Exhibit 10.1

 

Execution Version

 

CUSIP Number:  55448LAC1

 

TERM LOAN AGREEMENT

 

among

 

MACK-CALI REALTY, L.P.

 

and

 

BANK OF AMERICA, N.A.,

 

JPMORGAN CHASE BANK, N.A.,

 

WELLS FARGO BANK, N.A.

 

and

 

OTHER LENDERS WHICH MAY BECOME

 

PARTIES TO THIS AGREEMENT

 

with

 

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

 

and

 

JPMORGAN CHASE BANK, N.A., WELLS FARGO BANK, N.A.,

and

CAPITAL ONE, NATIONAL ASSOCIATION
AS SYNDICATION AGENTS,

 

and

 

U.S. BANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT,

 

and

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC and
WELLS FARGO SECURITIES, LLC,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS

 

Dated as of January 7, 2016

 

 

TABLE OF CONTENTS

 

Section					Page
§1.		DEFINITIONS AND RULES OF INTERPRETATION			1
		§1.1.	Definitions		1
		§1.2.	Rules of Interpretation		28
§2.		THE CREDIT FACILITY			29
		§2.1.	Commitment to Lend		29
		§2.2.	Incremental Term Loans		29
		§2.3.	The Notes		30
		§2.4.	Interest on Loans; Fees		31
		§2.5.	Requests for Loans		31
		§2.6.	Conversion Options		33
		§2.7.	Funds for Loans		34
		§2.8.	Repayment of Loans		35
		§2.9.	Optional Repayments of Loans		35
§3.		[RESERVED]			35
§4.		CERTAIN GENERAL PROVISIONS			35
		§4.1.	Funds for Payments		35
		§4.2.	Computations		36
		§4.3.	Inability to Determine LIBOR Rate		36
		§4.4.	Illegality		37
		§4.5.	Additional Costs, Etc.		37
		§4.6.	Capital Adequacy		38
		§4.7.	Certificate		39
		§4.8.	Indemnity		39
		§4.9.	Interest During Event of Default		39
		§4.10	Reasonable Efforts to Mitigate		40
		§4.11	Replacement of Lenders		40
		§4.12	Defaulting Lenders		40
		§4.13	Taxes		41
§5.		GUARANTIES			45
		§5.1.	Guaranties		45
		§5.2.	Subsidiary Guaranty Proceeds		46

 

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Section					Page
§6.		REPRESENTATIONS AND WARRANTIES			47
		§6.1.	Authority; Etc.		47
		§6.2.	Governmental Approvals		49
		§6.3.	Title to Properties; Leases		50
		§6.4.	Financial Statements		50
		§6.5.	Fiscal Year		51
		§6.6.	Franchises, Patents, Copyrights, Etc.		51
		§6.7.	Litigation		51
		§6.8.	No Materially Adverse Contracts, Etc.		51
		§6.9.	Compliance With Other Instruments, Laws, Etc.		51
		§6.10.	Tax Status		51
		§6.11.	No Event of Default; No Materially Adverse Changes		52
		§6.12.	Investment Company Acts		52
		§6.13.	Absence of UCC Financing Statements, Etc.		52
		§6.14.	Absence of Liens		53
		§6.15.	Certain Transactions		53
		§6.16.	Employee Benefit Plans		53
		§6.17.	Regulations U and X		54
		§6.18.	Environmental Compliance		54
		§6.19.	Subsidiaries		56
		§6.20.	Loan Documents		56
		§6.21.	REIT Status		56
		§6.22.	Subsequent Property Owning Subsidiaries		56
		§6.23.	OFAC		56
		§6.24.	Anti-Corruption Laws		57
§7.		AFFIRMATIVE COVENANTS OF THE BORROWER			57
		§7.1.	Punctual Payment		57
		§7.2.	Maintenance of Office		57
		§7.3.	Records and Accounts		57
		§7.4.	Financial Statements, Certificates and Information		58
		§7.5.	Notices		60
		§7.6.	Existence of Borrower and Property Owning Subsidiaries; Maintenance of Properties		61
		§7.7.	Existence of MCRC; Maintenance of REIT Status of MCRC; Maintenance of Properties		62
		§7.8.	Insurance		63
		§7.9.	Taxes		63
		§7.10.	Inspection of Properties and Books		64
		§7.11.	Compliance with Laws, Contracts, Licenses, and Permits		64
		§7.12.	Use of Proceeds		64
		§7.13.	Subsidiary Guarantors; Solvency		65
		§7.14.	Further Assurances		65

 

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Section					Page
		§7.15.	Environmental Indemnification		65
		§7.16.	Response Actions		66
		§7.17.	Environmental Assessments		66
		§7.18.	Employee Benefit Plans		67
		§7.19.	No Amendments to Certain Documents		67
		§7.20	Distributions in the Ordinary Course		67
		§7.21	Anti-Corruption Laws; Sanctions		67
§8.		CERTAIN NEGATIVE COVENANTS OF THE BORROWER			67
		§8.1.	Restrictions on Indebtedness		68
		§8.2.	Restrictions on Liens, Etc.		68
		§8.3.	Merger, Consolidation and Disposition of Assets		70
		§8.4.	Negative Pledge		71
		§8.5.	Compliance with Environmental Laws		72
		§8.6.	Distributions		72
		§8.7.	Employee Benefit Plans		72
		§8.8.	Fiscal Year		73
		§8.9	Sanctions		73
		§8.10	Anti-Corruption Laws		73
§9.		FINANCIAL COVENANTS OF THE BORROWER			73
		§9.1.	Leverage Ratio		73
		§9.2.	Secured Indebtedness		74
		§9.3.	[Intentionally Deleted]		74
		§9.4.	[Intentionally Deleted]		74
		§9.5.	Fixed Charge Coverage		74
		§9.6.	Unsecured Indebtedness		74
		§9.7.	Unencumbered Property Interest Coverage		74
		§9.8.	[Intentionally Deleted]		75
		§9.9.	Covenant Calculations		75
§10		CONDITIONS TO THE CLOSING DATE			76
		§10.1.	Loan Documents		76
		§10.2.	Certified Copies of Organization Documents		76
		§10.3.	By-laws; Resolutions		76
		§10.4.	Incumbency Certificate; Authorized Signers		77
		§10.5.	Certificates of Insurance		77
		§10.6.	Opinion of Counsel Concerning Organization and77 Loan Documents		77
		§10.7.	Tax Law Compliance		77
		§10.8.	Certifications from Government Officials		77
		§10.9.	Proceedings and Documents		77
		§10.10.	Fees		77

 

iii

 

Section					Page
		§10.11.	Closing Certificate; Compliance Certificate		78
		§10.12	Representations True; No Event of Default; Compliance Certificate		78
		§10.13	No Legal Impediment		78
		§10.14	Governmental Regulation		78
		§10.A	Subsequent Subsidiary Guarantors		78
§11.		[RESERVED]			79
§12.		EVENTS OF DEFAULT; ACCELERATION; ETC.			79
		§12.1.	Events of Default and Acceleration		79
		§12.2.	Termination of Commitments		82
		§12.3.	Remedies		82
§13.		SETOFF			83
§14.		THE ADMINISTRATIVE AGENT			83
		§14.1.	Authorization		83
		§14.2.	Employees and Agents		84
		§14.3.	No Liability		85
		§14.4.	No Representations		85
		§14.5.	Payments		85
		§14.6.	Holders of Notes		86
		§14.7.	Indemnity		86
		§14.8.	Administrative Agent as Lender		86
		§14.9.	Successor Administrative Agent		86
		§14.10.	Notices		87
		§14.11	Other Agents		87
§15.		EXPENSES			88
§16.		INDEMNIFICATION			88
§17.		SURVIVAL OF COVENANTS, ETC.			89
§18.		ASSIGNMENT; PARTICIPATIONS; ETC.			90
		§18.1.	Conditions to Assignment by Lenders		90
		§18.2.	Certain Representations and Warranties; Limitations; Covenants		91
		§18.3.	Register		91
		§18.4.	New Notes		92
		§18.5.	Participations		92

 

iv

 

Section					Page
		§18.6.	Pledge by Lender		93
		§18.7.	Successors and Assigns; No Assignment by Borrower		93
		§18.8	Disclosure		93
		§18.9.	Syndication		94
§19.		NOTICES, ETC.			94
§20.		GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE			96
§21.		HEADINGS			96
§22.		COUNTERPARTS			96
§23.		ENTIRE AGREEMENT, ETC.			96
§24.		WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS			97
§25.		CONSENTS, AMENDMENTS, WAIVERS, ETC.			97
§26.		SEVERABILITY			99
§27.		[RESERVED]			99
§28.		USA PATRIOT ACT			99
§29.		USURY SAVINGS CLAUSE			99
§30.		CONFIDENTIALITY			99
§31.		NO ADVISORY OR FIDUCIARY RESPONSIBILITY			101
§32.		ELECTRONIC EXECUTION OF ASSIGNMENTS AND CERTAIN OTHER DOCUMENTS			101

 

v

 

EXHIBITS

 

A	Form of Term Loan Note
B	Form of Subsidiary Guaranty
C	Form of Loan Request
D	Form of Compliance Certificate
E	Form of Closing Certificate
F	Form of Assignment and Assumption Agreement
G	[Reserved]
H	[Reserved]
I	[Reserved]
J	[Reserved]
K	[Reserved]
L	Form of Notice of Continuation/Conversion
M	[Reserved]
N	[Reserved]
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

 

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 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

 

vi

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TERM LOAN AGREEMENT

 

This TERM LOAN AGREEMENT (this “ Agreement ”) is made as of the 7th day of January, 2016, 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, BANK OF AMERICA, N.A. (“ Bank of America ”), a national banking association having an address at 901 Main Street, Dallas, Texas 75202, JPMORGAN CHASE BANK, N.A. (“ JPMorgan ”), having its principal place of business at 270 Park Avenue, New York, New York 10017, WELLS FARGO BANK, N.A. (“ WFB ”) and the other lending institutions party hereto or which may become parties hereto pursuant to §18 (individually, a “ Lender ” and collectively, the “ Lenders ”) and BANK OF AMERICA, N.A., as the administrative agent for itself and each other Lender, and JPMORGAN CHASE BANK , N.A. and WELLS FARGO BANK, N.A., as the syndication agents.

 

RECITALS

 

A.                                     The Borrower and its Subsidiaries are primarily engaged in the business of owning, purchasing, developing, constructing, renovating, leasing 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 89% 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 wishes to borrow term loans from the Lenders, and the Lenders are willing to provide such term loans on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:

 

§1.                                DEFINITIONS AND RULES OF INTERPRETATION .

 

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

 

Accountants .  In each case, nationally-recognized, independent certified public accountants reasonably acceptable to the Administrative Agent.  The Lenders hereby acknowledge that PricewaterhouseCoopers LLP and the other major national accounting firms are acceptable accountants.

 

Acquisition Property .  Any Real Estate that either (a) has been owned for fewer than eight (8) 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 eight (8) 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.

 

Act .  See §28.

 

Additional Credit Extension Amendment .  An amendment to this Agreement providing for any New Term Loans which shall be consistent with the applicable provisions of this Agreement relating to New Term Loans and otherwise satisfactory to the Administrative Agent and the Borrower.

 

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 (x) in the case of Unencumbered Properties that are office, office-flex or industrial properties, one and one-half percent (1.5%) of total revenue (excluding interest income) of such Unencumbered Property for such period and (y) in the case of Unencumbered Properties that are multi-family residential properties, $250 per apartment unit for each fiscal year, all after adjustments to eliminate the effect of the straight-lining of rents affecting such Unencumbered Property.

 

Administrative Agent .  Bank of America, 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 Bank of America, N.A. - Agency Management, Global Technology Operations, MC# IL4-135-09-61, 135 S. LaSalle Street, Chicago, IL 60603, 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.

 

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

 

2

 

capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that Person.

 

Agreement .  This Term Loan Agreement, including the schedules and exhibits hereto, as the same may be from time to time amended and in effect.

 

Alternate Base Rate .  For any day, a fluctuating 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%.  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 Loans bearing interest calculated by reference to the Alternate Base Rate.

 

Anti-Corruption Laws .  See §6.24.

 

Applicable Margin .  The applicable margin (if any) over the then Alternate Base Rate or LIBOR Rate, as applicable to the Loan(s) in question, as set forth in clauses (a) and (b) below, which is used in calculating the interest rate applicable to Loans as follows:

 

(a)                                  except as set forth in clause (b) below, the Applicable Margin shall vary from time to time in accordance with MCRLP’s debt ratings, if any as set forth in the table below (the “ Ratings Grid ”).  The Applicable Margin to be used in calculating the interest rate applicable to Alternate Base Rate Loans or LIBOR Rate Loans shall vary from time to time in accordance with MCRLP’s then applicable (if any) (x) Moody’s debt rating 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 unless the Borrower has made the Leverage Grid Election.  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:

 

3

 

S&P Rating		Moody’s Rating		Applicable Margin for 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		1.40	%	0.40	%
BBB		Baa2		1.15	%	0.15	%
BBB+		Baa1		1.00	%	0	%
A- or higher		A3 or higher		0.900	%	0	%

 

(b)                                  Notwithstanding clause (a) above, if (x) MCRLP fails to maintain a debt rating from Moody’s or S&P or such debt rating from Moody’s and/or S&P falls below BBB-/Baa3 (as applicable) and (y) the Borrower makes a one-time election in writing (the “ Leverage Grid Election ”) to have the Applicable Margin determined based on the Total Leverage Ratio, then, as of the next Business Day, the Applicable Margin shall thereafter vary from time to time in accordance with the Total Leverage Ratio as follows (the “ Leverage Grid ”):

 

Total Leverage Ratio		Applicable Margin for LIBOR Rate Loans		Applicable Margin for Alternate Base Rate Loans
< 45%		1.45	%	0.45	%
> 45% and <50%		1.55	%	0.55	%
> 50% and <55%		1.65	%	0.65	%
> 55%		1.95	%	0.95	%

 

Any increase or decrease in the Applicable Margin resulting from a change in the Total Leverage Ratio shall become effective as of the first Business Day immediately following the date a compliance certificate is delivered pursuant to §7.4(c); provided , however , that if a compliance certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, the Applicable Margin shall be based on a Total Leverage Ratio of greater than 55% as of the first Business Day after the date on which such compliance certificate was required to have been delivered and shall remain in effect until the date on which such compliance certificate is delivered.

 

If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Lenders determine that (i) the Total Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher pricing for such

 

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period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  The Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder (other than contingent Obligations for which no claim has been asserted hereunder) for a period of twelve months after such termination and repayment.

 

Notwithstanding the foregoing, if the Borrower has made the Leverage Grid Election and MCRLP thereafter achieves (x) a debt rating from S&P of BBB- or better or a debt rating from Moody’s of Baa3 or better and (y) the Borrower makes a one-time election in writing to again have the Applicable Margin determined by the Ratings Grid (the “ Ratings Grid Election ”), then the Applicable Margin shall thereafter be based on the Ratings Grid described in clause (a) above instead of the Leverage Grid.  If the Borrower makes such Ratings Grid Election, the Borrower shall not have any further rights to exercise the Leverage Grid Election.

 

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

 

Assignment and Assumption .  See §18.1.

 

Bank of America .  As defined in the recitals.

 

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.

 

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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 (x) CBD Properties, which shall be divided by 6.75% and (y) multi-family residential properties, which shall be divided by 6.0%; provided that if such Unencumbered Property has been owned for fewer than two (2) complete fiscal quarters, the Revised Adjusted Unencumbered Property NOI for such Unencumbered Property shall be calculated by using the actual results for the period that such Unencumbered Property has been owned and adjusting such results for a period of two (2) complete fiscal quarters.

 

CBD Property(ies) .  Collectively, (a) any Real Estate listed on Schedule CBD attached hereto, (b) any improved Real Estate which is located in the borough of Manhattan in New York, New York, Jersey City, New Jersey, Washington, D.C. or Philadelphia, Pennsylvania 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, but excluding in all cases any multi-family residential properties.

 

CERCLA .  See §6.18.

 

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, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’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 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 .  January 7, 2016, which is the date on which all of the conditions set forth in §10 have been satisfied or waived in accordance with §25.

 

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Code .  The Internal Revenue Code of 1986, as amended and in effect from time to time.

 

Commitment .  With respect to each Lender, (a) the amount set forth from time to time on Schedule 1.2 hereto as the amount of such Lender’s Commitment to make Term Loans to the Borrower on the Closing Date or (b) any New Term Loan Commitment of such Lender.

 

Commitment Percentage .  With respect to each Lender, (a) prior to the making of the Loans, a percentage equal to such Lender’s Commitment divided by the Total Commitment and (b) after the making of the Loans, a percentage equal to the principal amount of such Lender’s outstanding Loans divided by the aggregate principal amount of all outstanding Loans.

 

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

 

Connection Income Taxes .  Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

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 interests 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 (x) in the case of office, office-flex and industrial properties, one and one-half percent (1.5%) of consolidated total revenue (excluding interest income) of MCRC, the Borrower and their respective Subsidiaries and (y) in the case of multi-family residential properties, $250 per apartment unit for each fiscal year; 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.

 

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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 (x) CBD Properties, which shall be divided by 6.75% and (y) multi-family residential properties, which shall be divided by 6.0%; provided that if any Real Estate has been owned for fewer than two (2) complete fiscal quarters, the Revised Consolidated Adjusted Net Income for such Real Estate shall be calculated by using the actual results for the period that such Real Estate has been owned and adjusting such results for a period of two (2) complete fiscal quarters.

 

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

 

Consolida ted Secured Indebtednes s .  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 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 portion of such Unrestricted Cash and Cash Equivalents will be added to Consolidated Total Capitalization if such portion of 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

 

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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

 

(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;

 

(vi)                               investments in Real Estate, other than (x) office, office flex, industrial/warehouse, and/or multi-family residential properties and (y) any such other Real Estate that is part of a mixed-use development consisting of at least 50% office, office flex, industrial/warehouse, and/or multi-family residential properties (by leasable square footage of such

 

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development), taken in the aggregate, shall be limited to fifteen (15%) percent of Consolidated Total Capitalization; and

 

(vii)                            investments in Partially-Owned Entities, including investments in Other Investments, shall be limited to thirty percent (30%) 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.

 

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.

 

Consolida ted Unsecured Indebtednes s .  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 Loan in accordance with §2.6.

 

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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 or (ii) 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 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 and each Lender.

 

Designated Jurisdiction .  Any country or territory to the extent that such country or territory itself is the subject of any Sanction.

 

Disqualify ing Environmental Ev ent .  Any Release or threatened Release of Hazardous Substances, any violation of Environmental Laws or any other similar environmental event with respect to any Real Estate that is reasonably likely to have a material adverse effect on the value of such Real Estate.

 

Distribution .

 

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

 

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

 

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

 

Drawdown Date .  The date on which any Loan is made or is to be made, and the date on which any Loan is converted or continued in accordance with §2.6.

 

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

 

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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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.

 

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

 

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onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

Federal Funds Effective Rate . For any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

 

Fee Letter .  See §2.4(d).

 

Financial Statement Date .  With respect to the Borrower, MCRC and their respective subsidiaries, December 31, 2014.

 

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.

 

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.

 

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.

 

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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).

 

Increased Amount Date .  See §2.2.

 

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.

 

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, the last day of the calendar month which includes the Drawdown Date thereof; and (ii) as to any 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.

 

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Interest Period .  With respect to each Loan, (a) initially, the period commencing on the Drawdown Date of such Loan and ending on the last day of one of the following periods (as selected by the Borrower in a Completed Loan Request or as otherwise in accordance with the terms of this Agreement): (i) for any Alternate Base Rate Loan, the last day of the calendar month and (ii) for any LIBOR Rate Loan, 7 days or 1, 2 (if available from all Lenders), 3, 6 (if available from all Lenders), or 12 (if available from all Lenders) months; and (b) thereafter, each period commencing at the end of the last day of the immediately preceding Interest Period applicable to such Loan and ending on the last day of the applicable period set forth in (a) above as selected by the Borrower in a Conversion Request or as otherwise in accordance with this Agreement; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

 

(A)                                if any Interest Period with respect to 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 LIBOR Rate Loan as a LIBOR Rate Loan with an Interest Period of one (1) month on the last day of the then current Interest Period with respect thereto, other than during the continuance of a Default or an Event of Default;

 

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

 

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

 

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

 

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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.

 

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.

 

Lender Party .  The Administrative Agent or any 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.

 

Leverage Grid .  See the definition of “Applicable Margin”.

 

Leverage Grid Election .  See the definition of “Applicable Margin”.

 

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 Rate .  (a) for any Interest Period with respect to a LIBOR Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“ LIBOR ”) or a comparable or successor

 

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rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

 

(b)                                  for any interest calculation with respect to an Alternate Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day; and

 

(c)                                   if the LIBOR Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement;

 

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

 

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

 

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

 

Lien .  See §8.2.

 

Loan Documents .  Collectively, this Agreement, the Notes, the Guaranties, and any and all other agreements, instruments or documents now or hereafter identified thereon as a “Loan Document” under this Agreement, and all schedules, exhibits and annexes hereto or thereto, as the same may from time to time be amended and in effect.

 

Loans .  The Term 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.

 

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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 .  January 7, 2019, 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 then scheduled Maturity Date, extend the Maturity Date up to two times for a period of one year per extension (for a total possible extension of two (2) years), 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 for each extension equal to 0.15% of the outstanding principal amount of the Loans (to the Administrative Agent for the ratable benefit of the Lenders) on or prior to the then scheduled Maturity Date.

 

MCRC .  As defined in the recitals.

 

MCRC Guaranty .  The Guaranty dated as of the date hereof made by MCRC in favor of the Administrative Agent and the Lenders pursuant to which MCRC guarantees to the Administrative Agent and the Lenders the unconditional payment and performance of the Obligations.

 

MCRC Organizational Change .  See §7.7.

 

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

 

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

 

New Term Loan Commitments .  See §2.2.

 

New Term Loan Lender .  See §2.2.

 

New Term Loans .  See §2.2.

 

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

 

19

 

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.

 

Note Record .  A Record with respect to the Notes.

 

Notes .  The Term Loan Notes.

 

Obligations .  All indebtedness, obligations and liabilities of the Borrower and its Subsidiaries to any of the Lenders and the Administrative Agent, individually or collectively, under this Agreement or any of the other Loan Documents or in respect of any of the Loans or the Notes or 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.

 

OFAC .  The Office of Foreign Assets Control of the United States Department of the Treasury.

 

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).

 

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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, (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.

 

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

 

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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;

 

(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 the Person serving as Administrative Agent as its prime rate in effect at its office located in 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

 

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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. 12 dated as of November 30, 2005 between the Borrower and the Trustee, by Supplemental Indenture No. 13 dated as of January 24, 2006 between the Borrower and Trustee (solely with respect to the $100,000,000 5.80% Notes due 2016 described therein), by Supplemental Indenture No. 14 dated as of August 14, 2009 between the Borrower and Trustee, by Supplemental Indenture No. 15 dated as of April 19, 2012 between the Borrower and Trustee, by Supplemental Indenture No. 16 dated as of November 20, 2012 between the Borrower and Trustee, and by Supplemental Indenture No. 17 dated as of May 8, 2013 between the Borrower and Trustee, and as the Indenture may be further supplemented and/or amended from time to time.

 

Ratings Grid .  See the definition of “Applicable Margin”.

 

Ratings Grid Election .  See the definition of “Applicable Margin”.

 

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 and (b) any Lender, 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

 

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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).

 

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 .  (a) Prior to the making of the Loans on the Closing Date, the Lenders whose aggregate Commitments constitute at least fifty-one percent (51%) of the Total Commitment and (b) after the making of the Loans on the Closing Date, the Lenders holding at least fifty-one percent (51%) of the sum of the outstanding principal amount of the Loans 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 and Loans of such Lender, as applicable, at such time.

 

Responsible Officer .  The chief executive officer, president, chief financial officer, chief operating officer, treasurer, assistant treasurer or controller of the Borrower and, solely for purposes of notices given pursuant to §2, any other officer of the Borrower so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer of the Borrower designated in or pursuant to an agreement between the Borrower and the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.

 

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.

 

S&P .  Standard & Poor’s Financial Services LLC, a division of McGraw-Hill Financial, Inc., and its successors.

 

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Sanction(s).   Any sanction administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

 

SARA .  See §6.18.

 

SEC Filings .  Collectively, (a) the MCRC’s Annual Report on Form 10-K for the year ended December 31, 2014, filed with the Securities and Exchange Commission (the “ SEC ”) pursuant to the Securities and Exchange Act of 1934, as amended (the “ Exchange Act ”), and (b) MCRC’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2015, filed with the SEC pursuant to the Exchange Act.

 

Section 9.6 Sum .  See §9.6.

 

Secured Indebtedness .  All Indebtedness of any Person that is secured by a Lien on any asset of such Person.

 

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.

 

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.

 

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Syndication Agents .  JPMorgan and WFB.

 

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.

 

Term Loan(s) .  Each and every term loan made or to be made by the Lenders to the Borrower pursuant to §2.

 

Term Loan 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.

 

Total Commitment .  As of any date, the sum of the then-current Commitments of the Lenders, which shall not at any time exceed $350,000,000, except as such amount may be increased pursuant to §2.2 hereof.

 

Total Leverage Ratio .  See §9.1.

 

Type .  As to any 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

 

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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.

 

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.

 

Unrestr icted Cash and Cash Equiva lents .  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.

 

U nsecured Inde btedness .  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).

 

WFB .  As defined in the recitals.

 

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.

 

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, the amount of its investment in a joint venture, or other specifically identified asset only, subject to such limited exceptions to the non-recourse

 

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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.

 

(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.

 

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

 

§2.                                THE CREDIT FACILITY .

 

§2.1.                      Commitment to Lend .

 

(a)   Term 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 from each Lender on the Closing 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) equal to such Lender’s Commitment; provided that the sum of the outstanding amount of the Term Loans (after giving effect to all amounts requested) shall not at any time exceed the Total Commitment in effect at such time.  The Commitments (other than any New Term Loan Commitment) shall expire on the earlier of the date on which the Term Loans are made hereunder and January 15, 2016.

 

The Loans shall be made pro rata in accordance with each Lender’s Commitment Percentage.  Each request for a Loan made pursuant to §2.5 hereof shall constitute a representation and warranty by the Borrower that the conditions set forth in §10 have been satisfied or waived in accordance with §25 on the Closing Date (if such request was made prior to the Closing Date) or on the date of such request (if a New Term Loan to be made after the Closing Date) and will be satisfied on the proposed Drawdown Date of the requested Loan, provided that the making of such representation and warranty by the Borrower shall not limit the right of any Lender not to lend if such conditions have not been met.  No Loan shall be required to be made by any Lender unless all of the conditions contained in §10 have been satisfied or waived in accordance with §25 on the Closing Date or, for any New Term Loan requested after the Closing Date, at the time of any request for a Loan.

 

§2.2.                      Incremental Term Loans .  The Borrower may by written notice to the Administrative Agent elect to establish one or more new term loan commitments (the “ New Term Loan Commitments ”), in an aggregate amount equal to $50,000,000.  Each such notice shall specify (A) the date (each, an “ Increased Amount Date ”) on which the New Term Loan Commitments shall be effective and the New Term Loan shall be funded, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent, (B) the amount of such New Term Loan Commitments, which must be at least $25,000,000, and (C) the identity of each Person (which must either be (x) a Lender or (y) an Eligible Assignee that has been approved in writing by the Borrower and the Administrative Agent) (each, a “ New Term Loan Lender ”) to which such New Term Loan Commitments will be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment and any Lender that fails to respond to any request for New Term Loan Commitments shall be deemed to have rejected such request.  Such New Term Loan Commitments shall become effective as of such Increased Amount Date;

 

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provided that, both before and after giving effect to such New Term Loan Commitments (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any New Term Loans, each of the conditions set forth in §10.12 shall be satisfied; (3) the Borrower shall be in pro forma compliance with the covenants set forth in §9 after giving effect to such New Term Loan Commitments as of the last day of the most recently ended fiscal quarter for which a compliance certificate has been delivered pursuant to §7.4(c); (4) the New Term Loan Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and the Administrative Agent, and each of which shall be recorded in the Register (as defined in §18.3); and (5) the Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction.

 

On any Increased Amount Date on which any New Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrower (a “ New Term Loan ”) in an amount equal to its New Term Loan Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the New Term Loans made pursuant thereto.

 

The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders.

 

The terms and provisions of the New Term Loans and New Term Loan Commitments shall be identical to the existing Term Loans.  In any event, the upfront fees applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Loan Lenders and shall be set forth in each applicable Additional Credit Extension Amendment.  Each Additional Credit Extension Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provision of this §2.2.

 

§2.3.                      The Notes .  Unless any Lender elects not to receive a Note, the Loans shall be evidenced by the Notes.  A Note shall be payable to the order of each Lender (other than a Lender which elects to not receive a Note) in an aggregate principal amount equal to such Lender’s Commitment.  The Borrower irrevocably authorizes each Lender holding a Note to make or cause to be made, at or about the time of the Drawdown Date of any Loan or at the time of receipt of any payment of principal on such Lender’s Notes, an appropriate notation on such Lender’s Note Record reflecting the making of such Loan or (as the case may be) the receipt of such payment.  The outstanding amount of the Loans set forth on such Lender’s Note Record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount on such Lender’s Note Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Note to make payments of principal of or interest on any Note when due.  The Administrative Agent hereby agrees to provide the Borrower with a statement concerning the outstanding

 

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amount of the Loans, in reasonable detail, on a monthly basis.  Although each Note shall be dated the applicable Drawdown Date of the Loan evidenced thereby, interest in respect thereof shall be payable only for the periods during which the Loan evidenced thereby to the Borrower is outstanding, and such Notes shall be enforceable, with respect to obligations of the Borrower to pay the principal amount thereof, only to the extent of the unpaid principal amount of the Loans to them as of any date of determination.

 

§2.4.                      Interest on Loans; Fees .

 

(a)                                  Interest on Alternate Base Rate Loans .  Except as otherwise provided in §4.9, each Alternate Base Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto (unless earlier paid in accordance with §2.9) at a rate equal to the Alternate Base Rate plus the Applicable Margin for Alternate Base Rate Loans, if any.

 

(b)                                  Interest on LIBOR Rate Loans .  Except as otherwise provided in §4.9, each LIBOR Rate Loan shall bear interest for the period commencing with the Drawdown Date thereof and ending on the last day of the Interest Period with respect thereto (unless earlier paid in accordance with §2.9) at a rate equal to the LIBOR Rate determined for such Interest Period plus the Applicable Margin for LIBOR Rate Loans.

 

(c)                                   Interest Payments .  The Borrower unconditionally promises to pay interest on each Loan in arrears on each Interest Payment Date with respect thereto.

 

(d)                                  Arrangement Fee .  The Borrower agrees to pay to the Administrative Agent, the Syndication Agents and the Arrangers those certain arrangement fees as set forth in those certain several letter agreements dated as of November 10, 2015 between the Borrower, MCRC, the Administrative Agent, JPMorgan, WFB and the Arrangers (collectively, the “ Fee Letter ”).

 

(e)                                   Upfront Fee .  The Borrower agrees to pay to the Administrative Agent on the Closing Date for the accounts of the Lenders in accordance with their respective Commitments, an upfront fee as set forth in the Fee Letter.

 

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

 

§2.5.                      Requests for Loans .

 

The following provisions shall apply to each request by the Borrower for a Loan:

 

(i)                                      The Borrower shall submit a Completed Loan Request to the Administrative Agent as provided in this §2.5.  Such Completed Loan Request shall be irrevocable and binding on the Borrower and shall obligate the Borrower to accept the Loans requested from the Lenders on the proposed Drawdown Date, unless such Completed Loan Request is withdrawn (x) in the case of a request for a LIBOR Rate

 

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Loan, at least three (3) Business Days prior to the proposed Drawdown Date for such Loan, and (y) in the case of a request for an Alternate Base Rate Loan, at least one (1) Business Day prior to the proposed Drawdown Date for such Loan.   Such request may be given by (A) telephone, or (B) a Completed Loan Request; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Completed Loan Request.

 

(ii)                                   Each Completed Loan Request may be delivered by the Borrower to the Administrative Agent by 12:00 p.m. noon (New York City time) on any Business Day.  Such delivery shall be 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 LIBOR Rate Loan.

 

(iii)                                Each Completed Loan Request shall be signed by a Responsible Officer of the Borrower and shall include a completed writing in the form of Exhibit C hereto (or such other form as may be approved by the Administrative Agent, including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent)specifying: (1) the principal amount of the Loan requested, (2) the proposed Drawdown Date of such Loan, (3) the Interest Period applicable to such Loan, and (4) the Type of such Loan being requested.

 

(iv)                               No Lender shall be obligated to fund any Loan unless:

 

(a)                                  a Completed Loan Request has been timely received by the Administrative Agent as provided in subsection (i) above; and

 

(b)                                  both before and after giving effect to the Loan to be made pursuant to the Completed Loan Request, all of the conditions contained in §10 shall have been satisfied or waived in accordance with §25; and

 

(c)                                   the Administrative Agent shall have received a certificate in the form of Exhibit D hereto signed by the Responsible Officer or other thereon designated officer of the Borrower certifying that, both before and after giving effect to such requested Loan, no Default or Event of Default exists or will exist under this Agreement or any other Loan Document, and that after taking into account such requested Loan, no Default or Event of Default will exist as of the Drawdown Date or thereafter.

 

(v)                                  The Administrative Agent will cause the Completed Loan Request (and the Certificate in the form of Exhibit D ) to be delivered to each Lender in accordance with §14.12 and in any event on the same day that such request is received by the Administrative Agent (in the case of an Alternate Base Rate Loan) and on the same day or the Business Day following the day a Completed Loan Request is received by the Administrative Agent (in the case of a LIBOR Rate Loan).

 

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§2.6.                      Conversion Options .

 

(a)                                  The Borrower may elect from time to time by delivering a Conversion Request signed by a Responsible Officer of the Borrower in the form of Exhibit L (or such other form as may be approved by the Administrative Agent, including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent) to convert any outstanding Loan to a Loan of another Type, provided that (i) with respect to any such conversion of a LIBOR Rate Loan to an Alternate Base Rate Loan, the Borrower shall give the Administrative Agent at least three (3) Business Days prior written notice of such election; (ii) with respect to any such conversion of an Alternate Base Rate Loan to a LIBOR Rate Loan, the Borrower shall give the Administrative Agent at least three (3) LIBOR Business Days prior written notice of such election; (iii) with respect to any such conversion of a LIBOR Rate Loan into an Alternate Base Rate Loan, such conversion shall only be made on the last day of the Interest Period with respect thereto unless the Borrower pays the related LIBOR Breakage Costs at the time of such conversion and (iv) no Loan may be converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is continuing.  All or any part of outstanding Loans of any Type may be converted into a Loan of another Type as provided herein, provided that any partial conversion shall be in an aggregate principal amount of $2,000,000 or an integral multiple of $500,000 in excess thereof.  Each Conversion Request relating to the conversion of an Alternate Base Rate Loan to a LIBOR Rate Loan shall be irrevocable by the Borrower.  Such request may be given by (A) telephone, or (B) a Conversion Request; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Conversion Request.

 

(b)                                  Any Loan of any Type may be continued as such upon the expiration of the Interest Period with respect thereto (i) in the case of Alternate Base Rate Loans, automatically and (ii) in the case of LIBOR Rate Loans by compliance by the Borrower with the notice provisions contained in §2.6(a) or (c); provided that no LIBOR Rate Loan may be continued as such when any Default or Event of Default has occurred and is continuing but shall be automatically converted to an Alternate Base Rate Loan on the last day of the first Interest Period relating thereto ending during the continuance of any Default or Event of Default.  The Administrative Agent shall notify the Lenders promptly when any such automatic conversion contemplated by this §2.6(b) is scheduled to occur.

 

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

 

(d)                                  The Borrower may not request or elect a LIBOR Rate Loan pursuant to §2.5, elect to convert an Alternate Base Rate Loan to a LIBOR Rate Loan pursuant to §2.6(a),

 

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elect to continue a LIBOR Rate Loan pursuant to §2.6(b) or have continued a LIBOR Rate Loan pursuant to §2.6(c) if, after giving effect thereto, there would be greater than eight (8) LIBOR Rate Loans then outstanding.

 

§2.7.                      Funds for Loans .

 

(a)                                  Subject to the other provisions of this §2, not later than 12:00 p.m. (New York City time) on the proposed Drawdown Date of any Loan, each of the Lenders will make available to the Administrative Agent, at the Administrative Agent’s Head Office, in immediately available funds, the amount of such Lender’s Commitment Percentage of the amount of the requested Loan; provided that each Lender shall provide notice to the Administrative Agent of its intent not to make available its Commitment Percentage of any requested Loan as soon as possible after receipt of any Completed Loan Request, and in any event not later than 4:00 p.m. (New York City time) on (x) the Business Day prior to the Drawdown Date of any requested Alternate Base Rate Loan and (y) the third Business Day prior to the Drawdown Date of any requested LIBOR Rate Loan.  Upon receipt from each Lender of such amount, the Administrative Agent will make available to the Borrower, in the Borrower’s account with the Administrative Agent or as otherwise directed to the Administrative Agent by the Borrower, the aggregate amount of such Loan made available to the Administrative Agent by the Lenders; all such funds received by the Administrative Agent by the times set forth above will be made available to the Borrower not later than 2:00 p.m. on the same Business Day.  Funds received after such time will be made available by not later than 12:00 p.m. on the next Business Day.  The Administrative Agent hereby agrees to promptly provide the Borrower with a statement confirming the particulars of each LIBOR Rate Loan, in reasonable detail, when each such Loan is made.  The failure or refusal of any Lender to make available to the Administrative Agent at the aforesaid time and place on any Drawdown Date the amount of its Commitment Percentage of the requested Loan shall not relieve any other Lender from its several obligation hereunder to make available to the Administrative Agent for disbursement to the Borrower the amount of its Commitment Percentage of any requested Loan but in no event shall the Administrative Agent (in its capacity as Administrative Agent) have any obligation to make any funding (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 Loan or to increase its Commitment Percentage on account of such failure or otherwise.

 

(b)                                  The Administrative Agent may, unless notified to the contrary by any Lender prior to a Drawdown Date, assume that such Lender has made available to the Administrative Agent on such Drawdown Date the amount of such Lender’s Commitment Percentage of the Loan to be made on such Drawdown Date, and the Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make available to the Borrower a corresponding amount.  If any Lender makes available to the Administrative Agent such amount on a date after such Drawdown Date, such Lender shall pay to the Administrative Agent on demand an amount equal to the product of (i) the average, computed for the period referred to in clause (iii) below, of the weighted average interest rate paid by the Administrative Agent for federal funds acquired by the Administrative Agent during each day included in such period, multiplied by (ii) the amount of such Lender’s Commitment Percentage of such Loan,

 

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multiplied by (iii) a fraction, the numerator of which is the number of days that elapsed from and including such Drawdown Date to the date on which the amount of such Lender’s Commitment Percentage of such Loan shall become immediately available to the Administrative Agent, and the denominator of which is 360.  A statement of the Administrative Agent submitted to such Lender with respect to any amounts owing under this paragraph shall be prima facie evidence of the amount due and owing to the Administrative Agent by such Lender.  If the amount of such Lender’s Commitment Percentage of such Loans is not made available to the Administrative Agent by such Lender within three (3) Business Days following such Drawdown Date, the Administrative Agent shall be entitled to recover such amount from the Borrower on demand, with interest thereon at the rate per annum applicable to the Loans made on such Drawdown Date.

 

§2.8.                      Repayment of Loans .  The Borrower promises to pay on the Maturity Date, and there shall become absolutely due and payable on the Maturity Date, all unpaid principal of the Loans outstanding on such date, together with any and all accrued and unpaid interest thereon and any and all other unpaid amounts due under this Agreement, the Notes or any other of the Loan Documents.

 

§2.9.                      Optional Repayments of Loans .  The Borrower shall have the right, at its election, to prepay the outstanding amount of the Loans, in whole or in part, at any time without penalty or premium; provided that the outstanding amount of any LIBOR Rate Loans may not be prepaid unless the Borrower pays any LIBOR Breakage Costs for each LIBOR Rate Loan so prepaid at the time of such prepayment.  The Borrower shall give the Administrative Agent, no later than 11:00 a.m., New York City time, at least one (1) Business Day’s prior written notice of any prepayment pursuant to this §2.9 of any Alternate Base Rate Loans, and at least three (3) LIBOR Business Days’ notice of any proposed prepayment pursuant to this §2.9 of LIBOR Rate Loans, specifying the proposed date of prepayment of Loans and the principal amount to be prepaid.  Each such partial prepayment shall be in an amount of $2,000,000 or integral multiple of $500,000 in excess thereof or, if less, the outstanding balance of the Loans then being repaid, shall be accompanied by the payment of all charges outstanding on all Loans so prepaid and of all accrued interest on the principal prepaid to the date of payment, and shall be applied, in the absence of instruction by the Borrower, first to the principal of Alternate Base Rate Loans and then to the principal of LIBOR Rate Loans, at the Administrative Agent’s option.  Amounts prepaid or repaid may not be reborrowed.  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.

 

§3.   [RESERVED] .

 

§4.                                CERTAIN GENERAL PROVISIONS .

 

§4.1.   Funds for Payments .

 

(a)                                  All payments of principal, interest, fees, and any other amounts due hereunder or under any of the other Loan Documents shall be made to the Administrative Agent,

 

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for the respective accounts of the Lenders or (as the case may be) the Administrative Agent, at the Administrative Agent’s Head Office, in each case in Dollars and in immediately available funds not later than 2:00 p.m. (New York time) on the date specified herein.

 

(b)                                  All payments by the Borrower hereunder and under any of the other Loan Documents shall be made without any setoff, counterclaim, defense or recoupment.

 

(c)                                   If any Lender shall fail to make any payment required to be made by it pursuant to §2.7(a), §2.7(b), or §14.7, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) so long as such Lender is a Defaulting Lender, hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

 

(d)                                  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

§4.2.   Computations .  All computations of interest on the Loans and of other fees to the extent applicable shall be based on a 360-day year and paid for the actual number of days elapsed.  Except as otherwise provided in the definition of the term “ Interest Period ” with respect to LIBOR Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a day that is not a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and interest shall accrue during such extension.  The outstanding amount of the Loans as reflected on the Note Records from time to time shall constitute prima facie evidence of the principal amount thereof.

 

§4.3.   Inability to Determine LIBOR Rate .  In the event, prior to the commencement of any Interest Period relating to any LIBOR Rate Loan, the Administrative Agent shall reasonably determine that (x) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such LIBOR Rate Loan, (y) adequate and reasonable methods do not exist for ascertaining the LIBOR Rate that would otherwise determine the rate of interest to be applicable to any LIBOR Rate Loan during any Interest Period or (z) the LIBOR Rate for any requested Interest Period does not adequately and fairly

 

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reflect the cost to the Lenders of funding such LIBOR Rate Loan, the Administrative Agent shall forthwith give notice of such determination (which shall be conclusive and binding on the Borrower) to the Borrower and the Lenders.  In such event (a) any Loan Request with respect to LIBOR Rate Loans shall be automatically withdrawn and shall be deemed a request for Alternate Base Rate Loans, (b) each LIBOR Rate Loan will automatically, on the last day of the then current Interest Period thereof, become an Alternate Base Rate Loan, and (c) the obligations of the Lenders to make LIBOR Rate Loans shall be suspended (to the extent of the affected Interest Periods), and in the event of a determination described in the preceding sentence with respect to the LIBOR Rate component of the Alternate Base Rate, the utilization of the LIBOR Rate component in determining the Alternate Base Rate shall be suspended, until the Administrative Agent reasonably determines that the circumstances giving rise to such suspension no longer exist, whereupon the Administrative Agent shall so notify the Borrower and the Lenders.

 

§4.4.   Illegality .  Subject to §§4.10 and 4.11 hereof, but notwithstanding any other provisions herein, if any present or future law, regulation, treaty or directive or change in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain or charge interest with respect to LIBOR Rate Loans or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, such Lender shall forthwith give notice of such circumstances (which shall be conclusive and binding on the Borrower) to the Borrower and the other Lenders and thereupon (a) the commitment of such Lender to make, maintain or charge interest with respect to LIBOR Rate Loans or convert Alternate Base Rate Loans to LIBOR Rate Loans shall forthwith be suspended and (b) such Lender’s Commitment Percentage of LIBOR Rate Loans then outstanding shall be converted automatically to Alternate Base Rate Loans on the last day of each Interest Period applicable to such LIBOR Rate Loans or within such earlier period as may be required by law (and if such notice asserts the illegality of such Lender making or maintaining Alternate Base Rate Loans the interest rate on which is determined by reference to the LIBOR Rate component of the Alternate Base Rate, the interest rate on which Alternate Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR Rate component of the Alternate Base Rate), all until such time as it is no longer unlawful for such Lender to make or maintain LIBOR Rate Loans.  Subject to §§4.10 and 4.11 hereof, the Borrower hereby agrees to promptly pay the Administrative Agent for the account of such Lender, upon demand, any additional amounts necessary to compensate such Lender for any costs incurred by such Lender in making any conversion required by this §4.4 prior to the last day of an Interest Period with respect to a LIBOR Rate Loan, including any interest or fees payable by such Lender to lenders of funds obtained by it in order to make or maintain its LIBOR Rate Loans hereunder.

 

§4.5.   Additional Costs, Etc .  Subject to §§4.10 and 4.11 hereof, if any Change in Law shall:

 

(a)                                  subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

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(b)                                  impose or increase or render applicable (other than to the extent specifically provided for elsewhere in this Agreement) any special deposit, reserve, compulsory loan, insurance charge, assessment, liquidity, capital adequacy or other similar requirements (whether or not having the force of law) against assets held by, or deposits in or for the account of, or loans by, or commitments of an office of any Lender, or

 

(c)                                   impose on any Lender or the Administrative Agent any other conditions, requirements cost, or expense with respect to this Agreement, the other Loan Documents, the Loans, such Lender’s Commitment, or any class of loans or commitments of which any of the Loans or such Lender’s Commitment forms a part;

 

and the result of any of the foregoing is:

 

(i)  to increase the cost to any Lender of making, funding, converting, continuing, issuing, renewing, extending or maintaining any of the Loans or such Lender’s Commitment, or

 

(ii)  to reduce the amount of principal, interest, or other amount payable to such Lender or the Administrative Agent hereunder on account of such Lender’s Commitment or any of the Loans, or

 

(iii)  to require such Lender or the Administrative Agent to make any payment or to forego any interest or other sum payable hereunder, the amount of which payment or foregone interest or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by such Lender or the Administrative Agent from the Borrower hereunder,

 

then; the Borrower will, within thirty (30) days after demand made by such Lender or (as the case may be) the Administrative Agent pay to such Lender such additional amounts as such Lender from time to time and as often as the occasion therefor may arise shall determine in good faith to be sufficient to compensate such Lender for such additional cost, reduction, payment or foregone interest or other sum, provided that (a) the Borrower shall not be required to compensate a Lender pursuant to this §4.5 for any increased costs incurred or reductions suffered more than twelve (12) months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the twelve-month period referred to above shall be extended to include the period of retroactive effect thereof) and (b) such Lender is generally imposing similar charges on its other similarly situated borrowers.

 

§4.6.   Capital Adequacy .  Subject to §§4.10 and 4.11 hereof, if after the date hereof any Lender or the Administrative Agent determines in good faith that any Change in Law affecting such Lender or the Administrative Agent or its holding company, if any, regarding capital adequacy or capital or liquidity requirements or ratios has or would have the effect of reducing the return on such Lender’s or the Administrative Agent’s or such holding company’s capital

 

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with respect to any Loans or Commitments to a level below that which such Lender or the Administrative Agent or such holding company could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or the Administrative Agent’s or such holding company’s then existing policies with respect to capital adequacy and liquidity and assuming full utilization of such entity’s capital) by any amount deemed by such Lender or (as the case may be) the Administrative Agent to be material, then such Lender or the Administrative Agent may notify the Borrower of such fact.  To the extent that the amount of such reduction in the return on capital is not reflected in the Alternate Base Rate, the Borrower agrees to pay such Lender or (as the case may be) the Administrative Agent the amount of such reduction in the return on capital as and when such reduction is determined, within thirty (30) days after presentation by such Lender or (as the case may be) the Administrative Agent of a certificate in accordance with §4.7 hereof which certificate shall be presented within the shorter of such maximum allowable period as permitted by law or such Lender’s internal policies (but no longer than one year or the occurrence of the Maturity Date, if sooner; provided that such Lender or the Administrative Agent may deliver such certificate after the Maturity Date with respect to amounts outstanding prior to the Borrower’s satisfaction of all Obligations).  Each Lender shall allocate such cost increases among its customers in good faith and on an equitable basis.

 

§4.7.   Certificate .  A certificate setting forth any additional amounts payable pursuant to §§4.5 or 4.6 and a brief explanation of such amounts which are due, submitted by any Lender or the Administrative Agent to the Borrower shall be prima facie evidence that such amounts are due and owing.

 

§4.8.   Indemnity .  In addition to the other provisions of this Agreement regarding such matters, the Borrower agrees to indemnify the Administrative Agent and each Lender and to hold the Administrative Agent and each Lender harmless from and against any loss, cost or expense (including LIBOR Breakage Costs, but excluding any loss of Applicable Margin on the relevant Loans) that the Administrative Agent or such Lender may sustain or incur as a consequence of (a) the failure by the Borrower to pay any principal amount of or any interest on any LIBOR Rate Loans as and when due and payable, including any such loss or expense arising from any increase in interest or any fees payable by the Administrative Agent or such Lender to lenders of funds obtained by it in order to maintain its LIBOR Rate Loans, (b) the failure by the Borrower to make a borrowing or conversion after the Borrower has given or is deemed pursuant to §2.6(c) to have given a Completed Loan Request for a LIBOR Rate Loan or a Conversion Request to convert an Alternate Base Rate Loan into a LIBOR Rate Loan, and (c) the making of any payment of a LIBOR Rate Loan or the making of any conversion of any such Loan to an Alternate Base Rate Loan on a day that is not the last day of the applicable Interest Period with respect thereto, including interest or fees payable by the Administrative Agent or a Lender to lenders of funds obtained by it in order to maintain any such LIBOR Rate Loans.

 

§4.9.   Interest During Event of Default .  During the continuance of an Event of Default, outstanding principal and (to the extent permitted by applicable law) interest on the Loans and all other amounts payable hereunder or under any of the other Loan Documents shall bear interest at a rate per annum equal to four percent (4%) above the rate otherwise then in effect until such amount shall be paid in full.

 

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§4.10.   Reasonable Efforts to Mitigate .  Each Lender agrees that as promptly as practicable after it becomes aware of the occurrence of an event or the existence of a condition that would cause it to be affected under §§4.4, 4.5 or 4.6, such Lender will give notice thereof to the Borrower, with a copy to the Administrative Agent and, to the extent so requested by the Borrower and not inconsistent with regulatory policies applicable to such Lender, such Lender shall use reasonable efforts and take such actions as are reasonably appropriate (including the changing of its lending office or branch) if as a result thereof the additional moneys which would otherwise be required to be paid to such Lender pursuant to such sections would be reduced other than for de minimis amounts, or the illegality or other adverse circumstances which would otherwise require a conversion of such Loans or result in the inability to make such Loans pursuant to such sections would cease to exist, and in each case if, as determined by such Lender in its sole discretion, the taking such actions would not adversely affect such Loans.

 

§4.11.   Replacement of Lenders .  If any Lender (an “ Affected Lender ”) (i) makes demand upon the Borrower for (or if the Borrower is otherwise required to pay) amounts pursuant to §§4.4, 4.5 or 4.6, (ii) is unable to make or maintain LIBOR Rate Loans as a result of a condition described in §4.4, or (iii) becomes a Defaulting Lender, the Borrower may, within 90 days of receipt of such demand, notice (or the receipt of notice of occurrence of such other event causing a Lender to become an Affected Lender) as the case may be, by notice (a “ Replacement Notice ”) in writing to the Administrative Agent and such Affected Lender (A) request the Affected Lender to cooperate with the Borrower in obtaining a replacement lender satisfactory to the Administrative Agent and the Borrower (the “ Replacement Lender ”); (B) request the non-Affected Lenders to acquire and assume all of the Affected Lender’s Loans and Commitment, as provided herein, but none of such Lenders shall be under an obligation to do so; or (C) designate a Replacement Lender which is an Eligible Assignee and is reasonably satisfactory to the Administrative Agent other than when an Event of Default has occurred and is continuing and absolutely satisfactory to the Administrative Agent when an Event of Default has occurred and is continuing.  If any satisfactory Replacement Lender shall be obtained, and/or any of the non-Affected Lenders shall agree to acquire and assume all of the Affected Lender’s Loans and Commitment, then such Affected Lender shall assign, in accordance with §18, all of its Commitment, Loans, Notes and other rights and obligations under this Agreement and all other Loan Documents to such Replacement Lender or non-Affected Lenders, as the case may be, in exchange for payment of the principal amount so assigned and all interest and fees accrued on the amount so assigned, plus all other Obligations then due and payable to the Affected Lender; provided, however , that (x) such assignment shall be in accordance with the provisions of §18, shall be without recourse, representation or warranty and shall be on terms and conditions reasonably satisfactory to such Affected Lender and such Replacement Lender and/or non-Affected Lenders, as the case may be, and (y) prior to any such assignment, the Borrower shall have paid to such Affected Lender all amounts properly demanded and unreimbursed under §§4.4, 4.5, 4.6 and 4.8.

 

§4.12.   Defaulting Lenders .  Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender, the Commitment and outstanding Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have

 

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taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to §25); provided that any waiver, amendment or modification that increases the Commitment of a Defaulting Lender, forgives all or any portion of the principal amount of any Loan or interest thereon owing to a Defaulting Lender, reduces the Applicable Margin on the underlying interest rate owing to a Defaulting Lender or extends the Maturity Date shall require the consent of such Defaulting Lender.

 

In the event that the Administrative Agent and the Borrower each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Commitment Percentage.

 

§4.13   Taxes .

 

(a)                                  [ Reserved ].

 

(b)                                  Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes .

 

(i)                                      Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws.  If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or the Borrower, then the Administrative Agent or the Borrower shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (g)  below.

 

(ii)                                   If the Borrower or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (g)  below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this §4.13) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

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(iii)                                If the Borrower or the Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct any Taxes from any payment, then (A) the Borrower or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (g)  below, (B) the Borrower or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this §4.13) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

(c)                                   Payment of Other Taxes by the Borrower .  The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it or any Lender for the payment of, any Other Taxes.

 

(d)                                  Indemnification by the Borrower .  The Borrower shall, and does hereby, indemnify each Recipient, within 10 days after Borrower’s receipt of written notice of demand therefor together with a certificate specifying the amount of such payment or liability (with a copy to the Administrative Agent), for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

 

(e)                                   Indemnification by the Lenders .  Each Lender shall, and does hereby, severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of §18.5 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document

 

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or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).

 

(f)                                    Evidence of Payments .  As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority pursuant to this §4.13, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(g)                                   Status of Lenders .  (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in §4.13(g) (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)                                   Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,

 

(A)                                any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

 

(B)                                any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(i)                                      in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any

 

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other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(ii)                                   executed originals of IRS Form W-8ECI;

 

(iii)                                in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit O-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN; or

 

(iv)                               to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit O-2 or Exhibit O-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit O-4 on behalf of each such direct and indirect partner;

 

(C)                                any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)                                if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such

 

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payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(h)                                  Treatment of Certain Refunds .  Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this §4.13 (including by the payment of additional amounts pursuant to this §4.13), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to, or to file for or pursue any refund of Taxes on behalf of, the indemnifying party or any other Person.

 

(i)                                      Survival .  Each party’s obligations under this §4.13 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

§5.                                GUARANTIES .

 

§5.1.                      Guaranties .  The Guarantors will jointly and severally guaranty all of the Obligations pursuant to its Guaranty.  The Obligations are full recourse obligations of the Borrower and each Guarantor, and all of the respective assets and properties of the Borrower and each such Guarantor shall be available for the payment in full in cash and performance of the Obligations (subject to Permitted Liens and senior claims enforceable as senior in accordance with applicable law, without the Lenders hereby agreeing to any such senior claim that is

 

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otherwise prohibited by this Agreement).  Other than during the continuance of a Default or Event of Default, at the request of the Borrower, the Guaranty of any Subsidiary Guarantor shall be released by the Administrative Agent if and when (x) all of the Real Estate owned or ground leased by such Subsidiary Guarantor shall cease (not thereby creating a Default or Event of Default) to be owned by such Subsidiary Guarantor or by any other Borrower, Guarantor, Subsidiary or other Affiliate of any of the same or (y) the Borrower at its option elects to no longer treat the Real Estate owned by such Subsidiary Guarantor within the definition of Unencumbered Property, provided the foregoing shall never permit the release of MCRC.

 

§5.2.                      Subsidiary Guaranty Proceeds .  (a) Notwithstanding any provision of this Agreement or any other Loan Document to the contrary, the Administrative Agent and the Lenders agree with the Borrower that any funds, claims, or distributions actually received by the Administrative Agent or any Lender for the account of any Lender as a result of the enforcement of, or pursuant to a claim relating solely to the Loans under, any Subsidiary Guaranty, net of the Administrative Agent’s and the Lenders’ expenses of collection thereof (such net amount, “ Subsidiary Guaranty Proceeds ”), shall be made available for distribution equally and ratably (in proportion of the aggregate amount of principal, interest and other amounts then owed in respect of the Obligations or of the issuance of Public Debt, as the case may be) among the Administrative Agent, the Lenders and the trustee or trustees of any Public Debt so long as the Administrative Agent receives written notice of the amounts then owed under the Public Debt; provided that such agreement to distribute Subsidiary Guaranty Proceeds shall not be effective if the holders of the Public Debt have the benefit of guaranties at any time from the Subsidiaries of the Borrower and have not made a reciprocal agreement to share the proceeds of such guaranties with the Lenders.  The Administrative Agent is hereby authorized, by the Borrower, by each Lender and by the Borrower on behalf of each Subsidiary Guarantor to make such Subsidiary Guaranty Proceeds available pursuant to the immediately preceding sentence.  No Lender shall have any interest in any amount paid over by the Administrative Agent or any other Lender to the trustee or trustees in respect of any Public Debt (or to the holders thereof) pursuant to the foregoing authorization.  This §5.2 shall apply solely to Subsidiary Guaranty Proceeds, and not to any payments, funds, claims or distributions received by the Administrative Agent or any Lender directly or indirectly from Borrower or any other Person (including a Subsidiary Guarantor) other than from a Subsidiary Guarantor pursuant to the enforcement of, or the making of a claim relating solely to the Loans under, a Subsidiary Guaranty.  The Borrower is aware of the terms of the Subsidiary Guarantees, and specifically understands and agrees with the Administrative Agent, and the Lenders that, to the extent Subsidiary Guaranty Proceeds are distributed to holders of Public Debt or their respective trustees, such Subsidiary Guarantor has agreed that the Obligations under this Agreement and any other Loan Document will not be deemed reduced by any such distributions, and each Subsidiary Guarantor shall continue to make payments pursuant to its Subsidiary Guaranty until such time as the Obligations have been paid in full (and the Commitments have been terminated).

 

(b)                                  Nothing contained in this §5.2 shall be deemed (i) to limit, modify, or alter the rights of the Administrative Agent or any of the Lenders under any Subsidiary Guaranty or other Guaranty, (ii) to subordinate the Obligations to any Public Debt, or (iii) to give any holder of Public Debt (or any trustee for such holder) any rights of subrogation.

 

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(c)                                   This §5.2 and each Guaranty are for the sole benefit of the Administrative Agent, the Lenders and their respective successors and assigns.  Nothing contained herein or in any Guaranty shall be deemed for the benefit of any holder of Public Debt, or any trustee for such holder, nor shall anything contained herein or therein be construed to impose on the Administrative Agent or any Lender any fiduciary duties, obligations or responsibilities to the holders of any Public Debt or their trustees (including, but not limited to, any duty to pursue any Guarantor for payment under its Subsidiary Guaranty).

 

§6.                                REPRESENTATIONS AND WARRANTIES .  The Borrower for itself and for MCRC and each Subsidiary insofar as any such statements relate to MCRC or such Subsidiary represents and warrants to the Administrative Agent and the Lenders all of the statements contained in this §6.

 

§6.1.                      Authority; Etc .

 

(a)                                  Organization; Good Standing .

 

(i)                                      MCRLP is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware; each Subsidiary of MCRLP that owns Real Estate is duly organized or formed, validly existing and in good standing as a corporation or a partnership or other entity, as the case may be, under the laws of the state of its organization or formation; the Borrower and each of the Borrower’s Subsidiaries that owns Real Estate has all requisite partnership or corporate or other entity, as the case may be, power to own its respective properties and conduct its respective business as now conducted and as presently contemplated; and the Borrower and each of the Borrower’s Subsidiaries that owns Real Estate is in good standing as a foreign entity and is duly authorized to do business in the jurisdictions where the Unencumbered Properties or other Real Estate owned or ground-leased by it are located and in each other jurisdiction where such qualification is necessary except where a failure to be so qualified in such other jurisdiction would not have a materially adverse effect on any of their respective businesses, assets or financial conditions.

 

(ii)                                   MCRC is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland; each Subsidiary of MCRC that owns Real Estate is duly organized or formed, validly existing and in good standing as a corporation or partnership or other entity, as the case may be, under the laws of the state of its organization or formation; MCRC and each of its Subsidiaries that owns Real Estate has all requisite corporate or partnership or other entity, as the case may be, power to own its respective properties and conduct its respective business as now conducted and as presently contemplated; and MCRC and each of its Subsidiaries that owns Real Estate is in good standing as a foreign entity and is duly authorized to do business in the

 

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jurisdictions where such qualification is necessary (including, as to MCRC, in the State of New Jersey) except where a failure to be so qualified in such other jurisdiction would not have a materially adverse effect on the business, assets or financial condition of MCRC or such Subsidiary.

 

(b)                                  Capitalization .

 

(i)                                      The outstanding equity of MCRLP is comprised of a general partner interest and limited partner interests, all of which have been duly issued and are outstanding and fully paid and non-assessable as set forth in Schedule 6.1(b)  hereto, as of the Closing Date.  All of the issued and outstanding general partner interests of MCRLP are owned and held of record by MCRC.  Except as disclosed in Schedule 6.1(b)  hereto, as of the Closing Date there are no outstanding securities or agreements exchangeable for or convertible into or carrying any rights to acquire any general partnership interests in MCRLP.  Except as disclosed in Schedule 6.1(b) , as of the Closing Date, there are no outstanding commitments, options, warrants, calls or other agreements (whether written or oral) binding on MCRLP or MCRC which require or could require MCRLP or MCRC to sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any general partnership interests of MCRLP.  Except as set forth in the Agreement of Limited Partnership of MCRLP, no general partnership interests of MCRLP are subject to any restrictions on transfer or any partner agreements, voting agreements, trust deeds, irrevocable proxies, or any other similar agreements or interests (whether written or oral).

 

(ii)                                   As of the Closing Date, the authorized capital stock of, or any other equity interests in, each of MCRC’s Subsidiaries are as set forth in Schedule 6.1(b) , and the issued and outstanding voting and non-voting shares of the common stock of each of MCRC’s Subsidiaries, and all of the other equity interests in such Subsidiaries, all of which have been duly issued and are outstanding and fully paid and non-assessable, are owned and held of record as set forth in Schedule 6.1(b) .  Except as disclosed in Schedule 6.1(b) , as of the Closing Date there are no outstanding securities or agreements exchangeable for or convertible into or carrying any rights to acquire any equity interests in any of MCRC’s Subsidiaries, and there are no outstanding options, warrants, or other similar rights to acquire any shares of any class in the capital of or any other equity interests in any of MCRC’s Subsidiaries.  Except as disclosed in Schedule 6.1(b) , as of the Closing Date there are no outstanding commitments, options, warrants, calls or other agreements or obligations (whether written or oral) binding on any of MCRC’s Subsidiaries to issue, sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any shares of any class in the capital of or other equity interests in any of

 

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MCRC’s Subsidiaries.  Except as disclosed in Schedule 6.1(b) , as of the Closing Date, no shares of, or equity interests in, any of MCRC’s Subsidiaries held by MCRC are subject to any restrictions on transfer pursuant to any of MCRC’s Subsidiaries’ applicable partnership, charter, by-laws or any shareholder agreements, voting agreements, voting trusts, trust agreements, trust deeds, irrevocable proxies or any other similar agreements or instruments (whether written or oral).

 

(c)                                   Due Authorization .  The execution, delivery and performance of this Agreement and the other Loan Documents to which the Borrower or any of the Guarantors is a party and the transactions contemplated hereby and thereby (i) are within the authority of the Borrower and such Guarantor, (ii) have been duly authorized by all necessary proceedings on the part of the Borrower or such Guarantor and any general partner or other controlling Person thereof, (iii) do not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which the Borrower or such Guarantor is subject or any judgment, order, writ, injunction, license or permit applicable to the Borrower or such Guarantor, (iv) do not conflict with any provision of the agreement of limited partnership, any certificate of limited partnership, the charter documents or by-laws of the Borrower or such Guarantor or any general partner or other controlling Person thereof, and (v) do not contravene any provisions of, or constitute a default, Default or Event of Default hereunder or a failure to comply with any term, condition or provision of, any other agreement, instrument, judgment, order, decree, permit, license or undertaking binding upon or applicable to the Borrower or such Guarantor or any of the Borrower’s or such Guarantor’s properties (except for any such failure to comply under any such other agreement, instrument, judgment, order, decree, permit, license, or undertaking as would not materially and adversely affect the condition (financial or otherwise), properties, business or results of operations of the Borrower, the Operating Subsidiaries or any Guarantor) or result in the creation of any mortgage, pledge, security interest, lien, encumbrance or charge upon any of the properties or assets of the Borrower, the Operating Subsidiaries or any Guarantor.

 

(d)                                  Enforceability .  Each of the Loan Documents to which the Borrower or any of the Guarantors is a party has been duly executed and delivered and constitutes the legal, valid and binding obligations of the Borrower and each such Guarantor, as the case may be, subject only to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and to the fact that the availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.

 

§6.2.                      Governmental Approvals .  The execution, delivery and performance by the Borrower of this Agreement and by the Borrower and each Guarantor of the other Loan Documents to which the Borrower or such Guarantor is a party and the transactions contemplated hereby and thereby do not require (i) the approval or consent of any Governmental Authority other than those already obtained, or (ii) filing with any Governmental Authority, other than filings which will be made with the SEC when and as required by law.

 

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§6.3.                      Title to Properties; Leases .

 

The Borrower, MCRC and their respective Subsidiaries that own Real Estate each has good title to all of its respective Real Estate purported to be owned by it, including, without limitation, that:

 

(a)                                  As of the Closing Date (with respect to Unencumbered Properties designated as such on the Closing Date) or the date of designation as an Unencumbered Property (with respect to Unencumbered Properties acquired and/or designated as such after the Closing Date), and in each case to its knowledge thereafter, (i) the Borrower or a Property Owning Subsidiary holds good and clear record and marketable fee simple or leasehold title to the Unencumbered Properties, subject to no rights of others, including any mortgages, conditional sales agreements, title retention agreements, liens or encumbrances, except for Permitted Liens and, in the case of any ground-leased Unencumbered Property, the terms of such ground lease (which shall be an Eligible Ground Lease), as the same may then or thereafter be amended from time to time in a manner consistent with the requirements for an Eligible Ground Lease and (ii) the Unencumbered Properties satisfy the requirements for an Unencumbered Property set forth in the definition thereof.  Schedule 6.3(a) sets forth a list of all Unencumbered Properties as of the Closing Date.

 

(b)                                  The Borrower, MCRC and each of their Subsidiaries will, as of the Closing Date, own all of the assets as reflected in the financial statements of the Borrower and MCRC described in §6.4 or acquired in fee title (or, if Real Estate, leasehold title under an Eligible Ground Lease) since the date of such financial statements (except property and assets sold or otherwise disposed of in the ordinary course of business since that date).

 

(c)                                   As of the Closing Date, each of the direct or indirect interests of MCRC, the Borrower or MCRC’s other Subsidiaries in any Partially-Owned Entity that owns Real Estate is set forth on Schedule 6.3(c)  hereto, including the type of entity in which the interest is held, the percentage interest owned by MCRC, the Borrower or such Subsidiary in such entity, the capacity in which MCRC, the Borrower or such Subsidiary holds the interest, and MCRC’s, the Borrower’s or such Subsidiary’s ownership interest therein.  Schedule 6.3(c)  will be updated quarterly at the time of delivery of the financial statements pursuant to §7.4(b).

 

§6.4.                      Financial Statements .  The following financial statements have been furnished to each of the Lenders:

 

(a)                                  The audited consolidated balance sheet of MCRC and its Subsidiaries (including, without limitation, MCRLP and its Subsidiaries) as of December 31, 2014 and their related consolidated income statements for the fiscal year ended December 31, 2014.  Such balance sheet and income statements have been prepared in accordance with GAAP and fairly present the financial condition of MCRC and its Subsidiaries as of the close of business on the date thereof and the results of operations for the fiscal year then ended.  There are no contingent liabilities of MCRC as of such dates involving material amounts, known to the officers of the Borrower or of MCRC, not disclosed in said financial statements and the related notes thereto.

 

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(b)                                  The SEC Filings.

 

§6.5                         Fiscal Year .  MCRC, the Borrower and its Subsidiaries each has a fiscal year which is the twelve months ending on December 31 of each calendar year, unless changed in accordance with §8.8 hereof.

 

§6.6.                      Franchises, Patents, Copyrights, Etc .  The Borrower, MCRC and each of their respective Subsidiaries that owns Real Estate possesses all franchises, patents, copyrights, trademarks, trade names, licenses and permits, and rights in respect of the foregoing, adequate for the conduct of their respective businesses substantially as now conducted without known material conflict with any rights of others, including all Permits.

 

§6.7.                      Litigation .  Except as stated on Schedule 6.7 , as updated at the time of each compliance certificate, there are no actions, suits, proceedings or investigations of any kind pending or, to the knowledge of the Borrower, threatened against the Borrower, MCRC or any of their respective Subsidiaries before any court, tribunal or administrative agency or board that, if adversely determined, could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect or materially impair the rights of the Borrower, MCRC or such Subsidiary to carry on their respective businesses substantially as now conducted by them, or result in any substantial liability not adequately covered by insurance, or for which adequate reserves are not maintained, as reflected in the applicable financial statements of MCRLP and MCRC, or which question the validity of this Agreement or any of the other Loan Documents, or any action taken or to be taken pursuant hereto or thereto.

 

§6.8.                      No Materially Adverse Contracts, Etc .  None of the Borrower, MCRC or any of their respective Subsidiaries is subject to any charter, corporate, partnership or other legal restriction, or any judgment, decree, order, rule or regulation that has or is reasonably expected to have a Material Adverse Effect.  None of the Borrower, MCRC or any of their respective Subsidiaries that owns Real Estate is a party to any contract or agreement that has or is reasonably expected, in the judgment of their respective officers, to have a Material Adverse Effect.

 

§6.9.                      Compliance With Other Instruments, Laws, Etc .  None of the Borrower, MCRC or any of their respective Subsidiaries that owns Real Estate is in violation of any provision of its partnership agreement, charter documents, bylaws or other organizational documents, as the case may be, or any respective agreement or instrument to which it is subject or by which it or any of its properties (including, in the case of MCRC and MCRLP, any of their respective Subsidiaries) are bound or any decree, order, judgment, statute, license, rule or regulation, in any of the foregoing cases in a manner that could reasonably be expected to result, individually or in the aggregate, in the imposition of substantial penalties or have a Material Adverse Effect.

 

§6.10.               Tax Status .

 

(a)                                  (i) Each of the Borrower, MCRC and their respective Subsidiaries (A) has timely made or filed all federal, state and local income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (B) has paid all taxes and other

 

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governmental assessments and charges shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and by appropriate proceedings and (C) has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply, and (ii) there are no unpaid taxes in an aggregate amount in excess of $10,000,000 at any one time claimed to be due by the taxing authority of any jurisdiction for which payment is required to be made in accordance with the provisions of §7.9 and has not been timely made, and the respective officers of the Borrower, MCRC and their respective Subsidiaries know of no basis for any such claim.

 

(b)                                  To the Borrower’s knowledge, each Partially-Owned Entity (i) has timely made or filed all federal, state and local income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and by appropriate proceedings and (iii) has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply.  To the best of the Borrower’s knowledge, except as otherwise disclosed in writing to the Administrative Agent, there are no unpaid taxes in an aggregate amount in excess of $10,000,000 at any one time claimed to be due by the taxing authority of any jurisdiction for which payment is required to be made in accordance with the provisions of §7.9 and has not been timely made by any Partially-Owned Entity, and the officers of the Borrower know of no basis for any such claim.

 

§6.11.               No Event of Default; No Materially Adverse Changes .  No Default or Event of Default has occurred and is continuing.  Since September 30, 2015 there has occurred no materially adverse change in the financial condition or business of MCRC and its Subsidiaries or MCRLP and its Subsidiaries as shown on or reflected in the SEC Filings or the consolidated balance sheet of MCRC and its Subsidiaries as at September 30, 2015, or the consolidated statement of income for the fiscal quarter then ended, other than changes in the ordinary course of business that have not had a Material Adverse Effect on the Borrower, MCRC and their respective Subsidiaries, taken as a whole.

 

§6.12.               Investment Company Acts; .  None of the Borrower, MCRC or any of their respective Subsidiaries is an “investment company”, or an “affiliated company” or a “principal underwriter” of an “investment company”, as such terms are defined in the Investment Company Act of 1940.

 

§6.13.               Absence of UCC Financing Statements, Etc .  Except for Permitted Liens, as of the Closing Date there will be no financing statement, security agreement, chattel mortgage, real estate mortgage, equipment lease, financing lease, option, encumbrance or other document filed or recorded with any filing records, registry, or other public office, that purports to cover, affect or give notice of any present or possible future lien or encumbrance on, or security interest in, any Unencumbered Property.  Neither the Borrower nor MCRC has pledged or granted any lien on or security interest in or otherwise encumbered or transferred any of their respective interests in any Subsidiary (including in the case of MCRC, its interests in MCRLP, and in the case of the

 

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Borrower, its interests in the Operating Subsidiaries and the Property Owning Subsidiaries) or in any Partially-Owned Entity.

 

§6.14.               Absence of Liens The Borrower or a Property Owning Subsidiary is the owner of or the holder of a ground leasehold interest under an Eligible Ground Lease in the Unencumbered Properties free from any lien, security interest, encumbrance and any other claim or demand, except for Permitted Liens.

 

§6.15.               Certain Transactions .  Except as set forth on Schedule 6.15 or for transactions that have been determined by the Board of Directors of the relevant Borrower, MCRC or Subsidiary (or its respective general partner) to be on terms as favorable to such Person as in an arms-length transaction with a third party, none of the officers, partners, directors, or employees of the Borrower, MCRC or any of their respective Subsidiaries is presently a party to any transaction with the Borrower, MCRC or any of their respective Subsidiaries (other than for or in connection with services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, partner, director or such employee or, to the knowledge of the Borrower, any corporation, partnership, trust or other entity in which any officer, partner, director, or any such employee or natural Person related to such officer, partner, director or employee or other Person in which such officer, partner, director or employee has a direct or indirect beneficial interest has a substantial interest or is an officer, director, trustee or partner.

 

§6.16.               Employee Benefit Plans .

 

§6.16.1   In General .    Each Employee Benefit Plan and each Guaranteed Pension Plan has been maintained and operated in compliance in all material respects with the provisions of ERISA and, to the extent applicable, the Code, including but not limited to the provisions thereunder respecting prohibited transactions and the bonding of fiduciaries and other persons handling plan funds as required by §412 of ERISA. The Borrower has heretofore delivered to the Administrative Agent the most recently completed annual report, Form 5500, with all required attachments, and actuarial statement required to be submitted under §103(d) of ERISA, with respect to each Guaranteed Pension Plan.

 

§6.16.2   Terminability of Welfare Plans .    No Employee Benefit Plan, which is an employee welfare benefit plan within the meaning of §3(1) or §3(2)(B) of ERISA, provides benefit coverage subsequent to termination of employment, except as required by Title I, Part 6 of ERISA or the applicable state insurance laws. The Borrower may terminate each such Plan at any time (or at any time subsequent to the expiration of any applicable bargaining agreement) in the discretion of the Borrower without material liability to any Person other than for claims arising prior to termination.

 

§6.16.3   Guaranteed Pension Plans .    Each contribution required to be made to a Guaranteed Pension Plan, whether required to be made to avoid the incurrence of an accumulated funding deficiency, the notice or lien provisions of §302(f) of ERISA, or

 

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otherwise, has been timely made.  No waiver of an accumulated funding deficiency or extension of amortization periods has been received with respect to any Guaranteed Pension Plan, and neither the Borrower nor MCRC nor any ERISA Affiliate is obligated to or has posted security in connection with an amendment to a Guaranteed Pension Plan pursuant to §307 of ERISA or §401(a)(29) of the Code.  No liability to the PBGC (other than required insurance premiums, all of which have been paid through the Closing Date) has been incurred by the Borrower nor MCRC nor any ERISA Affiliate with respect to any Guaranteed Pension Plan and there has not been any ERISA Reportable Event (other than an ERISA Reportable Event as to which the requirement of 30 days’ notice has been waived), or any other event or condition which presents a material risk of termination of any Guaranteed Pension Plan by the PBGC.  Based on the latest valuation of each Guaranteed Pension Plan (which in each case occurred within twelve months of the date of this representation), and on the actuarial methods and assumptions employed for that valuation, the aggregate benefit liabilities of all such Guaranteed Pension Plans within the meaning of §4001 of ERISA did not exceed the aggregate value of the assets of all such Guaranteed Pension Plans, disregarding for this purpose the benefit liabilities and assets of any Guaranteed Pension Plan with assets in excess of benefit liabilities, by more than $500,000.

 

§6.16.4   Multiemployer Plans .    Neither the Borrower nor MCRC nor any ERISA Affiliate has incurred any material liability (including secondary liability) to any Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan under §4201 of ERISA or as a result of a sale of assets described in §4204 of ERISA.  Neither the Borrower nor any ERISA Affiliate has been notified that any Multiemployer Plan is in reorganization or insolvent under and within the meaning of §4241 or §4245 of ERISA or is at material risk of entering reorganization or becoming insolvent, or that any Multiemployer Plan intends to terminate or has been terminated under §4041A of ERISA.

 

§6.17.               Regulations U and X .  The proceeds of the Loans shall be used for the purposes described in §7.12.  No portion of any Loan is to be used for the purpose of purchasing or carrying any “margin security” or “margin stock” as such terms are used in Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224, provided the Borrower may purchase MCRC stock as long as it does not at any time cause the Lenders to be in violation of Regulations U and X and such action does not otherwise constitute a Default or an Event of Default.

 

§6.18.               Environmental Compliance .  The Borrower has caused environmental assessments to be conducted and/or taken other steps to investigate the past and present environmental condition and usage of the Real Estate and the operations conducted thereon.  Based upon such assessments and/or investigation, except as set forth on Schedule 6.18 or in any update to Schedule 6.18 in the case of any new Real Estate that becomes an Unencumbered Property under this Agreement after the Closing Date, to the Borrower’s knowledge, the Borrower represents and warrants that as of the Closing Date as to all Real Estate held by it as of the Closing Date and as of the date any new Real Estate becomes an Unencumbered Property under this Agreement as to such new Unencumbered Property:

 

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(a)                                  None of the Borrower, MCRC, any of their respective Subsidiaries or any operator of the Real Estate or any portion thereof, or any operations thereon is in violation, or alleged violation (in writing), of any judgment, order, law, license, rule or regulation pertaining to environmental matters, including without limitation, those arising under the Resource Conservation and Recovery Act (“ RCRA ”), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended (“ CERCLA ”), the Superfund Amendments and Reauthorization Act of 1986 (“ SARA ”), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state or local statute, regulation, ordinance or order relating to health, safety or the environment (hereinafter “ Environmental Laws ”), which violation or alleged violation (in writing) has, or its remediation would have, by itself or when aggregated with all such other violations or alleged violations, a Material Adverse Effect or constitutes a Disqualifying Environmental Event.

 

(b)                                  None of the Borrower, MCRC or any of their respective Subsidiaries has received notice from any third party, including, without limitation, any federal, state or local Governmental Authority, (i) that it has been identified by the United States Environmental Protection Agency (“ EPA ”) as a potentially responsible party under CERCLA with respect to a site listed on the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986), (ii) that any hazardous waste, as defined by 42 U.S.C. §6903(5), any hazardous substances as defined by 42 U.S.C. § 9601(14), any pollutant or contaminant as defined by 42 U.S.C. §9601(33) or any toxic substances, oil or hazardous materials or other chemicals or substances regulated by any Environmental Laws (“ Hazardous Substances ”) which it has generated, transported or disposed of has been found at any site at which a federal, state or local agency or other third party has conducted or has ordered that the Borrower, MCRC or any of their respective Subsidiaries conduct a remedial investigation, removal or other response action pursuant to any Environmental Law, or (iii) that it is or shall be a named party to any claim, action, cause of action, complaint, or legal or administrative proceeding (in each case, contingent or otherwise) arising out of any third party’s incurrence of costs, expenses, losses or damages of any kind whatsoever in connection with the release of Hazardous Substances; which event described in any such notice would have a Material Adverse Effect or constitutes a Disqualifying Environmental Event.

 

(c)                                   (i) No portion of the Real Estate has been used for the handling, processing, storage or disposal of Hazardous Substances except in accordance with applicable Environmental Laws; and no underground tank or other underground storage receptacle for Hazardous Substances is located on any portion of any Real Estate except in accordance with applicable Environmental Laws, (ii) in the course of any activities conducted by the Borrower, MCRC, their respective Subsidiaries or to the knowledge of the Borrower, without any independent inquiry other than as set forth in the environmental assessments, the operators of the Real Estate, or any ground or space tenants on any Real Estate, no Hazardous Substances have been generated or are being used on such Real Estate except in accordance with applicable Environmental Laws, (iii) there has been no present or past releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, disposing or dumping (a “ Release ”) or threatened Release of Hazardous Substances on, upon, into or from the Real Estate, (iv) to the knowledge of the Borrower without any independent inquiry other than as set

 

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forth in the environmental assessments, there have been no Releases on, upon, from or into any real property in the vicinity of any of the Real Estate which, through soil or groundwater contamination, may have come to be located on such Real Estate, and (v) any Hazardous Substances that have been generated by the Borrower or MCRC or any of their respective Subsidiaries at any of the Real Estate have been transported off-site only by carriers having an identification number issued by the EPA, treated or disposed of only by treatment or disposal facilities maintaining valid permits as required under applicable Environmental Laws; any of which events described in clauses (i) through (v) above would have a Material Adverse Effect, or constitutes a Disqualifying Environmental Event.

 

(d)                                  By virtue of the use of the Loans proceeds contemplated hereby, or as a condition to the effectiveness of any of the Loan Documents, none of the Borrower, MCRC, any Subsidiary or any of the Real Estate is subject to any applicable Environmental Law requiring the performance of Hazardous Substances site assessments, or the removal or remediation of Hazardous Substances, or the giving of notice to any Governmental Authority or the recording or delivery to other Persons of an environmental disclosure document or statement.

 

§6.19.               Subsidiaries .  As of the Closing Date, Schedule 6.19 sets forth all of the respective Subsidiaries of MCRC or MCRLP, and Schedule 6.19 will be updated annually at the time of delivery of the financial statements pursuant to §7.4(a) to reflect any changes.

 

§6.20.               Loan Documents .  All of the representations and warranties of the Borrower and the Guarantors made in this Agreement and in the other Loan Documents or any document or instrument delivered to the Administrative Agent or the Lenders pursuant to or in connection with any of such Loan Documents are true and correct in all material respects and do not include any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make such representations and warranties not materially misleading.

 

§6.21.               REIT Status .  MCRC has not taken any action that would prevent it from maintaining its qualification as a REIT or from maintaining such qualification at all times during the term of the Loans.

 

§6.22.               Subsequent Property Owning Subsidiaries .  The foregoing representations and warranties in §6.3 through §6.20, as the same are true, correct and applicable to each Property Owning Subsidiary that owns any Real Estate that the Borrower has elected to treat as an Unencumbered Property existing on the Closing Date, and shall be true, correct and applicable to each such subsequent Property Owning Subsidiary in all material respects as of the date it becomes a Property Owning Subsidiary that owns any Real Estate that the Borrower has elected to treat as an Unencumbered Property.

 

§6.23.               OFAC .  None of the Borrower, MCRC, or any of their Subsidiaries, or, to the knowledge of the Borrower, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions , (ii) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii)

 

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located, organized or resident in a Designated Jurisdiction.  The Borrower, MCRC, their Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, their directors and agents are in compliance with applicable Sanctions in all material respects.  No Loan, use of the proceeds of any Loan or other transactions contemplated hereby will violate applicable Sanctions.  Neither the making of the Loans hereunder nor the use of the proceeds thereof will violate the Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto.  The Borrower, MCRC, and their Subsidiaries are in compliance in all material respects with the Act.

 

§6.24                  Anti-Corruption Laws .  The Borrower, MCRC and their Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions (“ Anti-Corruption Laws ”), and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.  No Loan, use of the proceeds of any Loan or other transactions contemplated hereby will violate Anti-Corruption Laws.

 

§7.                                AFFIRMATIVE COVENANTS OF THE BORROWER .  The Borrower for itself and on behalf of each of MCRC and their respective Subsidiaries (if and to the extent expressly included in Subsections contained in this Section) covenants and agrees that, so long as any Loan or Note is outstanding or the Lenders have any obligation or commitment to make any Loans:

 

§7.1.                      Punctual Payment .  The Borrower will duly and punctually pay or cause to be paid the principal and interest on the Loans and all interest, fees, charges and other amounts provided for in this Agreement and the other Loan Documents, all in accordance with the terms of this Agreement and the Notes, and the other Loan Documents.

 

§7.2.                      Maintenance of Office .  The Borrower and each of the Guarantors will maintain its chief executive office in Edison, New Jersey, or at such other place in the United States of America as each of them shall designate upon written notice to the Administrative Agent to be delivered within five (5) days of such change, where notices, presentations and demands to or upon the Borrower and the Guarantors, as the case may be, in respect of the Loan Documents may be given or made.

 

§7.3.                      Records and Accounts .  The Borrower and MCRC will (a) keep true and accurate records and books of account in which full, true and correct entries will be made in accordance with GAAP in all material respects, and will cause each of its Subsidiaries that owns Real Estate to keep true and accurate records and books of account in which full, true and correct entries will be made in accordance with GAAP in all material respects, (b) maintain adequate accounts and reserves for all taxes (including income taxes), contingencies, depreciation and amortization of its properties and the properties of its Subsidiaries and (c) at all times engage PricewaterhouseCoopers LLP or other Accountants as the independent certified public accountants of MCRC, MCRLP and their respective Subsidiaries and will not permit more than thirty (30) days to elapse between the cessation of such firm’s (or any successor firm’s)

 

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engagement as the independent certified public accountants of MCRC, MCRLP and their respective Subsidiaries and the appointment in such capacity of a successor firm as Accountants.

 

§7.4.                      Financial Statements, Certificates and Information .  The Borrower will deliver and will cause MCRC to deliver to the Administrative Agent:

 

(a)                                  as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with §7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to §7.4(g):

 

(i)                                      in the case of MCRLP, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end of such year, the related audited consolidated statements of operations, owner’s equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner’s equity) with supplemental consolidating schedules provided by MCRLP; and

 

(ii)                                   in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders’ equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders’ equity) provided by MCRC;

 

each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, accompanied by an auditor’s report prepared by the Accountants without a “going-concern” or like qualification or exception and without any qualification or exception as to the scope of such audit;

 

(b)                                  as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:

 

(i)                                      in the case of MCRLP, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner’s equity (deficit) and cash flows for the portion of MCRLP’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner’s equity) provided by MCRLP; and

 

(ii)                                   in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders’ equity (deficit) and cash flows for the portion of MCRC’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders’ equity) provided by MCRC;

 

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all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC’s Form 10-Q statements filed with the SEC, together with a certification by the chief financial officer or senior vice president of finance of MCRLP or MCRC, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (subject to year-end adjustments);

 

(c)                                   simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of Exhibit D hereto signed by the chief financial officer or senior vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in §9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8.6 and §9 hereof;

 

(d)                                  promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC or any of their respective Subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, or such Subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, MCRC or any other Guarantor or any such Subsidiary;

 

(e)                                   contemporaneously with the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower or MCRC (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a Material Adverse Effect;

 

(f)                                    subject to subsection (g) below, contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of MCRC;

 

(g)                                   as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of MCRC, copies of the Form 10-K statement filed by MCRC with the SEC for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter of MCRC, copies of the Form 10-Q statement filed by MCRC with the SEC for such fiscal quarter, provided that, in either case, if MCRC has filed an extension for the filing of such statements, MCRC shall deliver such statements to the Administrative Agent within ten (10) days after the filing thereof with the SEC which filing shall be within fifteen (15) days of MCRC’s filing for such extension or such sooner time as required to avert a Material Adverse Effect on MCRC;

 

(h)                                  from time to time, but not more frequently than once each calendar quarter so long as no Default or Event of Default has occurred and is continuing, such other financial

 

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data and information about the Borrower, MCRC, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request, and which is prepared by such Person in the normal course of its business or is required for securities and tax law compliance, including pro forma financial statements described in §9.9(b)(ii), complete rent rolls for the Unencumbered Properties and summary rent rolls for the other Real Estate, and insurance certificates with respect to the Real Estate (including the Unencumbered Properties) and tax returns (following the occurrence of a Default or Event of Default or, in the case of MCRC, to confirm MCRC’s REIT status), but excluding working drafts and papers and privileged documents; and

 

(i) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year) above, updates to Schedule 6.3(a)  and Schedule 6.3(c)  hereto, and simultaneously with the delivery of the financial statements referred to in subsection (a) above, updates to Schedule 6.19 hereto.

 

§7.5.                      Notices .

 

(a)                                  Defaults .  The Borrower will, and will cause MCRC and each of their respective Subsidiaries, as applicable, to, promptly notify the Administrative Agent in writing of the occurrence of any Default or Event of Default.  If any Person shall give any notice or take any other action in respect of (x) a claimed default (whether or not constituting a Default or Event of Default under this Agreement) or (y) a claimed default by the Borrower, MCRC or any of their respective Subsidiaries, as applicable, under any note, evidence of Indebtedness, indenture or other obligation for borrowed money to which or with respect to which any of them is a party or obligor, whether as principal, guarantor or surety, and such default would permit the holder of such note or obligation or other evidence of Indebtedness to accelerate the maturity thereof or otherwise cause the entire Indebtedness to become due, the Borrower, MCRC or such Subsidiary, as the case may be, shall forthwith give written notice thereof to the Administrative Agent, describing the notice or action and the nature of the claimed failure to comply.

 

(b)                                  Environmental Events .  The Borrower will, and will cause MCRC and each of their respective Subsidiaries to, promptly give notice in writing to the Administrative Agent (i) upon the Borrower’s, MCRC’s or such Subsidiary’s obtaining knowledge of any material violation of any Environmental Law affecting any Real Estate or the Borrower’s, MCRC’s or such Subsidiary’s operations or the operations of any of their Subsidiaries, (ii) upon the Borrower’s, MCRC’s or such Subsidiary’s obtaining knowledge of any known Release of any Hazardous Substance at, from, or into any Real Estate which it reports in writing or is reportable by it in writing to any Governmental Authority and which is material in amount or nature or which could materially adversely affect the value of such Real Estate, (iii) upon the Borrower’s, MCRC’s or such Subsidiary’s receipt of any notice of material violation of any Environmental Laws or of any material Release of Hazardous Substances in violation of any Environmental Laws or any matter that may be a Disqualifying Environmental Event, including a notice or claim of liability or potential responsibility from any third party (including without limitation any federal, state or local governmental officials) and including notice of any formal inquiry, proceeding, demand, investigation or other action with regard to (A) the Borrower’s,

 

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MCRC’s or such Subsidiary’s or any other Person’s operation of any Real Estate, (B) contamination on, from or into any Real Estate, or (C) investigation or remediation of off-site locations at which the Borrower, MCRC or such Subsidiary or any of its predecessors are alleged to have directly or indirectly disposed of Hazardous Substances, or (iv) upon the Borrower’s, MCRC’s or such Subsidiary’s obtaining knowledge that any expense or loss has been incurred by such Governmental Authority in connection with the assessment, containment, removal or remediation of any Hazardous Substances with respect to which the Borrower, MCRC or such Subsidiary or any Partially-Owned Entity may be liable or for which a lien may be imposed on any Real Estate; provided any of which events described in clauses (i) through (iv) above would have a Material Adverse Effect or constitute a Disqualifying Environmental Event with respect to any Unencumbered Property.

 

(c)                                   Notification of Claims against Unencumbered Properties .  The Borrower will, and will cause each Property Owning Subsidiary to, promptly upon becoming aware thereof, notify the Administrative Agent in writing of any setoff, claims, withholdings or other defenses to which any of the Unencumbered Properties are subject, which (i) would have a material adverse effect on the value of such Unencumbered Property, (ii) would have a Material Adverse Effect, or (iii) with respect to such Unencumbered Property, would constitute a Disqualifying Environmental Event or a Lien which is not a Permitted Lien.

 

(d)                                  Notice of Litigation and Judgments .  The Borrower will, and will cause MCRC to, and the Borrower will cause each of its Subsidiaries to, give notice to the Administrative Agent in writing within ten (10) days of becoming aware of any litigation or proceedings threatened in writing or any pending litigation and proceedings an adverse determination in which could reasonably be expected to have a Material Adverse Effect or materially adversely affect any Unencumbered Property, or to which the Borrower, MCRC or any of their respective Subsidiaries is or is to become a party involving an uninsured claim against the Borrower, MCRC or any of their respective Subsidiaries that could reasonably be expected to have a Materially Adverse Effect or materially adversely affect the value or operation of the Unencumbered Properties and stating the nature and status of such litigation or proceedings.  The Borrower will, and will cause each of MCRC and their respective Subsidiaries to, give notice to the Administrative Agent, in writing, in form and detail reasonably satisfactory to the Administrative Agent, within ten (10) days of any judgment not covered by insurance, final or otherwise, against the Borrower, MCRC or any of their Subsidiaries in an amount in excess of $5,000,000.

 

§7.6.                      Existence of Borrower and Property Owning Subsidiaries; Maintenance of Properties .  The Borrower for itself and for each Property Owning Subsidiary insofar as any of the statements in this §7.6 relate to such Property Owning Subsidiary will do or cause to be done all things necessary to, and shall, preserve and keep in full force and effect its existence as a limited partnership or its existence as another legally constituted entity, and will do or cause to be done all things necessary to preserve and keep in full force all of its material rights and franchises and those of its Subsidiaries.  The Borrower (a) will cause all necessary repairs, renewals, replacements, betterments and improvements to be made to all Real Estate owned or controlled by it or by any of its Subsidiaries or any Property Owning Subsidiary, all as in the judgment of the Borrower or such Subsidiary or such Property Owning Subsidiary may be

 

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necessary so that the business carried on in connection therewith may be properly conducted at all times, subject to the terms of the applicable Leases and partnership agreements or other entity charter documents, (b) will cause all of its other properties and those of its Subsidiaries and the Property Owning Subsidiaries used or useful in the conduct of its business or the business of its Subsidiaries or such Property Owning Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment, ordinary wear and tear excepted, and (c) will, and will cause each of its Subsidiaries and each Property Owning Subsidiary to, continue to engage primarily in the businesses now conducted by it and in related businesses consistent with the requirements of the fourth sentence of §7.7 hereof; provided that nothing in this §7.6 shall prevent the Borrower from discontinuing the operation and maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of the Borrower, desirable in the conduct of its or their business and such discontinuance does not cause a Default or an Event of Default hereunder and does not in the aggregate have a Material Adverse Effect on the Borrower, MCRC and their respective Subsidiaries taken as a whole.

 

§7.7.                      Existence of MCRC; Maintenance of REIT Status of MCRC; Maintenance of Properties .  Except as expressly set forth in the second paragraph of this §7.7, the Borrower will cause MCRC to do or cause to be done all things necessary to preserve and keep in full force and effect MCRC’s existence as a Maryland corporation.  The Borrower will cause MCRC at all times to maintain its status as a REIT and not to take any action which could lead to its disqualification as a REIT.  The Borrower shall cause MCRC at all times to maintain its listing on the New York Stock Exchange or any successor thereto.  The Borrower will cause MCRC to continue to operate as a fully-integrated, self-administered and self-managed real estate investment trust which, together with its Subsidiaries (including, without limitation MCRLP) owns and operates an improved property portfolio comprised primarily (i.e., 85% or more by value) of office, office/flex, warehouse, industrial/warehouse and multi-family residential properties.  The Borrower will cause MCRC not to engage in any business other than the business of acting as a REIT and serving as the general partner and limited partner of MCRLP, as a member, partner or stockholder of other Persons and as a Guarantor.  The Borrower shall cause MCRC to conduct all or substantially all of its business operations through MCRLP or through subsidiary partnerships or other entities in which (x) MCRLP directly or indirectly owns at least 95% of the economic interests and (y) MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole general partner or managing member.  The Borrower shall cause MCRC not to own real estate assets outside of its interests in MCRLP.  The Borrower will cause MCRC and its Subsidiaries to do or cause to be done all things necessary to preserve and keep in full force all of its rights and franchises and those of its Subsidiaries.  The Borrower will cause MCRC (a) to cause all of its properties and those of its Subsidiaries used or useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment, ordinary wear and tear excepted, (b) to cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of MCRC may be necessary so that the business carried on in connection therewith may be properly conducted at all times, and (c) to cause each of its Subsidiaries to continue to engage primarily in the businesses now conducted by it and in related businesses, consistent with the requirements of the fourth sentence of this §7.7; provided that nothing in this §7.7 shall prevent MCRC from discontinuing the operation

 

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and maintenance of any of its properties or any of those of its Subsidiaries if such discontinuance is, in the judgment of MCRC, desirable in the conduct of its or their business and such discontinuance does not cause a Default or an Event of Default hereunder and does not in the aggregate materially adversely affect the business of MCRC and its Subsidiaries on a consolidated basis.

 

Notwithstanding the foregoing, MCRC shall be permitted to change its organizational status to become a Maryland business trust (the “ MCRC Organizational Change ”), provided the following conditions are satisfied: (i) the Borrower gives the Administrative Agent at least ten (10) Business Days prior written notice of such change; (ii) no Event of Default has occurred and is continuing at the time such change occurs and no Default or Event of Default would result therefrom; (iii) such change would not otherwise reasonably be expected to have a Material Adverse Effect; (iv) MCRC reaffirms its obligations under the MCRC Guaranty; (v) counsel for MCRC issues updated legal opinions reasonably acceptable to the Administrative Agent and its counsel as to the consummation of the MCRC Organizational Change and the continued enforceability of the MCRC Guaranty; and (vi) MCRC and the Borrower provide any other documentation reasonably requested by the Administrative Agent.

 

§7.8.                      Insurance .  The Borrower will, and will cause MCRC to, maintain with respect to its properties, and will cause each of its Subsidiaries to maintain with financially sound and reputable insurers, insurance with respect to such properties and its business against such casualties and contingencies as shall be commercially reasonable and in accordance with the customary and general practices of businesses having similar operations and real estate portfolios in similar geographic areas and in amounts, containing such terms, in such forms and for such periods as may be reasonable and prudent for such businesses.

 

§7.9.                      Taxes .  The Borrower will, and will cause MCRC and each of their respective Subsidiaries to, pay or cause to be paid real estate taxes, other taxes, assessments and other governmental charges against the Real Estate before the same become delinquent and will duly pay and discharge, or cause to be paid and discharged, before the same shall become overdue, all taxes, assessments and other governmental charges imposed upon its sales and activities, or any part thereof, or upon the income or profits therefrom, as well as all claims for labor, materials, or supplies that if unpaid might by law become a lien or charge upon any of the Real Estate; provided that any such tax, assessment, charge, levy or claim need not be paid if the validity or amount thereof shall currently be contested in good faith by appropriate proceedings and if the Borrower or such Subsidiary shall have set aside on its books adequate reserves with respect thereto; and provided further that the Borrower or such Subsidiary will pay all such taxes, assessments, charges, levies or claims forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor.  If requested by the Administrative Agent, the Borrower will provide evidence of the payment of real estate taxes, other taxes, assessments and other governmental charges against the Real Estate in the form of receipted tax bills or other form reasonably acceptable to the Administrative Agent.  Notwithstanding the foregoing, a breach of the covenants in this §7.9 shall only constitute an Event of Default if such breach results in a Material Adverse Effect.

 

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§7.10.               Inspection of Properties and Books .  The Borrower will, and will cause MCRC and each of their respective Subsidiaries to, permit the Lenders, coordinated through the Administrative Agent, (a) on an annual basis as a group, or more frequently if required by law or by regulatory requirements of a Lender or if a Default or an Event of Default shall have occurred and be continuing, to visit and inspect any of the properties of the Borrower, MCRC or any of their respective Subsidiaries, and to examine the books of account of the Borrower, MCRC and their respective Subsidiaries (and to make copies thereof and extracts therefrom) and (b) to discuss the affairs, finances and accounts of the Borrower, MCRC and their respective Subsidiaries with, and to be advised as to the same by, its officers, all at such reasonable times and intervals during normal business hours as the Administrative Agent may reasonably request; provided that the Borrower shall only be responsible for the costs and expenses incurred by the Administrative Agent in connection with such inspections after the occurrence and during the continuance of an Event of Default; and provided further that the Administrative Agent and each Lender agrees to treat any non-public information delivered or made available by the Borrower to it in accordance with the provisions of §30.

 

§7.11.               Compliance with Laws, Contracts, Licenses, and Permits .  The Borrower will, and will cause MCRC to, comply with, and will cause each of their respective Subsidiaries to comply with (a) all applicable laws and regulations now or hereafter in effect wherever its business is conducted, including, without limitation, all Environmental Laws and all applicable federal and state securities laws, (b) the provisions of its partnership agreement and certificate or corporate charter and other charter documents and by-laws, as applicable, (c) all material agreements and instruments to which it is a party or by which it or any of its properties may be bound (including the Real Estate and the Leases) and (d) all applicable decrees, orders, and judgments; provided that any such decree, order or judgment need not be complied with if the validity or amount thereof shall currently be contested in good faith by appropriate proceedings and if the Borrower, MCRC or such Subsidiary shall have set aside on its books adequate reserves with respect thereto; and provided further that the Borrower, MCRC or such Subsidiary will comply with any such decree, order or judgment forthwith upon the commencement of proceedings to foreclose any Lien that may have attached as security therefor.

 

§7.12.               Use of Proceeds .  Subject at all times to the other provisions of this Agreement, the Borrower will use the proceeds of the Loans solely for general working capital needs and other general corporate purposes.  Without limiting the right of the Borrower to make requests for Loans as provided in §2.5 hereof, it is agreed by the Lenders that, from time to time, on not less than five (5) Business Days’ notice, the Borrower may request proceeds of the Loans be specifically used to refinance certain secured mortgage Indebtedness of the Borrower and/or its Subsidiaries, in which event, a portion of the Loans equal to the amount of the advances made hereunder in connection with such refinancing, at the Borrower’s election, may be secured by a mortgage on the property securing the mortgage to be refinanced (a “ Refinancing Mortgage ”). Any such Refinancing Mortgage and any other agreement, certifications, opinions and other documents will be (i) in form and substance reasonably acceptable to the Administrative Agent and its counsel, (ii) be consistent in all material respects with the terms of this Agreement, and (iii) subject to being released or assigned by the Administrative Agent at the request of the Borrower (it being understood and agreed that the Administrative Agent shall not be required to give any representations or warranties with respect to any such release or assignment, including

 

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with respect to any aspects of the Indebtedness secured thereby).  In addition, in connection with each Refinancing Mortgage, the Administrative Agent, at the request and expense of Borrower, will provide subordination, non-disturbance and attornment agreements.  No Real Estate that is subject to a Refinancing Mortgage shall qualify as an Unencumbered Property under this Agreement.

 

§7.13.               Subsidiary Guarantors; Solvency .

 

(a)                                  If, after the Closing Date, a Subsidiary elects to provide a Subsidiary Guaranty in order to cause Real Estate owned by such Subsidiary to qualify as Unencumbered Property hereunder, the Borrower shall cause such Person (which Person must be or become a wholly-owned Subsidiary) to execute and deliver a Subsidiary Guaranty to the Administrative Agent and the Lenders in substantially the form of Exhibit B hereto.  Such Guaranty shall evidence consideration and equivalent value.  The Borrower will not permit any Property Owning Subsidiary that owns or ground leases any Unencumbered Properties to have any Subsidiaries unless such Subsidiary’s business, obligations and undertakings are exclusively related to the business of such Property Owning Subsidiary in the ownership of the Unencumbered Properties.

 

(b)                                  The Borrower, MCRC, and each Property Owning Subsidiary that owns any Real Estate that the Borrower has elected to treat as an Unencumbered Property is solvent, other than for Permitted Event(s) permitted by this Agreement which shall be the only Non-Material Breaches under this §7.13(b).  The Borrower and MCRC each acknowledge that, subject to the indefeasible payment and performance in full of the Obligations, the rights of contribution among each of the them and such Property Owning Subsidiaries are in accordance with applicable laws and in accordance with each such Person’s benefits under the Loans and this Agreement.  The Borrower further acknowledges that, subject to the indefeasible payment and performance in full of the Obligations, the rights of subrogation of such Property Owning Subsidiaries as against the Borrower and MCRC are in accordance with applicable laws.

 

§7.14.               Further Assurances .  The Borrower will, and will cause MCRC and each of their respective Subsidiaries to, cooperate with, and to cause each of its Subsidiaries to cooperate with, the Administrative Agent and the Lenders and execute such further instruments and documents as the Lenders or the Administrative Agent shall reasonably request to carry out to their reasonable satisfaction the transactions contemplated by this Agreement and the other Loan Documents.

 

§7.15.               Environmental Indemnification .  The Borrower covenants and agrees that it and its Subsidiaries will indemnify and hold the Administrative Agent and each Lender, and each of their respective Affiliates, harmless from and against any and all claims, expense, damage, loss or liability incurred by the Administrative Agent or any Lender (including all reasonable costs of legal representation incurred by the Administrative Agent or any Lender in connection with any investigative, administrative or judicial proceeding, whether or not the Administrative Agent or any Lender is party thereto, but excluding, as applicable for the Administrative Agent or a Lender, any claim, expense, damage, loss or liability as a result of the gross negligence or willful misconduct of the Administrative Agent or such Lender or any of their respective Affiliates)

 

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