 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, Fronting Bank or Swing Lender, to
it at JPMorgan Chase Bank, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx X. Xxxxxxxxxx, Vice President (Telecopy No. 212-270-3513) and Xxxxxxx
Xxxxx, Esq., Senior Vice President and Associate General Counsel (Telecopy No.
212-270-2873), with a copy to Xxxxxxx X. Xxxxxx, Esq., Xxxxxxx XxXxxxxxx LLP,
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other address for
notice as the Administrative Agent, Fronting Bank or Swing Lender shall last
have furnished in writing to the Person giving the notice; and
(c) if to any Lender, at the address set forth on Schedule 1.2
hereto, or such other address for notice as such Lender shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to the party to which it is directed, at the time of the receipt
thereof by such party or the sending of such facsimile and (ii) if sent by
registered or certified first-class mail, postage prepaid, return receipt
requested on the fifth Business Day following the mailing thereof.
Section 20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS
AGREEMENT AND EACH OF THE OTHER LOAN
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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 IN SECTION 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.
Section 21. HEADINGS. The captions in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
Section 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.
Section 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 Section 25.
Section 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 LOAN DOCUMENTS,
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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.
Section 25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
expressly provided in this Agreement, any acceptance, consent, approval or other
authorization required or permitted by this Agreement may be given, and any term
of this Agreement or of any of the other Loan Documents may be amended, and the
performance or observance by the Borrower or any Guarantor of any terms of this
Agreement or the other Loan Documents or the continuance of any default, Default
or Event of Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the written
consent of the Required Lenders.
Notwithstanding the foregoing, Unanimous Lender Approval shall be required
for any amendment, modification or waiver of this Agreement or the other Loan
Documents that:
(i) reduces or forgives any principal of any unpaid Loan or
Reimbursement Obligation 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 Reimbursement Obligation; or
(iii) changes the date fixed for any payment of principal of or
interest on any Loan or Reimbursement Obligation (including, without
limitation, any extension of the Maturity Date other than
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in accordance with the second sentence of the definition of "Maturity
Date") or any fees payable hereunder; or
(iv) changes the amount of any Lender's Commitment (other than
pursuant to an assignment permitted under Section 18.1 hereof) or
increases the amount of the Total Commitment, except as provided in
Section 2.2; or
(v) amends any of the covenants contained in Sections 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 Section 5; or
(vii) modifies this Section 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 Section 2 hereof; or
(ix) changes the rights, duties or obligations of the
Administrative Agent specified in Section 14 hereof (PROVIDED that no
amendment or modification to such Section 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.
Section 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
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jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
Section 27. TRANSITIONAL ARRANGEMENTS.
Section 27.1. ORIGINAL AGREEMENT SUPERSEDED. This Agreement shall
supersede the Original Agreement in its entirety, except as provided in this
Section 27 and Section 3.7. On the Closing Date, the rights and obligations of
the parties under the Original Agreement and the "Notes" defined therein shall
be subsumed within and be governed by this Agreement and the Notes; PROVIDED
HOWEVER, that any of the "Revolving Credit Loans" (as defined in the Original
Agreement) outstanding under the Original Agreement shall, for purposes of this
Agreement, be Revolving Credit Loans hereunder. The Lenders' interests in such
Revolving Credit Loans and participations in such Letters of Credit shall be
reallocated on the Closing Date in accordance with each Lender's applicable
Commitment Percentage.
Section 27.2. RETURN AND CANCELLATION OF NOTES. Upon its receipt of the
Revolving Credit Notes to be delivered hereunder on the Closing Date, each
Lender will promptly return to the Borrower, marked "Cancelled" or "Replaced",
the notes of the Borrower held by such Lender pursuant to the Original
Agreement.
Section 27.3 INTEREST AND FEES UNDER ORIGINAL AGREEMENT. All interest and
all commitment, facility and other fees and expenses owing or accruing under or
in respect of the Original Agreement shall be calculated as of the Closing Date
(prorated in the case of any fractional periods), and shall be paid on the
Closing Date in accordance with the method specified in the Original Agreement,
as if the Original Agreement were still in effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGES TO FOLLOW]
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: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SIGNATURE PAGE TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
JPMORGAN CHASE BANK
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxx
-------------------------------------
Name: Xxxxx X. Xxx
Title: Authorized Officer
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By: /s/ Will X. Xxxxxx, Xx.
-------------------------------------
Name: Will X. Xxxxxx, Xx.
Title: Principal
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ R. Xxxxxxx Xxxxxxxxxxxxx
-------------------------------------
Name: R. Xxxxxxx Xxxxxxxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx Xx,
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx Xx.
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director, Capital Markets
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
CITICORP NORTH AMERICA, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Director, Global Loan Products
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BAYERISCHE LANDESBANK
CAYMAN ISLANDS BRANCH
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: First Vice President and
Manager of Real Estate
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
CHEVY CHASE BANK, F.S.B.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Group Vice President
SIGNATURE PAGE TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SCHEDULE 1.2
Lender Commitment Amount Commitment Percentage
------ ----------------- ---------------------
JPMorgan Chase Bank $ 56,000,000 9.3333%
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fleet National Bank $ 56,000,000 9.3333%
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Bank of America, N.A. $ 56,000,000 9.3333%
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Commerzbank AG, New York and $ 56,000,000 9.3333%
Cayman Islands Branches
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxx Fargo Bank, National Association $ 56,000,000 9.3333%
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
The Bank of Nova Scotia $ 45,000,000 7.50%
Real Estate Banking, New York Agency
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank One, NA $ 45,000,000 7.50%
One First National Plaza
Suite 0151, 1-14
Chicago, IL 60670
Citicorp North America, Inc. $ 45,000,000 7.50%
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Wachovia Bank, National Association $ 45,000,000 7.50%
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
PNC Bank, National Association $ 35,000,000 5.8333%
Xxx Xxxxx Xxxxxx Xxxx.
Xxxx Xxxxxxxxx, XX 00000
SunTrust Bank $ 35,000,000 5.8333%
0000 Xxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Bayerische Landesbank $ 25,000,000 4.1667%
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Lender Commitment Amount Commitment Percentage
------ ----------------- ---------------------
Deutsche Bank Trust Company Americas $ 25,000,000 4.1667%
Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chevy Chase Bank, F.S.B. $ 20,000,000 3.3333%
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, XX 00000
------------- ------
TOTAL $ 600,000,000 100%
