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EXECUTION VERSION

 

 

J.P. Morgan

 

 

THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT

 

among

 

MACK-CALI REALTY, L.P.

 

and

 

JPMORGAN CHASE BANK, N.A.

BANK OF AMERICA, N.A.

 

and

 

OTHER LENDERS WHICH MAY BECOME

PARTIES TO THIS AGREEMENT

 

with

 

JPMORGAN CHASE BANK, N.A.

AS ADMINISTRATIVE AGENT, SWING LENDER AND FRONTING BANK,

 

and

 

BANK OF AMERICA, N.A., AS SYNDICATION AGENT,

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

US BANK NATIONAL ASSOCIATION and

DEUTSCHE BANK SECURITIES INC.,

AS DOCUMENTATION AGENTS,

 

and

 

SUNTRUST BANK, PNC BANK, NATIONAL ASSOCIATION,

CITICORP NORTH AMERICA, INC., COMERICA BANK,

THE BANK OF NEW YORK MELLON, CAPITAL ONE, N.A. AND

THE BANK OF TOKYO MITSUBISHI UFJ, LTD., AS MANAGING AGENTS,

 

and

 

J.P. MORGAN SECURITIES LLC

and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS

 

Dated as of October 21, 2011

 

 

 

 

 


 

 

TABLE OF CONTENTS

 

 

Section

 

Page

 

 

 

§1.

DEFINITIONS AND RULES OF INTERPRETATION

1

 

 

 

§1.1.

Definitions

1

§1.2.

Rules of Interpretation

29

 

 

 

§2.

THE CREDIT FACILITY

30

 

 

 

§2.1.

Commitment to Lend

30

§2.2.

Increase of Total Commitment

33

§2.3.

The Notes

33

§2.4.

Interest on Revolving Credit Loans and Swing Loans;

 

 

Fees

34

§2.5.

Requests for Revolving Credit Loans and Swing Loans

36

§2.6.

Conversion Options

37

§2.7.

Funds for Revolving Credit Loans and Swing Loans

38

§2.8.

Repayment of the Revolving Credit Loans and Swing

 

 

Loans

40

§2.9.

Optional Repayments of Revolving Credit Loans

 

 

and Swing Loans

40

§2.10.

Reduction of Total Commitment

40

 

 

 

§2A.

COMPETITIVE BID LOANS.

41

 

 

 

§2A.1.

The Competitive Bid Options.

41

§2A.2.

Competitive Bid Loan Accounts: Competitive

 

 

Bid Notes.

41

§2A.3.

Competitive Bid Quote Request; Invitation for

 

 

Competitive Bid Quotes.

42

§2A.4.

Alternative Manner of Procedure.

43

§2A.5.

Submission and Contents of Competitive Bid Quotes.

43

§2A.6.

Notice to Borrower.

44

§2A.7.

Acceptance and Notice by Borrower

 

 

and Administrative Agent.

45

§2A.8.

Allocation by Administrative Agent.

45

§2A.9.

Funding of Competitive Bid Loans.

46

§2A.10.

Funding Losses.

46

§2A.11.

Repayment of Competitive Bid Loans; Interest.

46

§2A.12.

Optional Repayment of Competitive Bid Loans.

46

 

 

 


 

 

 

 

Section

 

Page

 

 

 

§3.

LETTERS OF CREDIT

47

 

 

 

§3.1.

Letter of Credit Commitments

47

§3.2.

Reimbursement Obligation of the Borrower

48

§3.3.

Letter of Credit Payments; Funding of a Loan

49

§3.4.

Obligations Absolute

49

§3.5.

Reliance by Issuer

50

§3.6.

Letter of Credit Fee

50

§3.7.

Existing Letters of Credit

50

§3.8.

Letter of Credit Collateral Account

51

 

 

 

§4.

CERTAIN GENERAL PROVISIONS

52

 

 

 

§4.1.

Funds for Payments

52

§4.2.

Computations

52

§4.3.

Inability to Determine LIBOR Rate

52

§4.4.

Illegality

53

§4.5.

Additional Costs, Etc.

53

§4.6.

Capital Adequacy

55

§4.7.

Certificate

55

§4.8.

Indemnity

55

§4.9.

Interest During Event of Default

56

§4.10

Reasonable Efforts to Mitigate

56

§4.11

Replacement of Lenders

56

§4.12

Defaulting Lenders

57

§4.13

Taxes

59

 

 

 

§5.

GUARANTIES

63

 

 

 

§5.1.

Guaranties

61

§5.2.

Subsidiary Guaranty Proceeds

63

 

 

 

§6.

REPRESENTATIONS AND WARRANTIES

64

 

 

 

§6.1.

Authority; Etc.

64

§6.2.

Governmental Approvals

67

§6.3.

Title to Properties; Leases

67

§6.4.

Financial Statements

68

§6.5.

Fiscal Year

68

§6.6.

Franchises, Patents, Copyrights, Etc.

68

§6.7.

Litigation

68

§6.8.

No Materially Adverse Contracts, Etc.

68

§6.9.

Compliance With Other Instruments, Laws, Etc

69

§6.10.

Tax Status

69

§6.11.

No Event of Default; No Materially Adverse Changes

69

 

 

(ii)


 

 

 

 

 

Section

 

Page

 

 

 

§6.12.

Investment Company Acts

70

§6.13.

Absence of UCC Financing Statements, Etc.

70

§6.14.

Absence of Liens.

70

§6.15.

Certain Transactions

70

§6.16.

Employee Benefit Plans

70

§6.17.

Regulations U and X

72

§6.18.

Environmental Compliance

72

§6.19.

Subsidiaries

73

§6.20.

Loan Documents

73

§6.21.

REIT Status

74

§6.22.

Subsequent Property Owning Subsidiaries

74

§6.23.

Anti-Terrorism Laws

74

 

 

 

§7.

AFFIRMATIVE COVENANTS OF THE BORROWER

74

 

 

 

§7.1.

Punctual Payment

75

§7.2.

Maintenance of Office

75

§7.3.

Records and Accounts

75

§7.4.

Financial Statements, Certificates and Information

75

§7.5.

Notices

77

§7.6.

Existence of Borrower and Property Owning Subsidiaries;

 

Maintenanceof Properties

79

 

§7.7.

Existence of MCRC; Maintenance of REIT Status of

 

 

MCRC; Maintenance of Properties

79

§7.8.

Insurance

81

§7.9.

Taxes

81

§7.10.

Inspection of Properties and Books

81

§7.11.

Compliance with Laws, Contracts, Licenses,

 

 

and Permit

81

§7.12.

Use of Proceeds

82

§7.13.

Subsidiary Guarantors; Solvency

82

§7.14.

Further Assurances

83

§7.15.

Environmental Indemnification

83

§7.16.

Response Actions

84

§7.17.

Environmental Assessments

84

§7.18.

Employee Benefit Plans

84

§7.19.

No Amendments to Certain Documents

85

§7.20

Distributions in the Ordinary Course

85

 

 

 

§8.

CERTAIN NEGATIVE COVENANTS OF THE BORROWER

85

 

 

 

§8.1.

Restrictions on Indebtedness

85

§8.2.

Restrictions on Liens, Etc.

86

§8.3.

Merger, Consolidation and Disposition of Assets

87

§8.4.

Negative Pledge

89

 

 

 

 

 

(iii)


 

 

 

Section

 

Page

 

 

 

§8.5.

Compliance with Environmental Laws

90

§8.6.

Distributions

90

§8.7.

Employee Benefit Plans

90

§8.8.

Fiscal Year

91

 

 

 

§9.

FINANCIAL COVENANTS OF THE BORROWER

91

 

 

 

§9.1.

Leverage Ratio

91

§9.2.

Secured Indebtedness

91

§9.3.

Tangible Net Worth

91

§9.4.

[Intentionally Deleted]

92

§9.5.

Fixed Charge Coverage

92

§9.6.

Unsecured Indebtedness

92

§9.7.

Unencumbered Property Interest Coverage

92

§9.8.

[Intentionally Deleted]

92

§9.9.

Covenant Calculations

92

 

 

 

§10

CONDITIONS TO THE CLOSING DATE

93

 

 

 

§10.1.

Loan Documents

94

§10.2.

Certified Copies of Organization Documents

94

§10.3.

By-laws; Resolutions

94

§10.4.

Incumbency Certificate; Authorized Signers

94

§10.5.

Certificates of Insurance

94

§10.6.

Opinion of Counsel Concerning Organization and

 

 

Loan Documents

95

§10.7.

Tax Law Compliance

95

§10.8.

Certifications from Government Officials

95

§10.9.

Proceedings and Documents

95

§10.10.

Fees

95

§10.11.

Closing Certificate; Compliance Certificate

95

§10.A.

Subsequent Subsidiary Guarantors

96

 

 

 

§11.

CONDITIONS TO ALL BORROWINGS

96

 

 

 

§11.1

Representations True; No Event of Default;

 

 

Compliance Certificate

96

§11.2

No Legal Impediment

96

§11.3

Governmental Regulation

96

 

 

 

§12.

EVENTS OF DEFAULT; ACCELERATION; ETC.

96

 

 

 

§12.1.

Events of Default and Acceleration

96

§12.2.

Termination of Commitment

100

§12.3.

Remedies

100

 

 

(iv)


 

 

 

 

Section

 

Page

 

 

 

§13.

SETOFF

101

 

 

 

§14.

THE ADMINISTRATIVE AGENT

101

 

 

 

§14.1.

Authorization

101

§14.2.

Employees and Agents

102

§14.3.

No Liability

103

§14.4.

No Representations

103

§14.5.

Payments

103

§14.6.

Holders of Notes

104

§14.7.

Indemnity

104

§14.8.

Administrative Agent as Lender

104

§14.9.

Successor Administrative Agent

104

§14.10.

Notices

105

§14.11

Other Agents

105

 

 

 

§15.

EXPENSES

105

 

 

 

§16.

INDEMNIFICATION

106

 

 

 

§17.

SURVIVAL OF COVENANTS, ETC.

107

 

 

 

§18.

ASSIGNMENT; PARTICIPATIONS; ETC.

107

§18.1.

Conditions to Assignments by Lenders

107

§18.2.

Certain Representations and Warranties;

 

 

Limitations; Covenants

108

§18.3.

Register

109

§18.4.

New Notes

109

§18.5.

Participations

110

§18.6.

Pledge by Lender

111

§18.7.

Successors and Assigns; No Assignment by Borrower

111

§18.8

Disclosure

111

§18.9.

Syndication

111

§18.10.

Designated Banks

111

 

 

 

§19.

NOTICES, ETC.

112

 

 

 

§20.

GOVERNING LAW; CONSENT TO JURISDICTION

 

 

AND SERVICE

114

 

 

 

§21.

HEADINGS

115

 

 

 

§22.

COUNTERPARTS

115

 

 

 

(v)


 

 

 

 

Section

 

Page

 

 

 

§23.

ENTIRE AGREEMENT, ETC.

115

 

 

 

§24.

WAIVER OF JURY TRIAL AND CERTAIN

 

 

DAMAGE CLAIMS

115

 

 

 

§25.

CONSENTS, AMENDMENTS, WAIVERS, ETC.

116

 

 

 

§26.

SEVERABILITY

118

 

 

 

§27.

TRANSITIONAL ARRANGEMENTS

118

 

 

 

§27.1.

2004 Agreement Superseded

118

§27.2.

Return and Cancellation of Notes

118

§27.3.

Interest and Fees Under 2004 Agreement

118

§27.4

Existing Guaranties

118

 

 

 

§28.

USA PATRIOT ACT

118

 

 

 

§29.

USURY SAVINGS CLAUSE

119

 

 

 

§30.

CONFIDENTIALITY

119

 

 

 

 

(vi)


 

 

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

O-1

Form of U.S. Tax Compliance Certificate

O-2

Form of U.S. Tax Compliance Certificate

O-3

Form of U.S. Tax Compliance Certificate

O-4

Form of U.S. Tax Compliance Certificate

 

 

(vii)


 

 

 

SCHEDULES

 

SCHEDULE CBD

CBD Properties

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(a)

Unencumbered Properties

SCHEDULE 6.3(c)

Partially Owned Real Estate Holding Entities

SCHEDULE 6.7

Litigation

SCHEDULE 6.15

Certain Transactions

SCHEDULE 6.18

Environmental Compliance

SCHEDULE 6.19

Subsidiaries

 

 

(viii)


 

 

THIRD AMENDED AND RESTATED

REVOLVING CREDIT AGREEMENT

 

 

This THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “ Agreement ”) is made as of the 21st day of October, 2011, by and among MACK-CALI REALTY, L.P., a Delaware limited partnership (“ MCRLP ” or the “ Borrower ”), having its principal place of business at 343 Thornall Street, Edison, New Jersey 08837-2206, JPMORGAN CHASE BANK, N.A. (“ JPMorgan ”), having its principal place of business at 270 Park Avenue, New York, New York  10017, BANK OF AMERICA, N.A. (“ Bank of America ”), a national banking association having an address at 901 Main Street, Dallas, Texas  75202, and the other lending institutions party hereto or which may become parties hereto pursuant to §18 (individually, a “ Lender ” and collectively, the “ Lenders ”) and JPMORGAN CHASE BANK, N.A., as the swing lender, fronting bank and administrative agent for itself and each other Lender, and BANK OF AMERICA, N.A., as the syndication agent.

 

RECITALS

 

A.           The Borrower and its Subsidiaries are primarily engaged in the business of owning, purchasing, developing, constructing, renovating and operating office, office/flex, industrial/warehouse and multifamily residential properties in the United States.

 

B.           Mack-Cali Realty Corporation, a Maryland corporation (“ MCRC ”), is the sole general partner of MCRLP, holds in excess of 87% of the partnership interests in MCRLP as of the date hereof, is qualified to elect REIT status for income tax purposes, and has agreed to guaranty the obligations of the Borrower hereunder.

 

C.           The Borrower, certain of the Lenders, certain other lending institutions, and the Administrative Agent are parties to a Second Amended and Restated Revolving Credit Agreement dated as of November 23, 2004, as amended (the “2004 Agreement”), which amended and restated in its entirety an Amended and Restated Revolving Credit Agreement dated as of September 27, 2002 (the “ 2002 Agreement ”), which, in turn, amended and restated in its entirety that certain Revolving Credit Agreement dated as of April 16, 1998 (as amended, the “ 1998 Agreement ”).

 

D.           The Borrower, the Lenders and the Administrative Agent wish to amend and restate the 2004 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:

 

§1.            DEFINITIONS AND RULES OF INTERPRETATION .

 

§1.1.            Definitions .  The following terms shall have the meanings set forth in this §1 or elsewhere in the provisions of this Agreement referred to below:

 

 

 

 


 

 


 

1998 Agreement .  As defined in the recitals.

 

2002 Agreement .  As defined in the recitals.

 

2004 Agreement .  As defined in the recitals.

 

Absolute Competitive Bid Loan .  See §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.

 

Acquisition Property .  Any Real Estate that either (a) has been owned for fewer than six (6) fiscal quarters or (b) in the case of Real Estate developed by the Borrower or any Property Owning Subsidiary, has been in service for fewer than six (6) fiscal quarters, in each case ((a) or (b)) unless the Borrower has made a one-time election to no longer treat such Real Estate as an Acquisition Property for purposes of this Agreement.

 

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, any impairments, non-cash valuation charges or extraordinary items relating to such Unencumbered Property, (b) minority interests, not inconsistent with the wholly-owned Subsidiary requirements for Unencumbered Properties and (c) income taxes; plus (x) interest expense relating to such Unencumbered Property and (y) depreciation and amortization relating to such Unencumbered Property and (z) the noncash portion of executive stock award rights and stock purchase rights relating to the Unencumbered Property in question included in written executive employment agreements, written employee plans or other written non-monetary employment compensation provisions to the extent excluded from net income, as determined in accordance with GAAP; minus a recurring capital expense reserve equal to one and one-half percent (1.5%) of total revenue (excluding interest income) of such Unencumbered Property for such period, after adjustments to eliminate the effect of the straight-lining of rents affecting such Unencumbered Property.

 

Administrative Agent .  JPMorgan acting as administrative agent for the Lenders, or any successor administrative agent, as permitted by §14.

 

Administrative Agent’s Head Office .  The Administrative Agent’s head office located at 270 Park Avenue, New York, New York  10017, or at such other location as the Administrative Agent may designate from time to time pursuant to §19 hereof, or the office of any successor Administrative Agent permitted under §14 hereof.

 

 

 

-2-


 


 

Administrative Questionnaire .  An Administrative Questionnaire in a form supplied by the Administrative Agent.

 

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 Third 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 .  For any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (c) assuming that on such day a LIBOR Rate Loan was being made, the LIBOR Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the avoidance of doubt, the LIBOR Rate for any day shall be based on the rate appearing on the Reuters BBA Libor Rates Page 01 (or on any successor or substitute page of such page) at approximately 11:00 a.m. London time on such day.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the LIBOR Rate, respectively.

 

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 §2.1(b)(ii).

 

Anti-Terrorism Laws .  Any law, rule or regulation related to terrorism financing, economic sanctions or money laundering, including: 18 U.S.C. §§ 1956 and 1957; The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5332 and 12 U.S.C. §§ 1818(s), 1820b and 1951-1959), as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“ USA PATRIOT Act ”) of 2001 (Title III of Pub. L. 107-56), and their implementing regulations; the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended), the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq., as amended) and Executive Order 13224 (effective September 24, 2001), and their implementing regulations.

 

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.

 

 

 

-3-


 

 


 

Applicable Margin .  The applicable margin (if any) over the then Alternate Base Rate or LIBOR Rate, as applicable to the Revolving Credit Loan(s) in question, as set forth below, which is used in calculating the interest rate applicable to Revolving Credit Loans and which shall vary from time to time in accordance with MCRLP’s debt ratings, if any.  The Applicable Margin to be used in calculating the interest rate applicable to Alternate Base Rate Loans or Revolving Credit LIBOR Rate Loans shall vary from time to time in accordance with MCRLP’s then applicable (if any) (x) Moody’s debt rating and/or (y) S&P debt rating, as set forth below in this definition, and the Applicable Margin shall be adjusted effective on the next Business Day following any change in MCRLP’s Moody’s debt rating or S&P 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 Moody’s or S&P so long as such Persons are in the business of providing debt ratings for the REIT industry; provided   that if MCRLP fails to maintain at least one debt rating from Moody’s or S&P, the Applicable Margin shall be based upon an S&P rating of less than BBB- in the table below.  If at any time of determination of the Applicable Margin, (a) MCRLP has then current debt ratings from both Moody’s and S&P, then the Applicable Margin shall be based on the higher of such ratings and (b) MCRLP has then current debt ratings from only one of Moody’s or S&P, then the Applicable Margin shall be based on such rating.

 

The applicable debt ratings and the Applicable Margins are set forth in the following table:

 

S&P Rating

Moody’s Rating

Applicable Margin for Revolving Credit LIBOR Rate Loans

Applicable Margin for Alternate Base Rate Loans

No rating or less than BBB-

No rating or less than Baa3

1.85%

0.85%

BBB-

Baa3

1.50%

0.50%

BBB

Baa2

1.25%

0.25%

BBB+

Baa1

1.075%

0.075%

A- or higher

A3 or higher

1.00%

0%

 

Arrangers . J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

Assignment and Assumption .  See §18.1.

 

 

 

-4-


 


 

Bankruptcy Event . With respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

 

Borrower .  As defined in the preamble hereto.

 

Building .  Individually and collectively, the buildings, structures and improvements now or hereafter located on the Real Estate.

 

Business Day .  Any day on which banking institutions in New York, New York are open for the transaction of banking business and, in the case of LIBOR Rate Loans, also a day which is a LIBOR Business Day.

 

Capitalized Leases .  Leases under which the Borrower or any of its Subsidiaries or any Partially-Owned Entity is the lessee or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with GAAP.

 

Capitalized Unencumbered Property NOI .  As of any date of determination with respect to an Unencumbered Property (other than an Acquisition Property), an amount equal to the Revised Adjusted Unencumbered Property NOI for such Unencumbered Property for the most recent two (2) complete fiscal quarters multiplied by two (2), with the product being divided by 7.75%, except with respect to CBD Properties, which shall be divided by 6.75%; provided that if such Unencumbered Property has been owned for fewer than two (2) complete fiscal quarters, the Revised Adjusted Unencumbered Property NOI for such Unencumbered Property shall be calculated by using the actual results for the period that such Unencumbered Property has been owned and adjusting such results for a period of two (2) complete fiscal quarters.

 

CBD Property(ies) .  Collectively, (a) any Real Estate listed on Schedule CBD attached hereto, (b) any improved Real Estate which is located in the borough of Manhattan in New York, New York, Jersey City, New Jersey, or Washington, D.C. which is acquired or developed after the Closing Date, and (c) any other improved Real Estate which is located in markets with characteristics similar to those identified in clause (b) and is designated by the Agent and the Borrower as a CBD Property from time to time.

 

CERCLA .  See §6.18.

 

 

 

 

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Change in Law .  (a) The adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Fronting Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Fronting Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) and (b) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities (whether or not having the force of law and whether or not failure to comply therewith would be unlawful), in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated, implemented or issued.

 

Closing Date . October 21, 2011, which is the date on which all of the conditions set forth in §10 have been satisfied or waived in accordance with §25.

 

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, a percentage equal to such Lender’s Commitment divided by the Total Commitment.

 

Competitive Bid Loan Accounts .  See §2A.2(a).

 

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 §2A hereof.

 

Competitive Bid Margin .  See §2A.5(b)(iv).

 

Competitive Bid Notes .  See §2A.2(b).

 

Competitive Bid Quote .  An offer by a Lender to make a Competitive Bid Loan in accordance with §2A.5 hereof.

 

 

 

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Competitive Bid Quote Request .  See §2A.3.

 

Competitive Bid Rate .  See §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 §2.5.

 

Completed Swing Loan Request .  A loan request accompanied by all information required to be supplied under the applicable provisions of §2.5.

 

Consolidated or consolidated .  With reference to any term defined herein, shall mean that term as applied to the accounts of MCRC and its subsidiaries (including the Borrower and its Subsidiaries) or MCRLP and its subsidiaries, as the case may be, consolidated in accordance with GAAP, excluding the effects of consolidation of investments in non-wholly owned subsidiaries under Accounting Standard Codification 810 of the Financial Accounting Standards Board.

 

Consolidated Adjusted Net Income .  For any period, an amount equal to the consolidated net income of MCRC, the Borrower and their respective Subsidiaries for such period, as determined in accordance with GAAP, before (a) gains (or losses) from the sale of real property or interests therein, debt restructurings, extinguishment or forgiveness of debt, write-ups or write-downs, deduction of acquisition costs for consummated acquisitions, non-cash valuation charges and other extraordinary or non-recurring items, (b) minority interest of said Persons in other Persons and (c) income taxes; plus (w) interest expense, (x) depreciation and amortization, (y) the noncash portion of executive stock award rights and stock purchase rights included in written executive employment agreements, written employee plans or other written non-monetary employment compensation provisions, and (z) certain non-recurring cash payments made pursuant to certain written employment agreements, written employee plans or other written employment compensation provisions with key management individuals existing as of the date hereof and described on Schedule EMPL hereto and their successors (as such agreements, plans and provisions may be amended from time to time) in an amount not to exceed $20,000,000 in the aggregate during any fiscal year; minus a recurring capital expense reserve in an amount equal to one and one-half percent (1.5%) of consolidated total revenue (excluding interest income) of MCRC, the Borrower and their respective Subsidiaries; all after adjustments to eliminate the effect of the straight-lining of rents; and all after adjustments for unconsolidated partnerships, joint ventures and other entities.

 

Consolidated Capitalized NOI .  As of any date of determination, an amount equal to Revised Consolidated Adjusted Net Income for the most recent two (2) completed fiscal quarters multiplied by two (2), with the product being divided by 7.75%, except with respect to CBD Properties, which shall be divided by 6.75%; provided that if any Real Estate has been owned for fewer than two (2) complete fiscal quarters, the Revised Consolidated Adjusted Net Income for such Real Estate shall be calculated by using the actual results for the period that such Real Estate has been owned and adjusting such results for a period of two (2) complete fiscal quarters.

 

 

 

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Consolidated Fixed Charges .  For any fiscal period, the sum of (a) Consolidated Total Interest Expense, plus (b) the aggregate amount of all scheduled principal payments on all Indebtedness of MCRC, the Borrower and their respective Subsidiaries required to be made during such period, excluding optional prepayments and balloon principal payments due at maturity, plus (c) the aggregate of all Distributions payable on the preferred stock of or other preferred beneficial interests in the Borrower, MCRC or any of their respective Subsidiaries during such period.

 

Consolidated Secured Indebtedness .  As of any date of determination, the aggregate principal amount of all Indebtedness of MCRC, the Borrower and their respective Subsidiaries outstanding at such date secured by a Lien on the Real Estate of such Person, without regard to Recourse.

 

Consolidated Tangible Net Worth. As of any date of determination, the Consolidated Total Capitalization minus Consolidated Total Liabilities.

 

Consolidated Total Capitalization .  As of any date of determination, with respect to MCRC, the Borrower and their respective Subsidiaries determined on a consolidated basis in accordance with GAAP, the sum (without double-counting) of:

 

(a)           Consolidated Capitalized NOI (other than with respect to (1) Acquisition Properties and (2) Real Estate with a negative Consolidated Capitalized NOI), plus

 

(b)           the cost of all Acquisition Properties (after taking into account any impairments), including all costs incurred by the Borrower in connection with the development of any Acquisition Properties, plus

 

(c)           the value of Unrestricted Cash and Cash Equivalents (excluding until forfeited or otherwise entitled to be retained by the Borrower or its Subsidiaries, tenant security and other restricted deposits); provided that no such Unrestricted Cash and Cash Equivalents will be added to Consolidated Total Capitalization if such Unrestricted Cash and Cash Equivalents have been deducted from Consolidated Total Liabilities or Consolidated Secured Indebtedness in the calculation of the financial covenants in §9.1 or §9.2 of this Agreement, plus

 

(d)           the aggregate costs (after taking into account any impairments) incurred and paid to date by the Borrower and its Subsidiaries with respect to Construction-In-Process, plus

 

(e)           the value of Indebtedness of third parties to the Borrower and its Subsidiaries for borrowed money which is secured by mortgage liens on real estate (valued in accordance with GAAP at the book value of such Indebtedness and not then more than 90 days past due or declared by the Borrower or its relevant Subsidiary to be past due), plus

 

(f)           the actual net cash investment by the Borrower and its Subsidiaries in any Other Investments (wherein any such Other Investment (x) does not have any Indebtedness that is then more than 90 days past due or (y) has not been declared to be in default of any monetary or material monetizable obligations), plus

 

 

 

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(g)           the book value of Unimproved Non-Income Producing Land plus

 

(h)           the value of Eligible Cash 1031 Proceeds;

 

provided that the value of each of the foregoing items comprising Consolidated Total Capitalization (other than Eligible Cash 1031 Proceeds) shall be subject to the following capped amounts for determining Consolidated Total Capitalization:

 

 

(i)

the book value of Unimproved Non-Income Producing Land shall be limited to ten (10%) percent of Consolidated Total Capitalization;

 

 

(ii)

investments in Other Investments shall be limited to fifteen (15%) percent of Consolidated Total Capitalization;

 

 

(iii)

the aggregate Project Costs of all Construction-in-Process shall be limited to fifteen (15%) percent of Consolidated Total Capitalization.  For purposes hereof, Construction-in-Process shall not include so-called “build to suit” properties which are seventy-five (75%) percent pre-leased (by rentable square foot) and a property shall continue to be valued (for financial covenant compliance purposes) as Construction-in-Process until the end of four (4) consecutive calendar quarters following substantial completion of such property;

 

 

(iv)

the value of Indebtedness of third parties to the Borrower, MCRC, or their Subsidiaries for borrowed money which is unsecured or is secured by mortgage liens (valued at the book value of such Indebtedness) shall be limited to fifteen (15%) percent of Consolidated Total Capitalization;

 

 

(v)

the investments set forth in clauses (i) through (iv) above, taken in the aggregate, shall be limited to thirty (30%) percent of Consolidated Total Capitalization; and

 

 

(vi)

investments in Real Estate, other than (x) office, office flex, and industrial/warehouse properties and (y) any such other Real Estate that is part of a mixed-use development consisting of at least 50% office and/or industrial properties (by leasable square footage of such development), taken in the aggregate, shall be limited to fifteen (15%) percent of Consolidated Total Capitalization.

 

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 but excluding non-cash interest expense in respect of convertible debt.

 

 

 

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Consolidated Total Liabilities .  As of any date of determination, without double-counting, all liabilities of MCRC, the Borrower and their respective Subsidiaries, including guaranties of payment for any Other Investment, determined on a consolidated basis in accordance with GAAP and classified as such on the consolidated balance sheet of MCRC, the Borrower and their respective Subsidiaries, and all Indebtedness of MCRC, the Borrower and their respective Subsidiaries, whether or not so classified (excluding, to the extent otherwise included in Consolidated Total Liabilities, restricted cash held on account of tenant security and other restricted deposits).

 

Consolidated Total Unsecured Interest Expense .  For any fiscal period, Consolidated Total Interest Expense with respect to Consolidated Unsecured Indebtedness only for such period.

 

Consolidated Unsecured Indebtedness .  As of any date of determination, the aggregate principal amount of all Unsecured Indebtedness of MCRC, the Borrower and their respective Subsidiaries outstanding at such date, including without limitation the aggregate principal amount of all the Obligations under this Agreement as of such date, determined on a consolidated basis in accordance with GAAP, without regard to Recourse.

 

Construction-In-Process .  Any Real Estate for which the Borrower, any of the Borrower’s Subsidiaries or any Partially-Owned Entity is actively pursuing construction, renovation, or expansion of Buildings and, except for purposes of clause (iii) to the proviso in the definition of Consolidated Total Capitalization in §1.1 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 §2.6.

 

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.

 

Defaulting Lender .  Any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion of its participations in Letters of Credit or Swing Loans or (iii) pay over to any Lender Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or any Lender Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Lender Party, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Lender Party’s receipt of such certification in form and substance satisfactory to it and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower, the Fronting Bank, the Swing Lender and each Lender.

 

 

 

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Designated Bank .  A special purpose entity that (i) shall have become a party to this Agreement pursuant to §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 §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 that is reasonably likely to have a material adverse effect on the value of such Real Estate.

 

Distribution .

 

 

    (i)   with respect to the Borrower or its Subsidiaries, any dividend or distribution of cash or other cash equivalent, directly or indirectly, to the partners or other equity interest holders of the Borrower or its Subsidiaries in respect of such partnership or other equity interest or interests so characterizable; or any other distribution on or in respect of any partnership interests of the Borrower or its Subsidiaries; and

 

 

 

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    (ii)   with respect to MCRC, the declaration or payment of any cash dividend or distribution on or in respect of any shares of any class of capital stock of MCRC.

 

Dollars or $ .  Dollars in lawful currency of the United States of America.

 

Drawdown Date .  The date on which any 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 §2.6.

 

Eligible Assignee .  Any of (a) a commercial bank organized under the laws of the United States, or any State thereof or the District of Columbia, and having total assets in excess of $1,000,000,000; (b) a savings and loan association or savings bank organized under the laws of the United States, or any State thereof or the District of Columbia, and having total assets in excess of $1,000,000,000, calculated in accordance with GAAP; (c) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the “ OECD ”), or a political subdivision of any such country, and having total assets in excess of $1,000,000,000, provided that such bank is acting at all times with respect to this Agreement through a branch or agency located in the United States of America, (d) the central bank of any country which is a member of OECD, (e) a financial institution reasonably acceptable to the Administrative Agent which is regularly engaged in making, purchasing or investing in loans and having total assets in excess of $300,000,000 and (f) a Lender or a Lender Affiliate; provided that, in any event, Eligible Assignees shall not include any Defaulting Lender or the Borrower, MCRC and their respective Subsidiaries and Affiliates.

 

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 under customary prudent lending requirements.  The Eligible Ground Leases as of the date of this Agreement are listed on Schedule EG .

 

 

 

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Embargoed Person .  Any party that (i) is publicly identified on the most current list of “Specially Designated Nationals and Blocked Persons” published by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), is a “designated national” pursuant to OFAC’s Cuban Assets Control Regulations (31 C.F.R. 515.305), or resides, is organized or chartered, or has a place of business in a country or territory that is prohibited pursuant to the OFAC sanctions programs or (ii) is publicly identified as prohibited from doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act, or any other law, rule or regulation.

 

Employee Benefit Plan .  Any employee benefit plan within the meaning of §3(3) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate, other than a Multiemployer Plan.

 

Environmental Laws .  See §6.18(a).

 

ERISA .  The Employee Retirement Income Security Act of 1974, as amended and in effect from time to time.

 

ERISA Affiliate .  Any Person which is treated as a single employer with the Borrower under §414 of the Code.

 

ERISA Reportable Event .  A reportable event with respect to a Guaranteed Pension Plan within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the requirement of notice has not been waived.

 

Eurocurrency Reserve Rate .  For any day with respect to a LIBOR Rate Loan, the weighted average of the rates (expressed as a decimal) at which all of the Lenders subject thereto would be required to maintain reserves under Regulation D of the Board of Governors of the Federal Reserve System (or any successor or similar regulations relating to such reserve requirements) against “Eurocurrency Liabilities” (as that term is used in Regulation D), if such liabilities were outstanding.  The Eurocurrency Reserve Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Rate.

 

Event of Default .  See §12.1.

 

Excluded Taxes .  Any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under § 4.11) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to § 4.13, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with § 4.13(g) and (d) any U.S. federal withholding Taxes imposed under FATCA.

 

 

 

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Facility Fee .  See §2.4(f).

 

FATCA .  Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.

 

Federal Funds Effective Rate . For any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

Fee Letter .  See §2.4(d).

 

Financial Statement Date .  With respect to the Borrower, MCRC and their respective subsidiaries, December 31, 2010.

 

Fitch .  Fitch Ratings, a division of Fitch, Inc., and its successors.

 

Foreign Lender .  (a) If the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.

 

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 and non-cash valuation charges.

 

GAAP .  Generally accepted accounting principles in effect from time to time in the United States, consistently applied.

 

 

 

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Governmental Authority .  The government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

Guaranteed Pension Plan .  Any employee pension benefit plan within the meaning of §3(2) of ERISA maintained or contributed to by the Borrower or MCRC, as the case may be, or any ERISA Affiliate of any of them the benefits of which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.

 

Guaranties .  Collectively, (i) the MCRC Guaranty, (ii) any Subsidiary Guaranty, and (iii) any other guaranty of the Obligations made by an Affiliate of the Borrower in favor of the Administrative Agent and the Lenders.

 

Guarantors .  Collectively, MCRC, any 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.  From and after the release of the Guaranty of any Subsidiary Guarantor pursuant to §5 below, such Subsidiary Guarantor shall no longer be considered a “Guarantor” for purposes of this Agreement.

 

Hazardous Substances .  See §6.18(b).

 

Indebtedness .  All obligations, contingent and otherwise, that in accordance with GAAP should be classified upon the obligor’s balance sheet as liabilities, including, without limitation, (a) all obligations for borrowed money and similar monetary obligations, whether direct or indirect; (b) all liabilities secured by any mortgage, pledge, negative pledge, security interest, lien, charge, or other encumbrance existing on property owned or acquired subject thereto, whether or not the liability secured thereby shall have been assumed; (c) all obligations under any Capitalized Lease (determined in accordance with §9.9) or any Synthetic Lease; (d) all guarantees for borrowed money, endorsements and other contingent obligations, whether direct or indirect, (without double counting and in accordance with §9.0) in respect of indebtedness or obligations of others, including any obligation to supply funds (including partnership obligations and capital requirements) to or in any manner to invest in, directly or indirectly, the debtor, to purchase  indebtedness, or to assure the owner of indebtedness against loss, through an agreement to purchase goods, supplies, or services for the purpose of enabling the debtor to make payment of the indebtedness held by such owner or otherwise, (e) the obligations to reimburse the issuer in respect of any letters of credit (f) obligations in respect of banker acceptances, (g) obligations for the deferred purchase price of property to the extent of the value of such property (excluding accounts payable and expenses arising in the ordinary course of business), (h) payment obligations in respect of interest rate contracts, financial derivatives contracts and foreign exchange contracts, net of liabilities owed by the counterparties thereon, and (i) to the extent not otherwise included, obligations of the Borrower under so-called forward equity purchase contracts to the extent that such obligations are not payable solely in equity interests in MCRC; but, in any case, excluding Other Investments.

 

 

 

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Indemnified Taxes .  (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

 

Intercompany Secured Debt .  See §8.2(vi).

 

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 (if available from all Lenders) or 12 (if available from all Lenders) 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 §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 an Alternate Base Rate Loan would end on a day that is not a Business Day, that Interest Period shall end on the next succeeding Business Day;

 

(B)           if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day;

 

(C)           if the Borrower shall fail to give a Conversion Request as provided in §2.6, the Borrower shall be deemed to have requested a continuation of the affected 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;

 

 

 

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(D)           any Interest Period relating to any LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to subparagraph (E) below, end on the last Business Day of a calendar month; and

 

(E)           any Interest Period that would otherwise extend beyond the Maturity Date shall end on the Maturity Date.

 

Investment Grade Credit Rating .  A long-term unsecured, non-credit enhanced debt rating (a) from Moody’s of Baa3 or higher or (b) from S&P of BBB- 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.

 

JPMorgan .  As defined in the recitals.

 

L/C Exposure .  At any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all outstanding Reimbursement Obligations.  The LC Exposure of any Lender at any time shall be its Commitment Percentage of the total LC Exposure at such time.

 

Leases .  Leases, licenses and agreements, whether written or oral, relating to the use or occupation of space in or on the Buildings or on the Real Estate by persons other than the Borrower, its Subsidiaries or any Partially-Owned Entity, provided that “Leases” shall include any such lease, license or other such agreement with a Partially-Owned Entity if such lease, license or other agreement is at a market level rent and related tenant charges, which are required to be paid monthly or, in the case of non-rent tenant charges, when usually and customarily required to be paid by other tenants of the same Real Estate (and at least annually).

 

Lender Affiliate .  With respect to any Lender, an Affiliate of such Lender.

 

 

 

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Lender Party .  The Administrative Agent, the Fronting Bank, the Swing Lender or any other Lender.

 

Lenders .  Collectively, the Administrative Agent, any other lenders which may provide additional commitments and become parties to this Agreement, and any other Person who becomes an assignee of any rights of a Lender pursuant to §18 or a Person who acquires all or substantially all of the stock or assets of a Lender.

 

Letter of Credit .  See §3.1.1.

 

Letter of Credit Application .  See §3.1.1.

 

Letter of Credit Collateral .  See §3.8.

 

Letter of Credit Collateral Account .  See §3.8.

 

Letter of Credit Fee .  See §3.6.

 

Letter of Credit Participation .  See §3.1.4.

 

LIBOR Breakage Costs .  In the case of any LIBOR Rate Loan, such loss, cost or expense to any Lender, which shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had the event described in §4.8 not occurred, at the LIBOR Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the market interest rate which such Lender would bid were it to reasonably bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market.

 

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 §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) equal to the rate appearing on Reuters BBA Libor Rates Page 01 (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as reasonably determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period.  In the event that such rate is not available at such time for any reason, then the “ LIBOR Rate ” with respect to such LIBOR Rate Loan for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

 

 

 

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In the event that the Board of Governors of the Federal Reserve System shall impose a reserve requirement with respect to LIBOR deposits of the Lenders, then for any period during which such reserve requirement shall apply, the LIBOR Rate shall be equal to the amount determined above divided by an amount equal to one (1.00) minus the Eurocurrency Reserve Rate.

 

LIBOR Rate Loan(s ).  Loans bearing interest calculated by reference to the LIBOR Rate.

 

Lien .  See §8.2.

 

Loan Documents .  Collectively, this Agreement, the 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.

 

Material Adverse Effect .  Any event or occurrence of whatever nature which:  (a) has a material adverse effect on the business, properties, operations or financial condition of (i) the Borrower or (ii) MCRC or (iii) the Borrower, MCRC 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.

 

Material Subsidiary .  Any (x) Property Owing Subsidiary that owns any Real Estate that the Borrower has elected to treat as an Unencumbered Property, (y) any Subsidiary Guarantor, or (z) any other Subsidiary of the Borrower or MCRC which contributes at least $10,000,000 to Consolidated Total Capitalization, other than any such Subsidiary that is only liable for Without Recourse obligations.

 

Maturity Date . October 21, 2015, or such earlier date on which the Loans shall become due and payable pursuant to the terms thereof.  The Borrower may, by written notice to the Administrative Agent given at least thirty (30) days but not more than one hundred and eighty (180) days prior to the Maturity Date, extend the Maturity Date for one (1) year, provided that no Default or Event of Default (other than a Non-Material Breach) shall have occurred and be continuing on the date of such notice and that the Borrower shall have paid an aggregate extension fee equal to 0.20% of the Total Commitment (to the Administrative Agent for the ratable benefit of the Lenders) on or prior to the scheduled Maturity Date.

 

 

 

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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 .  As defined in the recitals.

 

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 §7.7.

 

Moody’s .  Moody’s Investors Service, Inc., and its successors.

 

Multiemployer Plan .  Any multiemployer plan within the meaning of §3(37) of ERISA maintained or contributed to by the Borrower or MCRC, as the case may be, or any ERISA Affiliate.

 

Non-Material Breach .  A (i) breach of a representation or warranty or covenant contained in §6 or §7 (other than §7.1), (ii) breach of any other representation or warranty or covenant as to which such term “Non-Material Breach” is specifically applied, or (iii) Permitted Event; but only to the extent any such breach under (i) or (ii) or an event under (iii) (other than §7.1), neither (A) singularly or in conjunction with any other existing breaches or events under (iii), materially adversely affect the business, properties or financial condition of (x) MCRC; (y) MCRLP; or (z) the Borrower, MCRC and their Subsidiaries, taken as whole nor (B) singularly or in conjunction with any other existing breaches or events under (iii), materially adversely affect the ability of (x) MCRC; (y) MCRLP; or (z) the Borrower, MCRC 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 Property Owning Subsidiary shall be excluded from asset (but not liability) and income (but not loss) calculation under §9 which exclusions shall be evidenced in all compliance certificates provided as required by this Agreement.

 

A breach or event which may constitute a Non-Material Breach shall be identified when first known to the Borrower, MCRC 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, MCRC or any Subsidiary shall not be binding on the Lenders.

 

 

 

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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 MCRC.

 

Other Connection Taxes . With respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Investment .  An investment made by the Borrower, MCRC or any Subsidiary which has been or is designated by the Borrower at the time of investment or from time to time as an “Other Investment” (including an investment company); 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 clause (ii) to the proviso in the definition of Consolidated Total Capitalization in §1.1 hereof.  Notwithstanding anything contained in the foregoing definition to the contrary, an investment may still be an Other Investment if it provides for (i) guaranties of completion, (ii) guaranties of payment (which shall be included in Consolidated Total Liabilities), (iii) environmental guaranties and indemnities, and/or (iv) other typical recourse carve-outs from otherwise long-term, non-recourse debt, such as for fraud, waste, misappropriation of proceeds and material misrepresentations.

 

 

 

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Other Taxes .  All present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to § 4.11).

 

Parent .  With respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.

 

Partially-Owned Entity(ies) .  Any of the partnerships, joint ventures and other entities owning real estate assets (other than an Other Investment) in which MCRLP and/or MCRC collectively, directly or indirectly through its full or partial ownership of another entity, own less than 100% of the equity interests, whether or not such entity is required in accordance with GAAP to be consolidated with MCRLP for financial reporting purposes.

 

Participant .  See §18.5.

 

Participant Register .  See §18.5.

 

PBGC .  The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any successor entity or entities having similar responsibilities.

 

Permits .  All governmental permits, licenses, and approvals necessary for the lawful operation and maintenance of the Real Estate.

 

Permitted Event .  The election by the Borrower to exclude any Real Estate as an Unencumbered Property following a Bankruptcy Event with respect to the Property Owning Subsidiary that owns or leases such Real Estate; provided that the aggregate contribution to Consolidation Total Capitalization made by all Property Owning Subsidiaries subject to such Bankruptcy Event shall not exceed $50,000,000.  Notwithstanding the foregoing, upon the occurrence of any such Bankruptcy Event, the Borrower shall be deemed to have made such election, if permitted by this definition.

 

Permitted Investments .

 

(a)   direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;

 

 

 

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(b)   investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

 

(c)   investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $1,000,000,000;

 

(d)   fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and

 

(e)   money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.

 

Permitted Liens .  Liens, security interests and other encumbrances permitted by §8.2.

 

Person .  Any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any government (or any Governmental Authority).

 

Prime Rate .  The rate of interest per annum publicly announced from time to time by JPMorgan as its prime rate in effect at its office located at 270 Park Avenue, New York, New York; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

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).

 

Property Owning Subsidiary .  Any Subsidiary that owns or leases any Real Estate.

 

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. 5 dated as of December 20, 2002 between the Borrower and the Trustee, and by Supplemental Indenture No. 6 dated as of March 14, 2003 between the Borrower and the Trustee, and by Supplemental Indenture No. 7 dated as of June 12, 2003 between the Borrower and the Trustee, and by Supplemental Indenture No. 8 dated as of February 9, 2004 between the Borrower and the Trustee, and by Supplemental Indenture No. 9 dated as of March 22, 2004 between the Borrower and the Trustee, and by Supplemental Indenture No. 10 dated as of January 25, 2005 between the Borrower and the Trustee, and by Supplemental Indenture No. 12 dated as of November 30, 2005 between the Borrower and the Trustee, and by Supplemental Indenture No. 13 dated as of January 24, 2006 between the Borrower and Trustee, and by Supplemental Indenture No. 14 dated as of August 14, 2009 between the Borrower and Trustee, and as the Indenture may be further supplemented and/or amended from time to time.

 

 

 

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RCRA .  See §6.18.

 

Real Estate .  The fixed and tangible properties consisting of land, buildings and/or other improvements owned or ground-leased as a lessee by the Borrower, by any Subsidiary or by any other entity in which the Borrower is the holder of an equity interest (other than Other Investments) at the relevant time of reference thereto, including, without limitation, (i) the Unencumbered Properties at such time of reference, and (ii) the real estate assets owned or ground-leased as a lessee by each of the Partially-Owned Entities at such time of reference.

 

Recipient . (a) The Administrative Agent, (b) any Lender and (c) the Fronting Bank, as applicable.

 

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, 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).

 

Refunded Swing Loan .  See §2.1(b).

 

Refunding Date .  See §2.1(b).

 

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 §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 §3.2, such Reimbursement Obligation shall simultaneously with such drawing be converted to and become a Alternate Base Rate Loan as set forth in §3.3.

 

 

 

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REIT .  A “real estate investment trust”, as such term is defined in Section 856 of the Code.

 

Related Parties.   See §16.

 

Release .  See §6.18(c)(iii).

 

Required Lenders .  As of any date, the Lenders whose aggregate Commitments constitute at least fifty-one percent (51%) of the Total Commitment; provided that if the Total Commitment has been terminated by the Lenders the Required Lenders shall be the Lenders holding at least fifty-one percent (51%) of the sum of the outstanding principal amount of the Loans and the Letter of Credit Participations on such date; and provided further that if any Lender shall be a Defaulting Lender at such time, then there shall be excluded from the determination of Required Lenders the amount of the Commitment, Loans, and Letter of Credit Participations of such Lender, as applicable, at such time.

 

Revised Adjusted Unencumbered Property NOI .  With respect to any fiscal period for any Unencumbered Property, Adjusted Unencumbered Property NOI for such Unencumbered Property for such period; minus (a) interest income relating to such Unencumbered Property and (b) a management fee reserve in an amount equal to three percent (3%) of total revenue (after deduction of interest income of such Unencumbered Property for such period); plus (i) actual general and administrative expenses to the extent included in Adjusted Unencumbered Property NOI relating to such Unencumbered Property for such period and (ii) actual management fees relating to such Unencumbered Property for such period.

 

Revised Consolidated Adjusted Net Income .  For any period, Consolidated Adjusted Net Income for such period; minus (a) interest income and (b) a management fee reserve in an amount equal to three percent (3%) of consolidated total revenue (after deduction of interest income of MCRC, the Borrower and their respective Subsidiaries for such period), plus (i) actual general and administrative expenses for such period to the extent included in Consolidated Adjusted Net Income and (ii) actual management fees relating to Real Estate for such period.

 

Revolving Credit Exposure .  With respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Credit Loans and its LC Exposure and Swingline Exposure at such time.

 

Revolving Credit LIBOR Rate Loan .  A Revolving Credit Loan which is a LIBOR Rate Loan.

 

 

 

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Revolving Credit Loan(s) .  Each and every revolving credit loan made or to be made by the Lenders to the Borrower pursuant to §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 McGraw-Hill, Inc., and its successors.

 

SARA .  See §6.18.

 

SEC Filings .  Collectively, (a) the MCRC’s Annual Report on Forms 10-K and 10-K/A for the year ended December 31, 2010, 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, 2011, filed with the SEC pursuant to the Exchange Act.

 

Single Asset Entity .  A Person (other than an individual) that (a) only owns a single Real Estate asset; (b) is engaged only in the business of owning, developing and/or leasing such Real Estate asset; and (c) receives substantially all of its gross revenues from such Real Estate asset.  In addition, if the assets of a Person consist solely of (i) equity interests in one other Single Asset Entity and (ii) cash and other assets of nominal value incidental to such Person’s ownership of the other Single Asset Entity, such Person shall also be deemed to be a Single Asset Entity.

 

subsidiary .  Any entity required to be consolidated with its direct or indirect parent in accordance with GAAP.

 

Subsidiary .  Any corporation, association, partnership, limited liability company, trust, or other business entity of which the designated parent shall at any time own directly, or indirectly through a Subsidiary or Subsidiaries, at least a majority (by number of votes or controlling interests) of the outstanding voting interests or at least a majority of the economic interests (including, in any case, the Operating Subsidiaries and any entity required to be consolidated with its designated parent in accordance with GAAP; but, in any case, specifically excluding any Other Investments).  Unless the context otherwise requires and/or otherwise specified, a Subsidiary shall be deemed to be a Subsidiary of the Borrower or MCRC.

 

Subsidiary Guarantor .  Any Property Owning Subsidiary of the Borrower that provides a guaranty of the Obligations so that Real Estate owned by such Subsidiary shall qualify as Unencumbered Property.  The Subsidiary Guarantors on the Closing Date are listed on Schedule SG hereto.

 

 

 

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Subsidiary Guaranty .  A Guaranty made 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 jointly and severally guaranties the unconditional payment and performance of the Obligations.

 

Swing Lender . JPMorgan, in its capacity as the Swing Lender under the Swing Loan facility described in §2.1(b), and its successors in such capacity.

 

Swing Loan . A Loan made by the Swing Lender pursuant to §2.1(b).

 

Swing Loan Commitment . The lesser of (a) $50,000,000 and (b) the aggregate amount of the unused Total Commitments.

 

Swing Loan Refund Amount . See §2.1(b).

 

Swingline Exposure .  At any time, the aggregate principal amount of all Swing Loans outstanding at such time.  The Swingline Exposure of any Lender at any time shall be its Commitment Percentage of the total Swingline Exposure at such time.

 

Syndication Agent .  Bank of America, N.A.

 

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.

 

Taxes . All present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

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 §2.2 hereof or reduced pursuant to §2.10 hereof.

 

Type .  As to any Revolving Credit Loan, its nature as an 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, as certified to his knowledge by an officer of the Borrower on the Closing Date or such later date on which such Real Estate becomes an Unencumbered Property, (b) is not the subject of a Disqualifying Environmental Event, as certified to his knowledge by an officer of the Borrower on the Closing Date or such later date on which such Real Estate becomes an Unencumbered Property (which certification may be based on third party reports) (c) has been improved with a Building or Buildings which (1) have been issued a certificate of occupancy (where available) or is otherwise lawfully occupied for its intended use, and (2) are fully operational, including in each case, an Unencumbered Property that is being renovated and such renovation is proceeding to completion without undue delay from Permit denial, construction delays or otherwise, (d) is not in violation of the covenant set forth in §7.9 hereof, (e) is wholly owned or ground-leased under an Eligible Ground Lease by (x) the Borrower, (y) a Subsidiary Guarantor that is a wholly-owned Subsidiary or (z) or a Property Owning Subsidiary that is a wholly-owned Subsidiary, that is not a Subsidiary Guarantor and that is not liable for any Recourse Indebtedness (whether secured or unsecured and including any Guarantees of Indebtedness of the Borrower, MCRC, another Subsidiary or any other Person), and (f) has not been the subject of an event or occurrence that has had a Material Adverse Effect on such Property Owning Subsidiary or such Real Estate.

 

 

 

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Uniform Customs .  With respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, 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.

 

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.

 

U.S. Person .  Any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Tax Compliance Certificate . See §4.13(g)(ii)(B)(iii).

 

wholly-owned Subsidiary .  Any Subsidiary (a) (i) 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 (ii) of which MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole general partner or managing member or (b) (i) which shall have elected to be treated as a REIT and (ii) 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 substantially all of the economic interests.

 

 

 

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Withholding Agent .  The Borrower and the Administrative Agent.

 

Without Recourse or without recourse .  With reference to any obligation or liability of any Person, (a) any obligation or liability for which such Person 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 or (b) if such Person is a Single Asset Entity, any liability or obligation of such Person.

 

§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.

 

 

 

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(viii)             Reference to a particular “§” refers to that section of this Agreement unless otherwise indicated.

 

(ix)             The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this Agreement as a whole and not to any particular section or subdivision of this Agreement.

 

(x)             Any provision granting any right to the Borrower or any Guarantor during the continuance of (a) an Event of Default shall not modify, limit, waive or estopp the rights of the Lenders during the continuance of such Event of Default, including the rights of the Lenders to accelerate the Loans under §12.1 and the rights of the Lenders under §§12.2 or 12.3, or (b) a Default, shall not extend the time for curing same or modify any otherwise applicable notice regarding same.

 

(xi)             As applied to Real Estate, the word “owns” includes the ownership of the fee interest in such Real Estate or the tenant’s interest in a ground lease of such Real Estate.

 

§2.            THE CREDIT FACILITY .

 

§2.1.            Commitment to Lend .

 

(a)   Revolving Credit Loans .  Subject to the provisions of §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 §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 §2.5 hereof shall constitute a representation and warranty by the Borrower that the conditions set forth in §10 have been satisfied or waived in accordance with §25 and that the conditions set forth in §11 have been satisfied on the date of such request and will be satisfied on the proposed Drawdown Date of the requested 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 §10 have been satisfied or waived in accordance with §25 and all of the conditions set forth in §11 have been met at the time of any request for a Revolving Credit Loan or Swing Loan.

 

 

 

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(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 §2.1(b)(i) from time to time in amounts 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 §2.1(b)(i), repay or, to the extent permitted by §2.9, prepay Swing Loans and reborrow at any time during the term of this Agreement under this §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 a Default or an Event of Default.  No Swing Loan may be outstanding on the last Business Day of any calendar quarter.

 

(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 §§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 §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 §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 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.

 

 

 

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(iii)            Purchase of Participations in Swing Loans .  If, prior to the time Revolving Credit Loans would have otherwise been made pursuant to §2.1(b)(ii), any of the events described in §§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 §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 §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 §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 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 §2.1(b)(i) to the Swing Lender as provided in §2.1(b)(ii) or to purchase a participating interest pursuant to §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.

 

 

 

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§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 $400,000,000 in the aggregate (such that the Total Commitment after such increase shall never exceed $1,000,000,000); 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, the Swing Lender and the Fronting Bank shall have the right to approve any such additional lender, which approval will not be unreasonably withheld, conditioned 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 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 §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.

 

Notwithstanding the foregoing, nothing in this §2.2 shall constitute or be deemed to constitute an agreement by any Lender to increase its Commitment hereunder.

 

§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 2004 Agreement and issuance of initial Notes under this Agreement shall be governed by §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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§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 §4.9, each Alternate Base Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto (unless earlier paid in accordance with §2.9) at a rate equal to the Alternate Base Rate plus the Applicable Margin for Alternate Base Rate Loans, if any.

 

Except as otherwise provided in §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 §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 §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 §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)            Structuring Fee .  The Borrower agrees to pay to the Administrative Agent, the Syndication Agent and the Arrangers that certain arrangement fee as set forth in that certain letter agreement dated as of August 18, 2011 between the Borrower, MCRC, the Administrative Agent, Bank of America and the Arrangers (the “ Fee Letter ”).

 

 

 

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(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, an 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 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

Moody’s Rating

Facility Fee Percentage

No rating or less than BBB-

No rating or less than Baa3

0.45%

BBB-

Baa3

0.35%

BBB

Baa2

0.25%

BBB+

Baa1

0.20%

A- or higher

A3 or higher

0.175%

 

Such fee shall be payable quarterly, in arrears, for the immediately preceding calendar quarter, 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) Moody’s debt rating and/or (y) S&P 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 Moody’s debt rating or S&P 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 Moody’s or S&P so long as such Persons are in the business of providing debt ratings for the REIT industry; provided   that if MCRLP fails to maintain at least one debt rating from Moody’s or S&P, the Facility Fee Percentage shall be based upon an S&P rating of less than BBB- in the table above.  If at any time of determination of the Facility Fee Percentage, (a) MCRLP has then current debt ratings from both Moody’s and S&P, then the Facility Fee Percentage shall be based on the higher of such ratings and (b) MCRLP has then current debt ratings from only one of Moody’s or S&P, then the Facility Fee Percentage shall be based on such rating.

 

 

 

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(g)            Administrative Fee .  The Borrower shall pay to the Administrative Agent an administrative fee as set forth in the Fee Letter.

 

§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 §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 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:

 

 

 

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(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 §10 shall have been satisfied or waived in accordance with §25 and all of the conditions set forth in §11 shall have been met, including, without limitation, the condition under §11.1 that there be no Default or Event of Default under this Agreement; and

 

(c)           the Administrative Agent shall have received a certificate in the form of Exhibit D hereto signed by the chief financial officer or senior vice president of finance or other thereon designated officer of the Borrower setting forth computations evidencing compliance with the covenants contained in §§9.1 and 9.6 on a pro forma basis after giving effect to such requested Loan (including, to the extent necessary to evidence compliance thereunder, the estimated results for all Real Estate to be acquired with the proceeds of such requested Loan), and, certifying that, both before and after giving effect to such requested Loan, no Default or Event of Default exists or will exist under this Agreement or any other Loan Document, and that after taking into account such requested Loan, no Default or Event of Default will exist as of the Drawdown Date or thereafter.

 

(v)           The Administrative Agent will cause the Completed 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 §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).

 

§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.

 

 

 

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(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 §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 §2.6(b) is scheduled to occur.

 

(c)           In the event that the Borrower does not notify the Administrative Agent of its election hereunder with respect to the continuation of any Revolving Credit LIBOR Rate Loan as such, the affected Revolving Credit LIBOR Rate Loan shall automatically be continued as a Revolving Credit LIBOR Rate Loan with an Interest Period of one (1) month at the end of the applicable Interest Period other than during the continuance of a Default or Event of Default, in which case it will be continued as a Alternate Base Rate Loan at the end of the applicable Interest Period.  In such event, the Borrower shall be deemed to have requested a Revolving Credit LIBOR Rate Loan hereunder and shall be subject to all provisions of this Agreement relating to LIBOR Rate Loans, including, without limitation, those set forth in §§4.5, 4.6, and 4.8 hereof.

 

(d)           The Borrower may not request or elect a Revolving Credit LIBOR Rate Loan pursuant to §2.5, elect to convert a Alternate Base Rate Loan to a Revolving Credit LIBOR Rate Loan pursuant to §2.6(a), elect to continue a Revolving Credit LIBOR Rate Loan pursuant to §2.6(b) or have continued a Revolving Credit LIBOR Rate Loan pursuant to §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.

 

§2.7.            Funds for Revolving Credit Loans and Swing Loans .

 

(a)           Subject to the other provisions of this §2, not later than 12:00 p.m. (New York City time) on the proposed Drawdown Date of any 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 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 for disbursement to the Borrower 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 (other than amounts advanced to the Administrative Agent by the Lenders pursuant to the subject Loan request) 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.

 

 

 

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(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.

 

 

 

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§2.8.            Repayment of the Revolving Credit Loans and Swing Loans .  The Borrower promises to pay on the Maturity Date, and there shall become absolutely due and payable on the Maturity Date, all unpaid principal of the Revolving Credit Loans and Swing Loans outstanding on such date, together with any and all accrued and unpaid interest thereon, the unpaid balance of the 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.

 

§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 §2.9 of any Alternate Base Rate Loans, and at least three (3) LIBOR Business Days’ notice of any proposed prepayment pursuant to this §2.9 of 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 §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.  Unless otherwise directed by Borrower, any prepayments made by the Borrower shall be applied first to any and all Loans outstanding that are not secured by a Refinancing Mortgage (as defined in §7.12), and only to Loans secured by Refinancing Mortgages if there shall be no other Loans outstanding at the time.

 

§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; provided that unless the Total Commitment is reduced to zero, no reduction shall be made which would reduce the Total Commitment below $100,000,000.  Promptly after receiving any notice of the Borrower delivered pursuant to this §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 then accrued on the amount of the reduction.  No reduction of the Commitments may be reinstated.

 

 

 

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§2A.   COMPETITIVE BID LOANS .  

 

§2A.1. The Competitive Bid Options .  In addition to the Revolving Credit Loans and Swing Loans made pursuant to §2 hereof, and provided that at the time of such request no Default or Event of Default has occurred and is continuing and the Borrower maintains an Investment Grade Credit Rating from two nationally-recognized rating agencies reasonably acceptable to the Administrative Agent (one of which must be Moody’s or S&P so long as such Persons are in the business of providing debt ratings for the REIT industry), the Borrower may from time to time request Competitive Bid Loans pursuant to the terms of this §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 §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) 50% of the Total Commitment.

 

§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 §2A.2, the Borrower’s obligations with respect to Competitive Bid Loans are to be evidenced only as stated herein and not by separate promissory notes and shall hereby constitute an absolute promise to pay when due, without notice, demand, presentment or setoff.

 

(b)           Any Lender may at any time, and from time to time, request that any Competitive Bid Loans outstanding to such Lender be evidenced by a promissory note of the Borrower in substantially the form of Exhibit G hereto (each, a “ Competitive Bid Note ”), dated as of the Closing Date and completed with appropriate insertions.  One Competitive Bid Note shall be payable to the order of each Lender in an amount equal to the principal amount of the Competitive Bid Loan made by such Lender to the Borrower, and representing the obligation of the Borrower to pay such Lender such principal amount or, if less, the outstanding principal amount of any and all Competitive Bid Loans made by such Lender, plus interest at the applicable Competitive Bid Rate or the sum of the Competitive Bid Margin plus the applicable LIBOR Rate accrued thereon, as set forth herein.  Upon execution and delivery by the Borrower of a Competitive Bid Note, the Borrower’s obligation to repay any and all Competitive Bid Loans made to them by such Lender and all interest thereon shall thereafter be evidenced by such Competitive Bid Note.

 

 

 

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(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.

 

§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 §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:

 

(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

 

 

 

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(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 §2A.

 

§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 §2A.3, the Administrative Agent or any Lender shall be unable to complete any procedure of the auction process described in §§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.

 

§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 respons


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