Exhibit 10.1

 

EXECUTION VERSION

 

 

AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT

 

among

 

MACK-CALI REALTY, L.P.

 

and

 

WELLS FARGO BANK, N.A.

JPMORGAN CHASE BANK, N.A.

BANK OF AMERICA, N.A.

 

and

 

OTHER LENDERS WHICH MAY BECOME

PARTIES TO THIS AGREEMENT

 

with

 

JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT AND FRONTING BANK,

 

and

 

WELLS FARGO BANK, N.A.,
AS SYNDICATION AGENT AND FRONTING BANK

 

and

 

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

 

and

 

CAPITAL ONE, NATIONAL ASSOCIATION,
 U.S. BANK NATIONAL ASSOCIATION,
 CITIBANK, N.A., BMO HARRIS BANK, N.A.,
and PNC BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENTS

 

and

 

THE BANK OF NEW YORK MELLON,
AS MANAGING AGENT,

 

and

 

WELLS FARGO SECURITIES, LLC,
J.P. MORGAN CHASE BANK, N.A.
and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS

 

and

 

CAPITAL ONE, NATIONAL ASSOCIATION and
U.S. BANK NATIONAL ASSOCIATION,
AS JOINT LEAD ARRANGERS

 

Dated as of January 25, 2017

 

 

TABLE OF CONTENTS

 

 

Section				Page
§1.	DEFINITIONS AND RULES OF INTERPRETATION			1
	§1.1	Definitions		1
	§1.2	Rules of Interpretation		35
§2.	THE CREDIT FACILITY			36
	§2.1	Commitment to Lend		36
	§2.2	Incremental Facilities		37
	§2.3	The Notes		40
	§2.4	Interest on Committed Loans; Fees		40
	§2.5	Requests for Committed Loans		41
	§2.6	Conversion Options		42
	§2.7	Funds for Committed Loans		43
	§2.8	Repayment of the Revolving Credit Loans and Term Loans		45
	§2.9	Optional Repayments of Committed Loans		45
	§2.10	Reduction of Revolving Credit Commitments and Term Commitments		45
§2A. COMPETITIVE BID LOANS				46
	§2A.1. The Competitive Bid Options			46
	§2A.2. Competitive Bid Loan Accounts: Competitive Bid Notes			47
	§2A.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes			48
	§2A.4. Alternative Manner of Procedure			48
	§2A.5. Submission and Contents of Competitive Bid Quotes			49
	§2A.6. Notice to Borrower			50
	§2A.7. Acceptance and Notice by Borrower and Administrative Agent			50
	§2A.8. Allocation by Administrative Agent			51
	§2A.9. Funding of Competitive Bid Loans			51
	§2A.10.Funding Losses			51
	§2A.11.Repayment of Competitive Bid Loans; Interest			51
	§2A.12.Optional Repayment of Competitive Bid Loans			52
§3.	LETTERS OF CREDIT			52
	§3.1	Letter of Credit Commitments		52
	§3.2	Reimbursement Obligation of the Borrower		53
	§3.3	Letter of Credit Payments; Funding of a Revolving Credit Loan		54
	§3.4	Obligations Absolute		55
	§3.5	Reliance by Issuer		55
	§3.6	Letter of Credit Fee		55
	§3.7	Existing Letters of Credit		56
	§3.8	Letter of Credit Collateral Account		56
§4.	CERTAIN GENERAL PROVISIONS			57
	§4.1	Funds for Payments		57
	§4.2	Computations		58
	§4.3	Inability to Determine LIBOR Rate		58
	§4.4	Illegality		59

 

i

 

	§4.5	Additional Costs, Etc.	59
	§4.6	Capital Adequacy	60
	§4.7	Certificate	61
	§4.8	Indemnity	61
	§4.9	Interest During Event of Default	61
	§4.10	Reasonable Efforts to Mitigate	61
	§4.11	Replacement of Lenders	62
	§4.12	Defaulting Lenders	62
	§4.13	Taxes	64
§5.	GUARANTIES		68
	§5.1	Guaranties	68
	§5.2	Subsidiary Guaranty Proceeds	69
§6.	REPRESENTATIONS AND WARRANTIES		70
	§6.1	Authority; Etc.	70
	§6.2	Governmental Approvals	72
	§6.3	Title to Properties; Leases	72
	§6.4	Financial Statements	73
	§6.5	Fiscal Year	73
	§6.6	Franchises, Patents, Copyrights, Etc.	73
	§6.7	Litigation	73
	§6.8	No Materially Adverse Contracts, Etc.	74
	§6.9	Compliance With Other Instruments, Laws, Etc.	74
	§6.10	Tax Status	74
	§6.11	No Event of Default; No Materially Adverse Changes	75
	§6.12	Investment Company Acts;	75
	§6.13	Absence of UCC Financing Statements, Etc.	75
	§6.14	Absence of Liens	75
	§6.15	Certain Transactions	75
	§6.16	Employee Benefit Plans	76
	§6.17	Regulations U and X	77
	§6.18	Environmental Compliance	77
	§6.19	Subsidiaries	78
	§6.20	Loan Documents	78
	§6.21	REIT Status	79
	§6.22	Subsequent Property Owning Subsidiaries	79
	§6.23	OFAC	79
	§6.24	Anti-Corruption Laws	79
	§6.25	EEA Financial Institutions	79
§7.	AFFIRMATIVE COVENANTS OF THE BORROWER		79
	§7.1	Punctual Payment	80
	§7.2	Maintenance of Office	80
	§7.3	Records and Accounts	80
	§7.4	Financial Statements, Certificates and Information	80
	§7.5	Notices	82

 

ii

 

	§7.6	Existence of Borrower and Property Owning Subsidiaries; Maintenance of Properties	84
	§7.7	Existence of MCRC; Maintenance of REIT Status of MCRC; Maintenance of Properties	84
	§7.8	Insurance	85
	§7.9	Taxes	85
	§7.10	Inspection of Properties and Books	86
	§7.11	Compliance with Laws, Contracts, Licenses, and Permits	86
	§7.12	Use of Proceeds	87
	§7.13	Subsidiary Guarantors; Solvency	87
	§7.14	Further Assurances	88
	§7.15	Environmental Indemnification	88
	§7.16	Response Actions	88
	§7.17	Environmental Assessments	88
	§7.18	Employee Benefit Plans	89
	§7.19	No Amendments to Certain Documents	89
	§7.20	Distributions in the Ordinary Course	89
	§7.21	Anti-Corruption Laws; Sanctions	90
§8.	CERTAIN NEGATIVE COVENANTS OF THE BORROWER		90
	§8.1	Restrictions on Indebtedness	90
	§8.2	Restrictions on Liens, Etc.	90
	§8.3	Merger, Consolidation and Disposition of Assets	92
	§8.4	Negative Pledge	94
	§8.5	Compliance with Environmental Laws	94
	§8.6	Distributions	94
	§8.7	Employee Benefit Plans	94
	§8.8	Fiscal Year	95
	§8.9	Anti-Corruption Laws	95
§9.	FINANCIAL COVENANTS OF THE BORROWER		95
	§9.1	Leverage Ratio	95
	§9.2	Secured Indebtedness	96
	§9.3	[Intentionally Deleted]	96
	§9.4	[Intentionally Deleted.]	96
	§9.5	Fixed Charge Coverage	96
	§9.6	Unsecured Indebtedness	96
	§9.7	Unencumbered Property Interest Coverage	96
	§9.8	[Intentionally Deleted.]	96
	§9.9	Covenant Calculations	97
§10.	CONDITIONS TO THE CLOSING DATE		98
	§10.1	Loan Documents	98
	§10.2	Certified Copies of Organization Documents	98
	§10.3	By-laws; Resolutions	98
	§10.4	Incumbency Certificate; Authorized Signers	98
	§10.5	Certificates of Insurance	99

 

iii

 

	§10.6	Opinion of Counsel Concerning Organization and Loan Documents	99
	§10.7	Tax Law Compliance	99
	§10.8	Certifications from Government Officials	99
	§10.9	Proceedings and Documents	99
	§10.10	Fees	99
	§10.11	Closing Certificate; Compliance Certificate	99
§10A.	Subsequent Subsidiary Guarantors		100
§11.	CONDITIONS TO ALL BORROWINGS		100
	§11.1	Representations True; No Event of Default; Compliance Certificate	100
	§11.2	No Legal Impediment	100
	§11.3	Governmental Regulation	100
§12.	EVENTS OF DEFAULT; ACCELERATION; ETC.		100
	§12.1	Events of Default and Acceleration	100
	§12.2	Termination of Commitments	104
	§12.3	Remedies	104
§13.	SETOFF		105
§14.	THE ADMINISTRATIVE AGENT		105
	§14.2	Employees and Agents	106
	§14.3	No Liability	106
	§14.4	No Representations	106
	§14.5	Payments	107
	§14.6	Holders of Notes	107
	§14.7	Indemnity	107
	§14.8	Administrative Agent as Lender	108
	§14.9	Successor Administrative Agent	108
	§14.10	Notices	109
	§14.11	Other Agents	109
§15.	EXPENSES		109
§16.	INDEMNIFICATION		110
§17.	SURVIVAL OF COVENANTS, ETC		111
§18.	ASSIGNMENT; PARTICIPATIONS; ETC.		111
	§18.1	Conditions to Assignment by Lenders	111
	§18.2	Certain Representations and Warranties; Limitations; Covenants	112
	§18.3	Register	113
	§18.4	New Notes	113
	§18.5	Participations	114
	§18.6	Pledge by Lender	115
	§18.7	Successors and Assigns; No Assignment by Borrower	115
	§18.8	Disclosure	115
	§18.9	Syndication	115
	§18.10	Designated Banks	116

 

iv

 

§19.	NOTICES, ETC.			116
§20.	GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE			118
§21.	HEADINGS			119
§22.	COUNTERPARTS			119
§23.	ENTIRE AGREEMENT, ETC.			119
§24.	WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS			119
§25.	CONSENTS, AMENDMENTS, WAIVERS, ETC.			120
§26.	SEVERABILITY			121
§27.	TRANSITIONAL ARRANGEMENTS			122
	§27.1	2013 Agreement Superseded		122
	§27.2	Return and Cancellation of Notes		122
	§27.3	Interest and Fees Under 2013 Agreement		122
§28.	USA PATRIOT ACT			122
§29.	USURY SAVINGS CLAUSE			122
§30.	CONFIDENTIALITY			123
§31.	ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS			124
§32.	NO ADVISORY OR FIDUCIARY RESPONSIBILITY			125
§33.	ELECTRONIC EXECUTION OF ASSIGNMENTS AND CERTAIN OTHER DOCUMENTS			125

 

EXHIBITS

 

A		Form of Revolving Credit Note/Term Note
B		Form of Subsidiary Guaranty
C		Form of Committed Loan/Letter of Credit Request
D		Form of Compliance Certificate
E		Form of Closing Certificate
F		Form of Assignment and Assumption Agreement
G		Form of Competitive Bid Note
H		Form of Competitive Bid Quote Request
I		Form of Invitation for Competitive Bid Quotes
J		Form of Competitive Bid Quote
K		Form of Notice of Acceptance or Non-acceptance
L		Form of Notice of Continuation/Conversion
M		Form of Designated Bank Note
N		Form of Designation Agreement
O-1		Form of U.S. Tax Compliance Certificate

 

v

 

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 3.7		Existing Letters of Credit
SCHEDULE 6.1(b)		Capitalization; Outstanding Securities, Etc.
SCHEDULE 6.3(a)		Unencumbered Properties
SCHEDULE 6.3(c)		Partially Owned Real Estate Holding Entities
SCHEDULE 6.7		Litigation
SCHEDULE 6.15		Certain Transactions
SCHEDULE 6.18		Environmental Compliance
SCHEDULE 6.19		Subsidiaries

 

vi

 

AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT

 

This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this “ Agreement ”) is made as of the 25 th  day of January, 2017, by and among MACK-CALI REALTY, L.P., a Delaware limited partnership (“ MCRLP ” or the “ Borrower ”), WELLS FARGO BANK, N.A. (“ WFB ”), JPMORGAN CHASE BANK, N.A. (“ JPMorgan ”), BANK OF AMERICA, N.A. (“ Bank of America ”), and the other lending institutions party hereto or which may become parties hereto pursuant to §18 (individually, a “ Lender ” and collectively, the “ Lenders ”) and JPMORGAN CHASE BANK, N.A., as fronting bank and administrative agent for itself and each other Lender, WELLS FARGO BANK, N.A., as fronting bank and syndication agent and BANK OF AMERICA, N.A., as fronting bank and syndication agent.

 

RECITALS

 

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

 

B.                                     Mack-Cali Realty Corporation, a Maryland corporation (“ MCRC ”), is the sole general partner of MCRLP, holds in excess of 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, certain of the Lenders, certain other lending institutions, and the Administrative Agent are parties to a Fourth Amended and Restated Revolving Credit Agreement dated as of July 16, 2013 (the “ 2013 Agreement ”).

 

D.                                     The Borrower, the Lenders and the Administrative Agent wish to amend and restate the 2013 Agreement in its entirety as set forth in this Agreement.

 

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

 

§1.                                DEFINITIONS AND RULES OF INTERPRETATION .

 

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

 

2013 Agreement .  As defined in the recitals.

 

Absolute Competitive Bid Loan .  See §2A.3(a).

 

Accountants .  In each case, nationally-recognized, independent certified public accountants reasonably acceptable to the Administrative Agent.  The Lenders hereby

 

1

 

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 eight (8) fiscal quarters or fewer or (b) in the case of Real Estate developed by the Borrower or any Property Owning Subsidiary, has been in service for eight (8) fiscal quarters or fewer, 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 Revolving Credit Commitments and/or New Term Loans which shall be consistent with the applicable provisions of this Agreement relating to New Revolving Credit Commitments and/or New Term Loans and otherwise reasonably 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 .  JPMorgan acting as administrative agent for the Lenders, or any successor administrative agent, as permitted by §14.

 

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

 

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

 

2

 

control of that Person, (iii) any other Person directly or indirectly holding 10% or more of any class of the capital stock or other equity interests (including options, warrants, convertible securities and similar rights) of that Person (other than a mutual fund which owns 10% or more of the common stock of MCRC) and (iv) any other Person 10% or more of any class of whose capital stock or other equity interests (including options, warrants, convertible securities and similar rights) is held directly or indirectly by that Person.

 

Agreement .  This Amended and Restated Revolving Credit and 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 rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) assuming that on such day a LIBOR Rate Loan was being made, the LIBOR Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the purpose of this definition, the LIBOR Rate for any day shall be based on the rate appearing on the LIBOR Screen Rate (or if the LIBOR Screen Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such day.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the LIBOR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB 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 L/C Percentage .  As of any date of determination, a per annum percentage equal to the Applicable Margin for Revolving Credit LIBOR Rate Loans then in effect.

 

Applicable Margin .  (a)  For the Revolving Credit Facility, the applicable margin (if any) over the then Alternate Base Rate or LIBOR Rate and the Facility Fee Rate, as applicable to the Revolving Credit Loans in question, as set forth in clauses (i) and (ii) below, which is used in calculating the interest rate and facility fee applicable to Revolving Credit Loans as follows:

 

(i)                                      except as set forth in clause (a)(ii) below, the Applicable Margin and Facility Fee Rate for Revolving Credit Loans shall vary from time to time in accordance with MCRLP’s long-term unsecured debt ratings (“ Debt Rating ”), if any, as set forth in the table below (the “ Revolving Credit Ratings Grid ”).  The Applicable Margin to be used in calculating the interest rate applicable to Revolving Credit Loans that are Alternate Base Rate Loans or LIBOR Rate Loans and the Facility Fee Rate shall vary from time to time in accordance with the Debt Rating applicable (if any) from (x) Moody’s and/or (y) S&P, as set forth below in this definition, and such Applicable Margin and Facility Fee Rate shall be adjusted effective on the next Business Day following any change in any such 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 and Facility Fee Rate based upon a Debt

 

3

 

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 and Facility Fee Rate 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 and Facility Fee Rate, (a) MCRLP has then current Debt Ratings from both Moody’s and S&P, then the Applicable Margin and Facility Fee Rate shall be based on the higher of such Debt Ratings and (b) MCRLP has then current Debt Ratings from only one of Moody’s or S&P, then the Applicable Margin and Facility Fee Rate shall be based on such Debt Rating.

 

The applicable Debt Ratings and the Applicable Margins and Facility Fee Rate for Revolving Credit Loans are set forth in the following table:

 

S&P Rating		Moody’s Rating		Applicable Margin for Revolving Credit Loans that are LIBOR Rate Loans		Applicable Margin for Revolving Credit Loans that are Alternate Base Rate Loans		Facility Fee Rate
A- or higher		A3 or higher		0.875	%	0	%	0.125	%
BBB+		Baa1		0.90	%	0	%	0.15	%
BBB		Baa2		1.00	%	0	%	0.20	%
BBB-		Baa3		1.20	%	0.20	%	0.25	%
No rating or less than BBB-		No rating or less than Baa3		1.55	%	0.55	%	0.30	%

 

(ii)                                   Notwithstanding clause (a)(i) 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 Margins for both Revolving Credit Loans and Term Loans determined based on the Total Leverage Ratio, then, as of the next Business Day, the Applicable Margin and the Facility Fee Rate for Revolving Credit Loans shall thereafter vary from time to time in accordance with the Total Leverage Ratio as follows (the “ Revolving Credit Leverage Grid ”):

 

4

 

Total Leverage Ratio		Applicable Margin for Revolving Credit Loans that are LIBOR Rate Loans		Applicable Margin for Revolving Credit Loans that are Alternate Base Rate Loans		Facility Fee Rate
< 45%		1.25	%	0.25	%	0.20	%
> 45% and <50%		1.30	%	0.30	%	0.25	%
> 50% and <55%		1.35	%	0.35	%	0.30	%
> 55%		1.60	%	0.60	%	0.35	%

 

Any increase or decrease in the Applicable Margin and Facility Fee Rate 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 and Facility Fee Rate 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 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 Margins for both Revolving Credit Loans and Term Loans determined by the Revolving Credit Ratings Grid and the Term Ratings Grid (the “ Ratings Grid Election ”), then the Applicable Margin and the Facility Fee Rate for Revolving Credit Loans shall thereafter be based on the Revolving Credit Ratings Grid described in clause (a)(i) above instead of the Revolving Credit Leverage Grid.  If the Borrower makes the Ratings Grid Election, the Borrower shall not have any further rights to exercise the Leverage Grid Election.

 

5

 

(b)                                  For the Term Facility, the applicable margin (if any) over the then Alternate Base Rate or LIBOR Rate, as applicable to the Term Loans in question, as set forth in clauses (i) and (ii) below, which is used in calculating the interest rate applicable to Term Loans as follows:

 

(i)                                      except as set forth in clause (b)(ii) below, the Applicable Margin for Term Loans shall vary from time to time in accordance with MCRLP’s Debt Ratings, if any as set forth in the table below (the “ Term Ratings Grid ”).  The Applicable Margin to be used in calculating the interest rate applicable to Term Loans that are Alternate Base Rate Loans or LIBOR Rate Loans shall vary from time to time in accordance with the Debt Rating then applicable (if any) from (x) Moody’s and/or (y) S&P, as set forth below in this definition, and the Applicable Margin for Term Loans shall be adjusted effective on the next Business Day following any change in any such 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 for Term Loans 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 for Term Loans, (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 Debt 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 Debt Rating.

 

The applicable Debt Ratings and the Applicable Margins for Term Loans are set forth in the following table:

 

S&P Rating		Moody’s Rating		Applicable Margin for Term Loans that are LIBOR Rate Loans		Applicable Margin for Term Loans that are Alternate Base Rate Loans
A- or higher		A3 or higher		0.900	%	0	%
BBB+		Baa1		1.00	%	0	%
BBB		Baa2		1.15	%	0.15	%
BBB-		Baa3		1.40	%	0.40	%
No rating or less than BBB-		No rating or less than Baa3		1.85	%	0.85	%

 

(ii)                                   Notwithstanding clause (b)(i) 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 the Leverage Grid Election, then, as of the

 

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next Business Day, the Applicable Margin for Term Loans shall thereafter vary from time to time in accordance with the Total Leverage Ratio as follows (the “ Term Leverage Grid ”):

 

Total Leverage Ratio		Applicable Margin for Term Loans that are LIBOR Rate Loans		Applicable Margin for Term Loans that are 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 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 the Ratings Grid Election, then the Applicable Margin for Term Loans shall thereafter be based on the Term Ratings Grid described in clause (b)(i) above instead of the Term Leverage Grid.  If the Borrower makes the Ratings Grid Election, the Borrower shall not have any further rights to exercise the Leverage Grid Election.

 

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Approved Fund .  Any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Arrangers .  Wells Fargo Securities, LLC, JPMorgan Chase Bank, N.A. and Merrill Lynch, Pierce, Fenner & Smith Incorporated.

 

Assignment and Assumption .  See §18.1.

 

Bail-In Action .  The exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

Bail-In Legislation .  With respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

Bank of America .  As defined in the preamble hereto.

 

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

 

Borrower .  As defined in the preamble hereto.

 

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

 

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

 

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

 

Capitalized Unencumbered Property NOI .  As of any date of determination with respect to an Unencumbered Property (other than an Acquisition Property), an amount equal to the Revised Adjusted Unencumbered Property NOI for such Unencumbered Property for the most

 

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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, Hoboken, 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 the Fronting Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Fronting Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines, interpretations or directives thereunder or issued in connection therewith (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) and (b) all requests, rules, regulations, guidelines, interpretations or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or 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 25, 2017, which is the date on which all of the conditions set forth in §10 have been satisfied or waived in accordance with §25.

 

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

 

Commitment .  With respect to each Lender, its Revolving Credit Commitment and/or its Term Commitment, as the context may require.

 

Commitment Percentage .  The Revolving Credit Commitment Percentage or the Term Commitment Percentage, as the context may require.

 

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Committed LIBOR Rate Loan .  A Revolving Credit LIBOR Rate Loan or a Term LIBOR Rate Loan.

 

Committed Loan .  A Revolving Credit Loan or a Term Loan.

 

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

 

Competitive Bid Loans .  A borrowing hereunder consisting of one or more loans made by any of the participating Revolving Credit Lenders whose offer to make a Competitive Bid Loan as part of such borrowing has been accepted by the Borrower under the auction bidding procedure described in §2A hereof.

 

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

 

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

 

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

 

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

 

Competitive Bid Rate .  See §2A.5(b)(v).

 

Completed Committed 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 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

 

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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.

 

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

 

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Equivalents have been deducted from Consolidated Total Liabilities or Consolidated Secured Indebtedness in the calculation of the financial covenants in §9.1 or §9.2 of this Agreement, plus

 

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

 

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

 

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

 

(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;

 

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(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 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.

 

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Conversion Request .  A notice given by the Borrower to the Administrative Agent of its election to convert or continue a Committed Loan in accordance with §2.6.

 

Debt Rating .  See the definition of “Applicable Margin” in §1.1.

 

Default .  As of the relevant time of determination, an event or occurrence which solely with the giving of notice or the lapse of time, or both, would constitute an Event of Default.

 

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

 

Designated Bank .  A special purpose entity that (i) shall have become a party to this Agreement pursuant to §18.10, and (ii) is not otherwise a Lender.

 

Designated Bank Notes .  Promissory notes of the Borrower, substantially in the form of Exhibit M hereto, evidencing the obligation of the Borrower to repay Competitive Loans made by Designated Banks, as the same may be amended, supplemented, modified or restated from time to time, and “Designated Bank Note” means any one of such promissory notes issued under §18.10.

 

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

 

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Designation Agreement .  A designation agreement in substantially the form of Exhibit N attached hereto, entered into by a Lender and a Designated Bank and accepted by the Administrative Agent.

 

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.

 

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.

 

EEA Financial Institution .  (a) Any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;

 

EEA Member Country .  Any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

EEA Resolution Authority .  Any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

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

 

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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 or an Approved Fund of a Lender; provided that, in any event, Eligible Assignees shall not include (x) any Defaulting Lender and its Subsidiaries and Affiliates, (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 .

 

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.

 

EU Bail-In Legislation Schedule .  The EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

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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.

 

Facility .  The Revolving Credit Facility and/or the Term Facility, as the context may require.

 

Facility Fee .  See §2.4(f).

 

Facility Fee Rate .  The percentage per annum equal to the “Facility Fee Rate” as determined in accordance with the definition of “Applicable Margin” in §1.1.

 

FATCA .  Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

Federal Funds Effective Rate .  For any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate.

 

Fee Letter .  See §2.4(d).

 

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Financial Statement Date .  With respect to the Borrower, MCRC and their respective subsidiaries, December 31, 2015.

 

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

 

Fronting Bank .  With respect to any letters of credit issued under this Agreement on or after the date hereof, each of JPMorgan, Bank of America and WFB, or with the consent of the Administrative Agent and the Borrower, another Lender, each in its capacity an issuer of Letters of Credit, and their respective successors and assigns.  Each Fronting Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such Fronting Bank (or another Lender, with the consent of such Lender and the Borrower), in which case the term “Fronting Bank” shall include any such Affiliate (or such Lender) with respect to Letters of Credit issued by such Affiliate (or such Lender).  Each reference herein to the “Fronting Bank” shall mean all of the Fronting Banks, each Fronting Bank, any Fronting Bank or the applicable Fronting Bank, as the context may require.

 

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.

 

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).

 

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Impacted Interest Period .  See the definition of “LIBOR Rate” in §1.1.

 

Increased Amount Date .  See §2.2.

 

Incremental Commitments .  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.

 

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 Committed Loan Request or as otherwise in accordance with the terms of this Agreement): (i) for any Alternate Base Rate Loan, the last day of the calendar month, (ii) for any Committed LIBOR Rate Loan, 1, 2, 3, 6, or 12 (if available from all

 

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Lenders) months ( provided that the Interest Period for Committed LIBOR Rate Loans may be shorter than one (1) month, to the extent available, in order to consolidate two (2) or more Committed LIBOR Rate Loans), (iii) for any Absolute Competitive Bid Loan, a market period not to extend beyond the Revolving Credit Maturity Date and (iv) for any LIBOR Competitive Bid Loan, 1, 2, 3, 6, or 12 months; and (b) thereafter, each period commencing at the end of the last day of the immediately preceding Interest Period applicable to such Loan and ending on the last day of the applicable period set forth in (a) above as selected by the Borrower in a Conversion Request or as otherwise in accordance with this Agreement; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

 

(A)          if any Interest Period with respect to 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 Committed LIBOR Rate Loan as a Committed 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 applicable Maturity Date shall end on the applicable Maturity Date.

 

Interpolated  Rate .  At any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBOR Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR Screen Rate for the longest period for which the LIBOR Screen Rate is available) that is shorter than the Impacted Interest Period; and (b) the LIBOR Screen Rate for the shortest period (for which that LIBOR Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time, provided that if the Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

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.

 

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Investments .  All expenditures made and all liabilities incurred (contingently or otherwise, but without double-counting): (i) for the acquisition of stock, partnership or other equity interests or Indebtedness of, or for loans, advances, capital contributions or transfers of property to, any Person; and (ii) for the acquisition of any other obligations of any Person.  In determining the aggregate amount of Investments outstanding at any particular time: (a) there shall be included as an Investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (b) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (c) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (a) may be deducted when paid; and (d) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof.

 

JPMorgan .  As defined in the recitals.

 

L/C Commitment .  As to any Fronting Bank, (a) identified as a Fronting Bank on the Closing Date, $20,000,000, (b) if such Fronting Bank has entered into an Assignment and Assumption, the amount set forth for such Fronting Bank as its L/C Commitment in the Register maintained by the Administrative Agent, or (c) if the Fronting Bank is a Lender which becomes a Fronting Bank after the Closing Date (other than pursuant to an Assignment and Assumption), the amount set forth in any Loan Document pursuant to which it is appointed as a Fronting Bank.

 

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

 

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

 

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

 

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

 

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

 

Letter of Credit .  See §3.1.1.

 

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Letter of Credit Application .  See §3.1.1.

 

Letter of Credit Collateral .  See §3.8.

 

Letter of Credit Collateral Account .  See §3.8.

 

Letter of Credit Fee .  See §3.6.

 

Letter of Credit Participation .  See §3.1.4.

 

Leverage Grid Election .  See the definition of “Applicable Margin” in §1.1.

 

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

 

LIBOR Business Day .  Any day on which commercial banks are open for international business (including dealings in Dollar deposits) in London.

 

LIBOR Competitive Bid Loan(s) .  See §2A.3(a).

 

LIBOR Rate .  With respect to any LIBOR Loan for any Interest Period, the LIBOR Screen Rate at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period; provided that if the LIBOR Screen Rate shall not be available at such time for such Interest Period (an “ Impacted Interest Period ”) then the LIBOR Rate shall be the Interpolated Rate.

 

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.

 

LIBOR Screen Rate .  For any day and time, with respect to any LIBOR Loan for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars for a period equal in length to such Interest Period as displayed on such day and time on page LIBOR01 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that

 

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displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion), provided that if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

Lien .  See §8.2.

 

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

 

Loans .  The Revolving Credit Loans, Term Loans and the Competitive Bid Loans.

 

Material Adverse Effect .  Any event or occurrence of whatever nature which:  (a) has a material adverse effect on the business, properties, operations or financial condition of (i) the Borrower or (ii) MCRC or (iii) the Borrower, MCRC and their respective Subsidiaries, taken as a whole, (b) has a material adverse effect on the ability of the Borrower or any Guarantor to perform its payment and other material obligations under any of the Loan Documents, or (c) causes a material impairment of the validity or enforceability of any of the Loan Documents or any material impairment of the rights, remedies and benefits available to the Administrative Agent and the Lenders under any of the Loan Documents.

 

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

 

Maturity Date .  The Revolving Credit Maturity Date or the Term Maturity Date, as the context may require.

 

Maximum Drawing Amount .  The maximum aggregate amount that the beneficiaries may at any time draw under outstanding Letters of Credit, as such maximum aggregate amount may be reduced from time to time pursuant to the terms of the Letters of Credit.

 

MCRC .  As defined in the recitals.

 

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

 

MCRC Organizational Change .  See §7.7.

 

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

 

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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 Revolving Credit Commitments . See §2.2.

 

New Revolving Credit Lender .  See §2.2.

 

New Term Commitments .  See §2.2.

 

New Term Lender .  See §2.2.

 

New Term Loan . See §2.2.

 

New Term Loan Commitment Period .  With respect to any New Term Commitment, the period from the date of entering into such New Term Commitment to the earlier to occur of (a) the date on which New Term Loans have been made in a principal amount equal to the aggregate of such New Term Commitments and (b) the date specified in the Additional Credit Extension Amendment for such New Term Commitment.

 

Non-Material Breach .  A (i) breach of a representation or warranty or covenant contained in §6 or §7 (other than §7.1), (ii) breach of any other representation or warranty or covenant as to which such term “Non-Material Breach” is specifically applied, or (iii) Permitted Event; but only to the extent any such breach under (i) or (ii) or an event under (iii) (other than §7.1), neither (A) singularly or in conjunction with any other existing breaches or events under (iii), materially adversely affect the business, properties or financial condition of (x) MCRC; (y) MCRLP; or (z) the Borrower, MCRC and their Subsidiaries, taken as whole nor (B) singularly or in conjunction with any other existing breaches or events under (iii), materially adversely affect the ability of (x) MCRC; (y) MCRLP; or (z) the Borrower, MCRC and their Subsidiaries, taken as a whole, to fulfill the obligations to the Lenders under the Loan Documents (including, without limitation, the repayment of all amounts outstanding under the Loans, together with interest and charges thereon, when first due) nor (C) has been identified in this Agreement specifically as a matter that does not constitute a Non-Material Breach.  During the continuance of any Permitted Event, the Real Estate (including Unencumbered Property) and other assets of any affected Property Owning Subsidiary shall be excluded from asset (but not liability) and income (but not loss) calculation under §9 which exclusions shall be evidenced in all compliance certificates provided as required by this Agreement.

 

A breach or event which may constitute a Non-Material Breach shall be identified when first known to the Borrower, MCRC or Subsidiary on the next compliance certificate required to be delivered to the Lenders pursuant to the terms of this Agreement; provided that the identification of such breach or event as a Non-Material Breach by the Borrower, MCRC or any Subsidiary shall not be binding on the Lenders.

 

Note Record .  A Record with respect to the Notes.

 

Notes .  The Revolving Credit Notes, the Term Notes and the Competitive Bid Notes, including Designated Bank Notes.

 

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NYFRB .  The Federal Reserve Bank of New York.

 

NYFRB Rate .  For any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day(or for any day that is not a Banking Day, for the immediately preceding Banking Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided, further , that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

Obligations .  All indebtedness, obligations and liabilities of the Borrower and its Subsidiaries to any of the Lenders and the Administrative Agent, individually or collectively, under this Agreement or any of the other Loan Documents or in respect of any of the Loans or the Notes or Reimbursement Obligations incurred or the Letter of Credit Applications or the Letters of Credit or other instruments at any time evidencing any thereof, whether existing on the date of this Agreement or arising or incurred hereafter, direct or indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract, operation of law or otherwise.

 

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).

 

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

 

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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).

 

Overnight Bank Funding Rate .  For any day, the rate comprised of both overnight federal funds and overnight Eurodollar borrowings by U.S.-managed banking offices of depository institutions (as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).

 

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

 

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

 

Participant .  See §18.5.

 

Participant Register .  See §18.5.

 

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

 

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

 

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

 

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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 Administrative Agent as its prime rate in effect at its main office; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

Project Costs .  With respect to Construction-In-Process, the actual project cost of such Construction-In-Process shown on schedules submitted to the Administrative Agent from time to time; provided that for Construction-In-Process owned by any Partially-Owned Entity, the Project Cost of such Construction-In-Process shall be the Borrower’s or its subsidiaries’ pro-rata share of the actual project cost of such Construction-In-Process (based on the greater of (x) the Borrower’s or its subsidiaries’ percentage equity interest in such Partially-Owned Entity or (y) the Borrower’s or its subsidiaries’ obligation to provide, or liability for providing, funds to such Partially-Owned Entity).

 

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

 

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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. 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 Election .  See the definition of “Applicable Margin” in §1.1.

 

RCRA .  See §6.18.

 

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

 

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

 

Record .  The grid attached to any Note, or the continuation of such grid, or any other similar record, including computer records, maintained by any Lender with respect to any Loan.

 

Recourse .  With reference to any obligation or liability, any liability or obligation that is not Without Recourse, directly or indirectly.  For purposes hereof, a Person shall not be deemed to be “indirectly” liable for the liabilities or obligations of an obligor solely by reason of the fact that such Person has an ownership interest in such obligor, provided that such Person is not otherwise legally liable, directly or indirectly, for such obligor’s liabilities or obligations (e.g., by reason of a guaranty or contribution obligation, by operation of law or by reason of such Person’s being a general partner of such obligor).

 

Reimbursement Obligation .  The Borrower’s obligation to reimburse the Revolving Credit Lenders and the Administrative Agent and the applicable Fronting Bank on account of any drawing under any Letter of Credit as provided in §3.2.  Notwithstanding the foregoing, unless the Borrower shall notify the Administrative Agent of its intent to repay the Reimbursement Obligation on the date of the related drawing under any Letter of Credit as provided in §3.2, such Reimbursement Obligation shall simultaneously with such drawing be converted to and become a Revolving Credit Loan which is an Alternate Base Rate Loan as set forth in §3.3.

 

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

 

Related Parties.   See §16.

 

Release .  See §6.18(c)(iii).

 

Required Facility Lenders .  With respect to any Facility, the holders of at least 51% of (x) the sum of the aggregate unused Term Commitments and the aggregate Term Exposures or (y) the Total Revolving Credit Commitments, as the case may be, outstanding under such Facility (or, in the case of the Revolving Credit Facility, after termination of all of the Revolving Credit Commitments, the holders of at least 51% of the total Revolving Credit Exposures); provided that, in the event any Lender shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, “Required Facility Lenders” means Lenders (excluding all Defaulting Lenders) having at least 51% of (x) the sum of the aggregate unused Term Commitments and the aggregate Term Exposures or the (y) Total Revolving Credit Commitments (or total Revolving Credit Exposures), as the case may be, outstanding under such Facility (excluding the Term Commitments, Term Exposures, Revolving Credit Commitments and Revolving Credit Exposures, as applicable, of all Defaulting Lenders).

 

Required Lenders .  At any time, Lenders having unused Term Commitments, Term Exposures and Revolving Credit Commitments (or, after termination of all of the Revolving Credit Commitments, Revolving Credit Exposures) representing at least 51% of the sum of the total unused Term Commitments, Term Exposures and Revolving Credit Commitments (or Revolving Credit Exposures) at such time; provided that, in the event any of the Lenders shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, “Required Lenders” means Lenders (excluding all Defaulting Lenders) having unused Term Commitments, Term Exposures and Revolving Credit Commitments (or Revolving Credit Exposures) representing at least 51% of the sum of the total unused Term Commitments, Term Exposures and Revolving Credit Commitments (or Revolving Credit Exposures) of such Lenders (excluding all Defaulting Lenders) at such time.

 

Responsible Officer .  The chief executive officer, president, chief financial officer, chief operating officer, chief accounting 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

 

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general and administrative expenses to the extent included in Adjusted Unencumbered Property NOI relating to such Unencumbered Property for such period and (ii) actual management fees relating to such Unencumbered Property for such period.

 

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

 

Revolving Credit Commitment .  With respect to each Revolving Credit Lender, the amount set forth from time to time on Schedule 1.2 hereto or in an Assignment and Assumption Agreement as the amount of such Lender’s Revolving Credit Commitment to make Revolving Credit Loans to, and to participate in the issuance, extension and renewal of Letters of Credit for the account of, the Borrower, as the same may be reduced from time to time pursuant to §2.10 or increased pursuant to §2.2.  The initial aggregate amount of the Revolving Credit Commitments on the Closing Date is $600,000,000.

 

Revolving Credit Commitment Percentage .  With respect to each Revolving Credit Lender, a percentage equal to such Lender’s Revolving Credit Commitment divided by the Total Revolving Credit Commitment.

 

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

 

Revolving Credit Facility .  The Revolving Credit Commitments and the Revolving Credit Loans.

 

Revolving Credit Lender .  A Lender with a Revolving Credit Commitment and/or outstanding Revolving Credit Loans.  Unless the context otherwise requires, the term “Revolving Credit Lender” includes a Fronting Bank.

 

Revolving Credit Leverage Grid .  See the definition of “Applicable Margin” in §1.1.

 

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

 

Revolving Credit Loan(s) .  Each and every revolving credit loan made or to be made by the Revolving Credit Lenders to the Borrower pursuant to §2.

 

Revolving Credit Maturity Date .  January 25, 2021, or such earlier date on which the Revolving Credit Loans shall become due and payable pursuant to the terms hereof.  The Borrower may, by written notice to the Administrative Agent given at least thirty (30) days but not more than one hundred and twenty (120) days prior to the then scheduled Revolving Credit Maturity Date, extend the Revolving Credit Maturity Date up to two times for a period of six months per extension (for a total possible extension of one (1) year), provided that no Default or

 

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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 0.075% of the Total Revolving Credit Commitment (to the Administrative Agent for the ratable benefit of the Revolving Credit Lenders) on or prior to the then scheduled Revolving Credit Maturity Date.

 

Revolving Credit Notes .  Collectively, the separate promissory notes of the Borrower in favor of each Revolving Credit Lender in substantially the form of Exhibit A hereto, in the aggregate principal amount of the Total Revolving Credit Commitment, dated as of the date hereof or as of such later date as any Person becomes a Revolving Credit Lender under this Agreement, and completed with appropriate insertions, as each of such notes may be amended and/or restated from time to time.

 

Revolving Credit Ratings Grid .  See the definition of “Applicable Margin” in §1.1.

 

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

 

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, 2015, 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, 2016, 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

 

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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.

 

Syndication Agents .  Wells Fargo Bank, N.A. and Bank of America, N.A.

 

Synthetic Lease .  Any lease which is treated as an operating lease under GAAP and as a loan or financing for U.S. income tax purposes.

 

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

 

Term Borrowing .  See §2.1(b).

 

Term Commitment .  With respect to each Term Lender, (a) the amount set forth from time to time on Schedule 1.2 hereto or in an Assignment and Assumption Agreement as the amount of such Lender’s Term Commitment to make Term Loans to the Borrower, as the same may be reduced pursuant to §2.10 and (b) any New Term Commitment.  The aggregate amount of the Term Commitments on the Closing Date is $325,000,000.

 

Term Commitment Expiry Date .  With respect to the Term Commitment as of the Closing Date only (and not any New Term Commitment) January 25, 2018 (or, if such day is not a Business Day, the next succeeding Business Day).

 

Term Commitment Fee .  See §2.4(g).

 

Term Commitment Percentage .  (a) With respect to the Term Commitments as of the Closing Date for each Term Lender, a percentage equal to such Lender’s Term Commitment divided by the aggregate Term Commitments of all Term Lenders and (b) with respect to any New Term Commitment for each New Term Lender, the commitment percentage specified in the Additional Credit Extension Amendment for such New Term Commitment.

 

Term Commitment Period .  With respect to the Term Commitment as of the Closing Date only (and not any New Term Commitment), the period from the Closing Date to the earlier to occur of (a) the date on which Term Loans have been made in a principal amount equal to the

 

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aggregate Term Commitments, and (b) 5:00 p.m., New York time, on the Term Commitment Expiry Date.

 

Term Exposure .  With respect to any Term Lender at any time, the sum of the outstanding principal amount of such Lender’s Term Loans at such time.

 

Term Facility .  The Term Commitments and the Term Loans.

 

Term Lender .  A Lender with a Term Commitment and/or outstanding Term Loans.

 

Term Leverage Grid .  See the definition of “Applicable Margin” in §1.1.

 

Term LIBOR Rate Loan .  A Term Loan which is a LIBOR Rate Loan.

 

Term Loan(s) .  Each and every term loan made or to be made by the Term Lenders to the Borrower pursuant to §2, including any New Term Loan made pursuant to §2.2.

 

Term Maturity Date .  January 24, 2020, or such earlier date on which the Term Loans shall become due and payable pursuant to the terms hereof.  The Borrower may, by written notice to the Administrative Agent given at least thirty (30) days but not more than one hundred and twenty (120) days prior to the then scheduled Term Maturity Date, extend the Term 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 aggregate Term Exposures (to the Administrative Agent for the ratable benefit of the Term Lenders) on or prior to the then scheduled Term Maturity Date.

 

Term Notes .  Collectively, the separate promissory notes of the Borrower in favor of each Term Lender in substantially the form of Exhibit A hereto, in the principal amount of its Term Commitment, dated as of the date hereof or as of such later date as any Person becomes a Term Lender under this Agreement, and completed with appropriate insertions, as each of such notes may be amended and/or restated from time to time.

 

Term Ratings Grid .  See the definition of “Applicable Margin” in §1.1.

 

Total Leverage Ratio .  See §9.1.

 

Total Revolving Credit Commitment .  As of any date, the sum of the then-current Revolving Credit Commitments of the Revolving Credit Lenders, which shall not at any time exceed $600,000,000, except as such amount may be increased pursuant to §2.2 hereof or reduced pursuant to §2.10 hereof.

 

Type .  As to any 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.

 

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

 

Uniform Customs .  With respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, or any successor version thereof adopted by the Fronting Bank in the ordinary course of its business as a letter of credit issuer and in effect at the time of issuance of such Letter of Credit.

 

Unimproved Non-Income Producing Land .  Any Real Estate consisting of raw land which is unimproved by Buildings and does not generate any rental income or other income for MCRC or the Borrower or any of their respective Subsidiaries.

 

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.

 

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

 

wholly-owned Subsidiary .  Any Subsidiary (a) (i) of which MCRLP and/or MCRC shall at any time own directly or indirectly through a Subsidiary or Subsidiaries at least a controlling majority (by number of votes or controlling interests) of the outstanding voting interests and one hundred percent (100%) of the economic interests, of which at least ninety-five percent (95%) of the economic interests shall be owned by MCRLP and (ii) of which MCRC directly or indirectly (through wholly-owned Subsidiaries) acts as sole general partner or managing member or (b) (i) which shall have elected to be treated as a REIT and (ii) of which MCRLP and/or MCRC shall at any time own directly or indirectly through a Subsidiary or Subsidiaries at least a controlling majority (by number of votes or controlling interests) of the outstanding voting interests and substantially all of the economic interests.

 

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 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 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.

 

Write-Down and Conversion Powers .  With respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

WFB .  As defined in the preamble hereto.

 

§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.

 

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(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.

 

 

DB3/ 201174330.8

 

(vi)          The words “include”, “includes” and “including” are not limiting.

 

(vii)         All terms not specifically defined herein or by GAAP, which terms are defined in the Uniform Commercial Code as in effect in New York, have the meanings assigned to them therein.

 

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

 

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

 

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

 

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

 

§2.          THE CREDIT FACILITY .

 

§2.1        Commitment to Lend .

 

(a)           Revolving Credit Loans .  Subject to the provisions of §2.5 and the other terms and conditions set forth in this Agreement, each of the Revolving Credit Lenders severally agrees to lend to the Borrower and the Borrower may borrow, repay, and reborrow from each Revolving Credit Lender from time to time from the Closing Date up to but not including the Revolving Credit Maturity Date upon notice by the Borrower to the Administrative Agent given in accordance with §2.5 hereof, such Revolving Credit Loans as are requested by the Borrower up to a maximum aggregate principal amount outstanding (after giving effect to all amounts requested) at any one time equal to such Lender’s Revolving Credit Commitment minus such Lender’s Revolving Credit Commitment Percentage of the Maximum Drawing Amount; provided that the sum of the outstanding amount of the Revolving Credit Loans (after giving effect to all amounts requested) and the Competitive Bid Loans plus the Maximum Drawing Amount shall not at any time exceed the Total Revolving Credit Commitment in effect at such time.

 

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The Revolving Credit Loans shall be made pro rata in accordance with each Revolving Credit Lender’s Revolving Credit Commitment Percentage.  Each request for a Revolving Credit Loan made pursuant to §2.5 hereof shall constitute a representation and warranty by the Borrower that the conditions set forth in §10 have been satisfied or waived in accordance with §25 and that the conditions set forth in §11 have been satisfied on the date of such request and will be satisfied on the proposed Drawdown Date of the requested Revolving Credit Loan, provided that the making of such representation and warranty by the Borrower shall not limit the right of any Revolving Credit Lender not to lend if such conditions have not been met.  No Revolving Credit Loan shall be required to be made by any Revolving Credit Lender unless all of the conditions contained in §10 have been satisfied or waived in accordance with §25 and all of the conditions set forth in §11 have been met at the time of any request for a Revolving Credit Loan.

 

(b)           Term Loans .  Subject to the provisions of §2.5 and the other terms and conditions set forth in this Agreement, each of the Term Lenders severally agrees to lend to the Borrower and the Borrower may borrow from each Term Lender from time to time during the Term Commitment Period (and with respect to the New Term Loans only, during the New Term Loan Commitment Period applicable to such New Term Loan) upon notice by the Borrower to the Administrative Agent given in accordance with §2.5 hereof, such Term Loans as are requested by the Borrower (each, a “ Term Borrowing ”) up to a maximum aggregate principal amount (after giving effect to all amounts requested and all previous Term Borrowings) equal to such Lender’s Term Commitment; provided that (i) the aggregate amount of the Term Loans (after giving effect to all amounts requested and all previous Term Borrowings) made hereunder shall not at any time exceed the aggregate Term Commitments in effect at such time, (ii) each Term Borrowing shall be in a minimum amount of $20,000,000, (iii) the Borrower shall make Term Borrowings in an aggregate principal amount equal to at least 50% of the aggregate Term Commitments on or before July 25, 2017, unless the Borrower terminates a portion of the unused Term Commitments by either making an affirmative election in accordance with §2.10(b) hereof or borrowing less than such amount and thereby making a deemed election in accordance with §2.10(c) hereof, and (iv) all Term Borrowings shall be made no later than the last day of the Term Commitment Period.  The Term Commitments, with respect to the making of the Term Loans, shall expire on the last day of the Term Commitment Period (other than with respect to New Term Loans which shall expire on the last day of the applicable New Term Loan Commitment Period) (regardless of the failure of the Borrower to request Term Borrowings or the failure of the Borrower to fully utilize the Term Commitments).

 

The Term Loans shall be made pro rata in accordance with each Term Lender’s Term Commitment Percentage.  Each request for a Term Loan made pursuant to §2.5 hereof shall constitute a representation and warranty by the Borrower that the conditions set forth in §10 have been satisfied or waived in accordance with §25 and that the conditions set forth in §11 have been satisfied on the date of such request and will be satisfied on the proposed Drawdown Date of the requested Term Loan, provided that the making of such representation and warranty by the Borrower shall not limit the right of any Term Lender not to lend if such conditions have not been met.  No Term Loan shall be required to be made by any Term Lender unless all of the conditions contained in §10 have been satisfied or waived in accordance with §25 and all of the conditions set forth in §11 have been met at the time of any request for a Term Loan.

 

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§2.2        Incremental Facilities .  On up to four (4) occasions at any time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) an increase to the existing Revolving Credit Commitments (any such increase, the “New Revolving Credit Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Commitments”, together with the New Revolving Credit Commitments, the “Incremental Commitments”), by up to an aggregate amount not to exceed $350,000,000 for all Incremental Commitments.  Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent.  The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Commitments; provided that (x) any Incremental Commitments on any Increased Amount Date shall be in the minimum aggregate amount of $25,000,000, (y) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion and without any obligation to do so, to provide an Incremental Commitment, and if any Lender so approached fails to respond, such Lender shall be deemed to have declined to provide such Incremental Commitments, and (z) any Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval (not to be unreasonably withheld or delayed) of (1) the Borrower, unless such New Revolving Credit Lender or New Term Lender is an existing Lender or, in the case of a New Term Lender, a Lender Affiliate or Approved Fund thereof, (2) the Administrative Agent, unless such New Revolving Credit Lender or New Term Lender is an existing Lender or, in the case of a New Term Lender, a Lender Affiliate or Approved Fund thereof and (3) in the case of a New Revolving Credit Commitment, the Fronting Banks.

 

The terms and provisions of any New Revolving Credit Commitments shall be identical to the existing Revolving Credit Commitments.  The terms and provisions of any New Term Commitments and any New Term Loans shall (a) provide that the maturity date of any New Term Loan that is a separate tranche shall be no earlier than the Term Maturity Date, not have a weighted average life that is shorter than the initial Term Loan, and not have any scheduled amortization payments, (b) share ratably in any prepayments of the existing Term Facility, unless the Borrower and the New Term Lenders in respect of such New Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans or reasonably acceptable to the Administrative Agent and the New Term Lenders.

 

The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and, in the case of a New Term Commitment, the borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) as of the last day of the most recent quarter for which financial statements have been delivered pursuant to §7.4, the Borrower would have been in compliance with the financial covenants set forth in §9; (y) the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true

 

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and correct in all respects) on the effective date of such Incremental Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) (on and as of such earlier date) and except for changes in factual circumstances not prohibited under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Incremental Commitments; and (ii) a customary opinion of counsel to the Borrower and the Guarantors (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders, (iii) if requested by any Lender, new notes executed by the Borrower, payable to any new Lender, and replacement notes executed by the Borrower, payable to any existing Lenders, and (iv) if requested by any Lender if any Refinancing Mortgage exists at such time, a certificate from the Borrower (which certificate the Administrative Agent will forward to the Lenders) certifying that the property encumbered by such Refinancing Mortgage is not located in a Special Flood Hazard Area as designated by the Federal Emergency Management Agency in connection with the National Flood Insurance Program and such other evidence as may be reasonably requested by such Lender to demonstrate that such property is not located in a Special Flood Hazard Area as designated by the Federal Emergency Management Agency.

 

On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Credit Lender shall become a Revolving Credit Lender with respect to its New Revolving Credit Commitment and all matters relating thereto.

 

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

 

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The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Credit Commitments and the New Revolving Credit Lenders or the New Term Commitments and the New Term Lenders, as applicable, and (z) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the assignments contemplated by this §2.2.

 

The upfront fees payable to the New Revolving Credit Lenders and/or New Term Lenders shall be determined by the Borrower and the applicable New Revolving Credit Lenders and/or New Term Lenders.

 

The Incremental Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Revolving Credit Lenders or New Term Lenders, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register.  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 are consistent with this §2.2 and may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this §2.2.

 

§2.3        The Notes .  Unless any Lender elects not to receive a Note, the Revolving Credit Loans and Term Loans shall be evidenced by the Notes.  Return and cancellation of the “Notes” under the 2013 Agreement and issuance of initial Notes under this Agreement shall be governed by §27 hereof.  A Revolving Credit Note shall be payable to the order of each Revolving Credit Lender in the amount of its Revolving Credit Commitment and a Term Note shall be payable to each Term Lender in the amount of its Term Commitment.  The Borrower irrevocably authorizes each Lender to make or cause to be made, at or about the time of the Drawdown Date of any Loan or at the time of receipt of any payment of principal on such Lender’s Notes, an appropriate notation on such Lender’s Note Record reflecting the making of such Revolving Credit Loan, Term Loan or (as the case may be) the receipt of such payment.  The outstanding amount of the Loans set forth on such Lender’s Note Record shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount on such Lender’s Note Record shall not limit or otherwise affect the obligations of the Borrower hereunder or under any Note to make payments of principal of or interest on any Note when due.  The Administrative Agent hereby agrees to provide the Borrower with a statement concerning the outstanding amount of the Loans, in reasonable detail, on a monthly basis.  Although each Note shall be dated the Closing Date, interest in respect thereof shall be payable only for the periods during which the Loans evidenced thereby to the Borrower are outstanding, and although the stated amount of such Notes shall be equal to the applicable Commitment as of the date hereof, such Notes shall be enforceable, with respect to obligations of the Borrower to pay the principal amount thereof, only to the extent of the unpaid principal amount of the Loans to them as of any date of determination.

 

§2.4        Interest on Committed 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

 

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(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 Committed LIBOR Rate Loans .  Except as otherwise provided in §4.9, each Committed 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 such Committed LIBOR Rate Loans.

 

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

 

(d)           Arrangement Fee .  The Borrower agrees to pay to the Administrative Agent and the Arrangers certain fees as set forth in that certain letter agreement dated as of November 10, 2016 among the Borrower, MCRC and such parties (as amended from time to time, 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)            Facility Fee .  The Borrower agrees to pay to the Administrative Agent, for the account of the Revolving Credit Lenders based on their respective Revolving Credit Commitment Percentages, a fee (the “ Facility Fee ”) which is equal to the Facility Fee Rate multiplied by the Total Revolving Credit Commitment and which Facility Fee Rate varies based on the Borrower’s Debt Ratings or Total Leverage Ratio as set forth in the definition of “Applicable Margin” in §1.1.

 

The Facility Fee shall be payable quarterly, in arrears, for the immediately preceding calendar quarter, on the fifteenth (15th) day of each January, April, July, and October, or, if all of the Revolving Credit Commitments are terminated pursuant to the terms hereof, the Facility Fee shall be prorated to such termination date from the last date of payment thereof.

 

(g)           Term Commitment Fee .  The Borrower shall pay to the Administrative Agent for the account of each Term Lender (in accordance with its Term Commitment Percentage), a commitment fee (the “Term Commitment Fee”) which shall accrue and be payable on the daily amount of the unused Term Commitment of such Term Lender for the period beginning on the Closing Date, and continuing through the last day of the Term Commitment Period , at a rate of 0.25% per annum on the sum of the average daily unused portion of the aggregate Term Commitments.  All Term Commitment Fees shall be fully earned when paid and nonrefundable under any circumstances.  Accrued Term Commitment Fees shall be payable quarterly in arrears on the first day of each calendar quarter and on the last day of the Term Commitment Period.  All Term Commitment Fees shall be computed on the basis of a year of 365 or 366 days, as the case may be, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  For clarity, the Term Commitment Fee shall not be payable with respect to any portion of the Term Commitments that have been terminated or deemed terminated in accordance with §2.10(b) and §2.10(c).

 

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

 

§2.5        Requests for Committed Loans .

 

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

 

(i)            The Borrower shall submit a Completed Committed Loan Request to the Administrative Agent as provided in this §2.5.  Except as otherwise provided herein, each Completed Committed Loan Request shall be in a minimum amount of $2,000,000 or an integral multiple of $500,000 in excess thereof.  Each Completed Committed 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 Committed Loan Request is withdrawn (x) in the case of a request for a Committed LIBOR Rate Loan, at least three (3) Business Days prior to the proposed Drawdown Date for such Committed 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 Committed Loan.

 

(ii)           Each Completed Committed 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 (except as set forth below).  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; provided that in the case of a Revolving Credit Loan that is an Alternate Base Rate Loan, such delivery may be on the requested Drawdown Date so long as such delivery is made by 11:00 a.m. (New York City time) on the proposed Drawdown Date (and confirmed by telephone by such time).

 

(iii)          Each Completed Committed 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 specifying: (1) whether such Loan is to be a Revolving Credit Loan or a Term Loan, (2) the principal amount of the Loan requested, (3) the proposed Drawdown Date of such Loan, (4) the Interest Period applicable to such Loan, and (5) the Type of such Loan being requested.

 

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

 

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

 

(c)           the Administrative Agent shall have received a certificate in the form of Exhibit D hereto signed by a Responsible Officer of the Borrower certifying that,

 

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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 Committed Loan Request (and the Certificate in the form of Exhibit D ) to be delivered to each applicable 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 Committed Loan Request is received by the Administrative Agent (in the case of a Committed LIBOR Rate Loan).

 

§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 to convert any outstanding Committed Loan to a Committed 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 Committed 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 Committed Loans of any Type may be converted into a Committed 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.

 

(b)           Any Committed 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 Committed LIBOR Rate Loan as such, the affected Committed 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

 

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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 Committed LIBOR Rate Loan pursuant to §2.5, elect to convert an Alternate Base Rate Loan to a Committed LIBOR Rate Loan pursuant to §2.6(a), elect to continue a Committed LIBOR Rate Loan pursuant to §2.6(b) or have continued a Committed LIBOR Rate Loan pursuant to §2.6(c) if, after giving effect thereto, there would be greater than twenty (20) Committed Credit LIBOR Rate Loans then outstanding.  Any Loan Request for a Committed LIBOR Rate Loan that would create greater than twenty (20) Committed LIBOR Rate Loans outstanding shall be deemed to be a Loan Request for an Alternate Base Rate Loan.

 

§2.7        Funds for Committed 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 Committed Loan (other than a Revolving Credit Loan that is an Alternate Base Rate Loan requested on such Drawdown Date) and not later than 2:00 p.m. (New York City time) on the proposed Drawdown Date of any Revolving Credit Loan that is an Alternate Base Rate Loan requested on such Drawdown Date, each of the applicable 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 applicable Commitment Percentage of the amount of the requested Committed Loan.  Upon receipt from each applicable 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 applicable 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., (or 3:00 p.m., in the case of a Revolving Credit Loan that is an Alternate Base Rate Loan requested on such Drawdown Date) 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 Committed 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 applicable Commitment Percentage of the requested Committed 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 applicable Commitment Percentage of any requested Committed 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 applicable Commitment Percentage of the requested Committed Loan or to increase its applicable Commitment Percentage on account of such failure or otherwise.

 

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(b)           The Administrative Agent may, unless notified to the contrary by any Lender prior to a Drawdown Date, assume that such Lender has made available to the Administrative Agent on such Drawdown Date the amount of such Lender’s applicable 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 applicable Commitment Percentage of such Committed Loan, multiplied by (iii) a fraction, the numerator of which is the number of days that elapsed from and including such Drawdown Date to the date on which the amount of such Lender’s applicable Commitment Percentage of such Committed 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 applicable Commitment Percentage of such Committed 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 applicable Committed Loans made on such Drawdown Date.

 

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

 

(b)           The Borrower promises to pay on the Term Maturity Date, and there shall become absolutely due and payable on the Term Maturity Date, all unpaid principal of the Term 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 with respect to the Term Facility.

 

§2.9        Optional Repayments of Committed Loans .  The Borrower shall have the right, at its election, to prepay the outstanding amount of the Committed Loans, in whole or in part, at any time without penalty or premium; provided that the outstanding amount of any Committed LIBOR Rate Loans may not be prepaid unless the Borrower pays any LIBOR Breakage Costs for each Committed 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

 

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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.  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.  Any Term Loans that are prepaid may not be reborrowed.

 

§2.10      Reduction of Revolving Credit Commitments and Term Commitments .  (a) The Borrower shall have the right at any time and from time to time upon five (5) Business Days prior written notice to the Administrative Agent to reduce by $10,000,000 or an integral multiple thereof or terminate entirely the unborrowed portion of the Total Commitment (with outstanding Letters of Credit to be considered as being borrowed for the purposes hereof), whereupon the Revolving Credit Commitments of the Revolving Credit Lenders shall be reduced pro rata in accordance with their respective Revolving Credit Commitment Percentages of the amount specified in such notice or, as the case may be, terminated; provided that unless the Total Revolving Credit Commitment is reduced to zero, no reduction shall be made which would reduce the Total Revolving Credit Commitment below $100,000,000.  Promptly after receiving any notice of the Borrower delivered pursuant to this §2.10, the Administrative Agent will notify the Revolving Credit Lenders of the substance thereof.  Upon the effective date of any such reduction or termination, the Borrower shall pay to the Administrative Agent for the respective accounts of the Lenders the full amount of any Facility Fee then accrued on the amount of the reduction.  No reduction or termination of the Revolving Credit Commitments may be reinstated.  No reduction of any Revolving Credit Commitment under this §2.10(a) shall limit or reduce the Borrower’s right to request an Incremental Commitment under §2.2 hereof (subject to the limitations on Incremental Commitments set forth therein).

 

(b)           The Borrower shall have the right at any time and from time to time upon five (5) Business Days prior written notice to the Administrative Agent to reduce by $10,000,000 or an integral multiple thereof or terminate entirely the unborrowed portion of the Term Commitments, whereupon the Term Commitments of the Term Lenders shall be reduced pro rata in accordance with their respective Term Commitment Percentages of the amount specified in such notice or, as the case may be, terminated.  Promptly after receiving any notice of the Borrower delivered pursuant to this §2.10, the Administrative Agent will notify the Term Lenders of the substance thereof.  Upon the effective date of any such reduction or termination, the Borrower shall pay to the Administrative Agent for the respective accounts of the Lenders the full amount of any Term Commitment Fee then accrued on the amount of the reduction.  No reduction or termination of the Term Commitments may be reinstated.  No reduction or termination of any Term Commitment under this §2.10(b) shall limit or reduce the Borrower’s right to request an Incremental Commitment under §2.2 hereof (subject to the limitations on Incremental Commitments set forth therein).

 

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(c)           If Borrower does not make Term Borrowings in an aggregate principal amount equal to at least 50% of the aggregate Term Commitments on or before July 25, 2017, then the Borrower shall be deemed to have elected to terminate a portion of the unused Term Commitments in the amount necessary to cause compliance with the above minimum Term Borrowings (for example, if the Borrower has made only $100,000,000 of Term Borrowings by July 25, 2017, then the unused aggregate Term Commitments shall be reduced from $150,000,000 to $100,000,000 on such date so that the Borrower will be in compliance with the above minimum Term Borrowings.  If requested by the Administrative Agent, the Borrower shall deliver to the Administrative Agent those notices required by §2.10(b) that are necessary to effectuate the reductions in the unused Term Commitments described in the preceding sentence. Solely for purposes of determining whether the Borrower is deemed pursuant to this §2.10(c) to have elected to terminate a portion of the unused Term Commitments due to the Borrower’s failure to make Term Borrowings in the minimum amounts required by this §2.10(c), the Borrower shall be deemed to have made Term Borrowings to the extent of any Defaulting Lender’s failure to fund Term Borrowings requested by the Borrower in accordance with this Agreement.  No reduction or termination of any Term Commitment under this §2.10(c) shall limit or reduce the Borrower’s right to request an Incremental Commitment under §2.2 hereof (subject to the limitations on Incremental Commitments set forth therein).

 

(d)           The Term Commitments, to the extent terminated pursuant to §2.10(b) or §2.10(c), may not be reinstated.

 

§2A.       COMPETITIVE BID LOANS .

 

§2A.1.            The Competitive Bid Options .  In addition to the Committed Loans made pursuant to §2 hereof, and provided that at the time of such request no Default or Event of Default has occurred and is continuing and the Borrower maintains an Investment Grade Credit Rating from two nationally-recognized rating agencies reasonably acceptable to the Administrative Agent (one of which must be Moody’s or S&P so long as such Persons are in the business of providing debt ratings for the REIT industry), the Borrower may from time to time request Competitive Bid Loans pursuant to the terms of this §2A.  The Revolving Credit Lenders may, but shall have no obligation to, make such offers and the Borrower may, but shall have no obligation to, accept such offers in the manner set forth in this §2A.  Notwithstanding any other provision herein to the contrary, at no time shall the aggregate principal amount of Competitive Bid Loans outstanding at any time exceed the lesser of (a) the Total Revolving Credit Commitment minus the sum of (i) the aggregate outstanding principal amount of Revolving Credit Loans, plus (ii) the Maximum Drawing Amount of Letters of Credit outstanding at such time or (b) 50% of the Total Revolving Credit Commitment.

 

§2A.2.            Competitive Bid Loan Accounts: Competitive Bid Notes .

 

(a)           The obligation of the Borrower to repay the outstanding principal amount of any and all Competitive Bid Loans, plus interest at the applicable Competitive Bid Rate or the sum of the Competitive Bid Margin plus the applicable LIBOR Rate (as the case may be) accrued thereon, shall be evidenced by this Credit Agreement and by individual loan accounts (the “ Competitive Bid Loan Accounts ” and individually, a “ Competitive Bid Loan Account” ) maintained by the Administrative Agent on its books for each of the Revolving Credit Lenders, it

 

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being the intention of the parties hereto that, except as provided for in paragraph (b) of this §2A.2, the Borrower’s obligations with respect to Competitive Bid Loans are to be evidenced only as stated herein and not by separate promissory notes and shall hereby constitute an absolute promise to pay when due, without notice, demand, presentment or setoff.

 

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

 

(c)           The Borrower irrevocably authorizes (i) each Revolving Credit Lender to make or cause to be made, in connection with a Drawdown Date of any Competitive Bid Loan or at the time of receipt of any payment of principal on such Lender’s Competitive Bid Note in the case of a Competitive Bid Note, and (ii) the Administrative Agent to make or cause to be made, in connection with a Drawdown Date of any Competitive Bid Loan or at the time of receipt of any payment of principal on such Lender’s Competitive Bid Loan Account in the case of a Competitive Bid Loan Account, an appropriate notation on such Lender’s records or on the schedule attached to such Lender’s Competitive Bid Note or a continuation of such schedule attached thereto, or the Administrative Agent’s records, as applicable, reflecting the making of the Competitive Bid Loan or the receipt of such payment (as the case may be) and may, prior to any transfer of a Competitive Bid Note, endorse on the reverse side thereof the outstanding principal amount of Competitive Bid Loans evidenced thereby.  The outstanding amount of the Competitive Bid Loans set forth on such Lender’s record or the Administrative Agent’s records, as applicable, shall be prima facie evidence of the principal amount thereof owing and unpaid to such Lender, but the failure to record, or any error in so recording, any such amount shall not limit or otherwise affect the obligations of the Borrower hereunder to make payments of principal of or interest on any Competitive Bid Loan when due.

 

§2A.3.            Competitive Bid Quote Request; Invitation for Competitive Bid Quotes .

 

(a)           When the Borrower wishes to request offers to make Competitive Bid Loans under this §2A, it shall transmit to the Administrative Agent by telex or facsimile a Competitive Bid Quote Request substantially in the form of Exhibit H hereto (a “ Competitive Bid Quote Request ”) so as to be received no later than 11:00 a.m. (New York City time) (i) four (4) Business Days prior to the requested Drawdown Date in the case of a Competitive Bid Loan bearing interest calculated by reference to the LIBOR Rate (a “ LIBOR Competitive Bid Loan ”) or (ii) one (1) Business Day prior to the requested Drawdown Date in the case of an Competitive

 

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Bid Loan bearing interest calculated by reference to a fixed rate of interest (an “ Absolute Competitive Bid Loan ”), specifying:

 

(A)          the requested Drawdown Date (which must be a Business Day);

 

(B)          the aggregate amount of such Competitive Bid Loans, which shall be $5,000,000 or larger multiple of $1,000,000;

 

(C)          the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period; and

 

(D)          whether the Competitive Bid Quotes requested are for LIBOR Competitive Bid Loans or Absolute Competitive Bid Loans.

 

The Borrower may request offers to make Competitive Bid Loans for more than one Interest Period in a single Competitive Bid Quote Request.  No new Competitive Bid Quote Request shall be given until the Borrower has notified the Administrative Agent of its acceptance or non-acceptance of the Competitive Bid Quotes relating to any outstanding Competitive Bid Quote Request.

 

(b)           Promptly upon receipt of a Competitive Bid Quote Request, the Administrative Agent shall send to the Revolving Credit Lenders by telecopy or facsimile transmission an Invitation for Competitive Bid Quotes substantially in the form of Exhibit I hereto, which shall constitute an invitation by the Borrower to each Revolving Credit Lender to submit Competitive Bid Quotes in accordance with this §2A.

 

§2A.4.            Alternative Manner of Procedure .  If, after receipt by the Administrative Agent and each of the Revolving Credit Lenders of a Competitive Bid Quote Request from the Borrower in accordance with §2A.3, the Administrative Agent or any Revolving Credit Lender shall be unable to complete any procedure of the auction process described in §§2A.5 through 2A.6 (inclusive) due to the inability of such Person to transmit or receive communications through the means specified therein, such Person may rely on telephonic notice for the transmission or receipt of such communications.  In any case where such Person shall rely on telephone transmission or receipt, any communication made by telephone shall, as soon as possible thereafter, be followed by written confirmation thereof.

 

§2A.5.            Submission and Contents of Competitive Bid Quotes .

 

(a)           Each Revolving Credit Lender may, but shall be under no obligation to, submit a Competitive Bid Quote containing an offer or offers to make Competitive Bid Loans in response to any Competitive Bid Quote Request.  Each Competitive Bid Quote must comply with the requirements of this §2A.5 and must be submitted to the Administrative Agent by telex or facsimile transmission at its offices as specified in or pursuant to §19 not later than (i) 10:00 a.m. (New York City time) on the third LIBOR Business Day prior to the proposed Drawdown Date, in the case of a LIBOR Competitive Bid Loan or (ii) 10:00 a.m. (New York City time) on the proposed Drawdown Date, in the case of an Absolute Competitive Bid Loan, provided that Competitive Bid Quotes may be submitted by the Administrative Agent in its capacity as a Revolving Credit Lender only if it submits its Competitive Bid Quote to the Borrower not later

 

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than (x) one hour prior to the deadline for the other Revolving Credit Lenders, in the case of a LIBOR Competitive Bid Loan or (y) 15 minutes prior to the deadline for the other Revolving Credit Lenders, in the case of an Absolute Competitive Bid Loan.  Subject to the provisions of §§10 and 11 hereof, any Competitive Bid Quote so made shall be irrevocable except with the written consent of the Administrative Agent given on the instructions of the Borrower.

 

(b)           Each Competitive Bid Quote shall be in substantially the form of Exhibit J hereto and shall in any case specify:

 

(i)            the proposed Drawdown Date;

 

(ii)           the principal amount of the Competitive Bid Loan for which each proposal is being made, which principal amount (w) may be greater than or less than the Commitment of the quoting Lender, (x) must be $1,000,000 or a larger multiple of $500,000, (y) may not exceed the aggregate principal amount of Competitive Bid Loans for which offers were requested and (z) may be subject to an aggregate limitation as to the principal amount of Competitive Bid Loans for which offers being made by such quoting Lender may be accepted;

 

(iii)          the Interest Periods for which Competitive Bid Quotes are being submitted;

 

(iv)          in the case of a LIBOR Competitive Bid Loan, the margin above or below the applicable LIBOR Rate (the “ Competitive Bid Margin ”) offered for each such Competitive Bid Loan, expressed as a percentage (specified to the nearest 1/10,000th of 1%) to be added to or subtracted from such LIBOR Rate;

 

(v)           in the case of an Absolute Competitive Bid Loan, the rate of interest per annum (specified to the nearest 1/10,000th of 1%) (the “ Competitive Bid Rate ”) offered for each such Absolute Competitive Bid Loan; and

 

(vi)          the identity of the quoting Revolving Credit Lender.

 

A Competitive Bid Quote may include up to five (5) separate offers by the quoting Revolving Credit Lender with respect to each Interest Period specified in the related Invitation for Competitive Bid Quotes. Competitive Bid Loans may, as provided in §18.10, be funded by a Revolving Credit Lender’s Designated Bank.  A Revolving Credit Lender making a Competitive Bid Quote may, but shall not be required to, specify in its Competitive Bid Quote whether the related Competitive Bid Loans are intended to be funded by such Lender’s Designated Bank, as provided in §18.10.

 

(c)           Any Competitive Bid Quote shall be disregarded if it:

 

(i)            is not substantially in the form of Exhibit J hereto;

 

(ii)           contains qualifying, conditional or similar language;

 

(iii)          proposes terms other than or in addition to those set forth in the applicable Invitation for Competitive Bid Quotes; or

 

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(iv)                               arrives after the time set forth in §2A.5(a) hereof.

 

§2A.6.                                     Notice to Borrower .  The Administrative Agent shall promptly notify the Borrower of the terms (a) of any Competitive Bid Quote submitted by a Revolving Credit Lender that is in accordance with §2A.5 and (b) of any Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a previous Competitive Bid Quote submitted by such Lender with respect to the same Competitive Bid Quote Request.  Any such subsequent Competitive Bid Quote shall be disregarded by the Administrative Agent unless such subsequent Competitive Bid Quote is submitted solely to correct a manifest error in such former Competitive Bid Quote and was received by the Administrative Agent within the time period required in §2A.5(a) for receipt of Competitive Bid Quotes.  The Administrative Agent’s notice to the Borrower shall specify (i) the aggregate principal amount of Competitive Bid Loans for which offers have been received for each Interest Period specified in the related Competitive Bid Quote Request, (ii) the respective principal amounts and Competitive Bid Margins or Competitive Bid Rates, as the case may be, so offered, and the identity of the respective Revolving Credit Lenders submitting such offers, and (iii) if applicable, limitations on the aggregate principal amount of Competitive Bid Loans for which offers in any single Competitive Bid Quote may be accepted.

 

§2A.7.                                     Acceptance and Notice by Borrower and Administrative Agent .  Not later than 11:00 a.m. (New York City time) on (a) the third Business Day prior to the proposed Drawdown Date, in the case of a LIBOR Competitive Bid Loan or (b) the proposed Drawdown Date, in the case of an Absolute Competitive Bid Loan, the Borrower shall notify the Administrative Agent of its acceptance or non-acceptance of each Competitive Bid Quote in substantially the form of Exhibit K hereto.  The Borrower may accept any Competitive Bid Quote in whole or in part; provided that :

 

(i)                                      the aggregate principal amount of each Competitive Bid Loan may not exceed the applicable amount set forth in the related Competitive Bid Quote Request;

 

(ii)                                   acceptance of offers may only be made on the basis of ascending Competitive Bid Margins or Competitive Bid Rates, as the case may be, and

 

(iii)                                the Borrower may not accept any offer that is described in §2A.5(c) or that otherwise fails to comply with the requirements of this Agreement.

 

The Administrative Agent shall promptly notify each Revolving Credit Lender which submitted a Competitive Bid Quote of the Borrower’s acceptance or non-acceptance thereof.  At the request of any Revolving Credit Lender which submitted a Competitive Bid Quote and with the consent of the Borrower, the Administrative Agent will promptly notify all Revolving Credit Lenders which submitted Competitive Bid Quotes of (a) the aggregate principal amount of, and (b) the range of Competitive Bid Rates or Competitive Bid Margins of, the accepted Competitive Bid Loans for each requested Interest Period.

 

§2A.8.                                     Allocation by Administrative Agent .  If offers are made by two (2) or more Revolving Credit Lenders with the same Competitive Bid Margin or Competitive Bid Rate, as the case may be, for a greater aggregate principal amount than the amount in respect of which offers are accepted for the related Interest Period, the principal amount of Competitive Bid Loans

 

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in respect of which such offers are accepted shall be allocated by the Administrative Agent among such Lenders as nearly as possible (in such multiples, not less than $1,000,000, as the Administrative Agent may deem appropriate) in proportion to the aggregate principal amounts of such offers.  Determination by the Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence of manifest error.

 

§2A.9.                                     Funding of Competitive Bid Loans .  If, on or prior to the Drawdown Date of any Competitive Bid Loan, the Total Revolving Credit Commitment has not terminated in full and if, on such Drawdown Date, the applicable conditions of §§10 and 11 hereof are satisfied, and the Administrative Agent shall have received a certificate in the form of Exhibit D hereto, the Revolving Credit Lender or Lenders whose offers the Borrower has accepted will fund each Competitive Bid Loan so accepted.  Such Lender or Lenders will make such Competitive Bid Loans by crediting the Administrative Agent for further credit to the Borrower’s specified account with the Administrative Agent, in immediately available funds not later than 1:00 p.m. (New York City time) on such Drawdown Date.

 

§2A.10.                              Funding Losses .  If, after acceptance of any Competitive Bid Quote pursuant to §2A, the Borrower (a) fails to borrow any Competitive Bid Loan so accepted on the date specified therefor, or (b) repays the outstanding amount of the Competitive Bid Loan on or prior to the last day of the Interest Period relating thereto, the Borrower shall indemnify the Revolving Credit Lender making such Competitive Bid Quote or funding such Competitive Bid Loan against any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such unborrowed Loans, including, without limitation compensation as provided in §4.8.

 

§2A.11.                              Repayment of Competitive Bid Loans; Interest .  The principal of each Competitive Bid Loan shall become absolutely due and payable by the Borrower on the last day of the Interest Period relating thereto, and the Borrower hereby absolutely and unconditionally promises to pay to the Administrative Agent for the account of the relevant Revolving Credit Lenders at or before 1:00 p.m. (New York City time) on the last day of the Interest Periods relating thereto the principal amount of all such Competitive Bid Loans, plus interest thereon at the applicable Competitive Bid Rates or the sum of the Competitive Bid Margin plus the applicable LIBOR Rate (as the case may be).  The Competitive Bid Loans shall bear interest at the rate per annum specified in the applicable Competitive Bid Quotes.  Interest on the Competitive Bid Loans shall be payable (a) on the last day of the applicable Interest Periods, and if any such Interest Period is longer than three months, also on the last day of the third month following the commencement of such Interest Period and, if applicable, on the last day of every third month thereafter in such Interest Period, and (b) on the Revolving Credit Maturity Date.  Subject to the terms of this Credit Agreement, the Borrower may make Competitive Bid Quote Requests with respect to new borrowings of any amounts so repaid prior to the Revolving Credit Maturity Date.  The provisions of §2.6 shall not apply to Competitive Bid Loans.

 

§2A.12.                        Optional Repayment of Competitive Bid Loans .  The Borrower shall have the right, at its election, to repay the outstanding amount of any of the Competitive Bid Loans, as a whole or in part, at any time without penalty or premium, provided that any full or partial prepayment of the outstanding amount of any Competitive Bid Loan pursuant to this §2A.12 may be made only on the last day of the Interest Period relating thereto, or, if made prior to such

 

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date, shall be made subject to the provisions of §2A.10 hereof.  The Borrower shall give the Administrative Agent no less than three (3) Business Days notice of any proposed prepayment pursuant to this §2A.12, specifying the proposed date of prepayment of the Competitive Bid Loan and the principal amount to be prepaid.  Each such partial prepayment of any Competitive Bid Loan shall be in an integral multiple of $500,000, and shall be accompanied by the payment of accrued interest on the principal prepaid to the date of prepayment.

 

§3.                                LETTERS OF CREDIT .

 

§3.1                         Letter of Credit Commitments .

 

§3.1.1               Commitment to Issue Letters of Credit .  Subject to the terms and conditions hereof and the execution and delivery by the Borrower of a letter of credit application on the applicable Fronting Bank’s customary form as part of a Completed Committed Loan Request (a “ Letter of Credit Application ”), such Fronting Bank on behalf of the Lenders and in reliance upon the agreement of the Lenders set forth in §3.1.4 and upon the representations and warranties of the Borrower contained herein, agrees, in its individual capacity, to issue, extend and renew for the account of the Borrower one or more standby or documentary letters of credit (individually, a “ Letter of Credit ”), in such form as may be requested from time to time by the Borrower and reasonably agreed to by such Fronting Bank; provided , however , that, after giving effect to such Completed Committed Loan Request, (a) unless such Fronting Bank otherwise consents, the Maximum Drawing Amount of all Letters of Credit issued by such Fronting Bank shall not exceed its L/C Commitment, (b) the Maximum Drawing Amount of all Letters of Credit shall not exceed $100,000,000 at any one time and (c) the sum of (i) the Maximum Drawing Amount on all Letters of Credit and (ii) the amount of all Revolving Credit Loans and Competitive Bid Loans outstanding shall not exceed the Total Revolving Credit Commitment in effect at such time; provided that the Maximum Drawing Amount of all Letters of Credit shall not exceed $60,000,000 at any one time unless and until the Borrower delivers evidence satisfactory to the Administrative Agent that the board of directors of MCRC has authorized an increase in such Letter of Credit sublimit to $100,000,000.  The applicable Fronting Bank shall give the Administrative Agent prompt notice of the issuance of each Letter of Credit, and the Administrative Agent shall forward such notice to Revolving Credit Lenders in accordance with §14.12.

 

§3.1.2               Letter of Credit Applications .  Each Letter of Credit Application shall be completed to the reasonable satisfaction of the Administrative Agent and the applicable Fronting Bank.  In the event that any provision of any Letter of Credit Application shall be inconsistent with any provision of this Agreement (including provisions applicable to a Completed Committed Loan Request), then the provisions of this Agreement shall, to the extent of any such inconsistency, govern.

 

§3.1.3               Terms of Letters of Credit .  Each Letter of Credit issued, extended or renewed hereunder shall, among other things, (i) provide for the payment of sight drafts for honor thereunder when presented in accordance with the terms thereof and when accompanied by the documents described therein, and (ii) have an expiry date no later than the earlier of (x) one year from the date of issuance or (y) the date which is thirty (30) days prior to the Revolving Credit Maturity Date; provided that such Letter of Credit may have an automatic extension

 

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clause (an “Auto-Extension Letter of Credit”) allowing for the extension of the expiration date thereof if a notice of non-extension is not given from the applicable Fronting Bank to the Letter of Credit beneficiary by a specified date within a twelve-month period .  Notwithstanding any other provision of this Agreement, if requested by the Borrower, the applicable Fronting Bank shall issue a Letter of Credit with, and/or not give a notice of non-extension of an Auto-Extension Letter of Credit to Letter of Credit beneficiaries thereby providing, an expiration date that is up to one (1) year after the Revolving Credit Maturity Date, provided that no later than thirty (30) days prior to the Revolving Credit Maturity Date, the Borrower provides a cash deposit as cash collateral for the Borrower’s Reimbursement Obligations in the full amount available to be drawn under all Letters of Credit with expiration dates after the Revolving Credit Maturity Date and all Auto-Extension Letters of Credit for which applicable Fronting Bank has not given a notice of non-extension to the Letter of Credit beneficiary.  Any such additional cash collateral shall be held by the Administrative Agent, for the benefit of the Revolving Credit Lenders, in accordance with the terms of §3.8.  Each Letter of Credit so issued, extended or renewed shall be subject to the Uniform Customs.

 

§3.1.4               Reimbursement Obligations of Lenders .  Each Revolving Credit Lender severally agrees that it shall be absolutely liable, without regard to the occurrence of any Default or Event of Default or any other condition precedent whatsoever, to the extent of such Lender’s Revolving Credit Commitment Percentage, to reimburse the applicable Fronting Bank on demand pursuant to §3.3 for the amount of each draft paid by such Fronting Bank under each Letter of Credit to the extent that such amount is not reimbursed by the Borrower pursuant to §3.2 (such agreement for a Revolving Credit Lender being called herein the “ Letter of Credit Participation ” of such Lender).

 

§3.2                         Reimbursement Obligation of the Borrower .  In order to induce the Fronting Banks to issue, extend and renew each Letter of Credit and the Revolving Credit Lenders to participate therein, the Borrower hereby agrees, except as contemplated in §3.3 below, to reimburse or pay to the Administrative Agent, for the account of the Revolving Credit Fronting Bank or (as the case may be) the Revolving Credit Lenders, with respect to each Letter of Credit issued, extended or renewed by such Fronting Bank hereunder,

 

(a)                                  except as otherwise expressly provided in §3.2(b) or §3.3, on each date that any draft presented under such Letter of Credit is honored in accordance with its terms by the applicable Fronting Bank, or the applicable Fronting Bank otherwise makes a payment with respect thereto in accordance with applicable law, (i) the amount paid by the applicable Fronting Bank under or with respect to such Letter of Credit, and (ii) any amounts payable pursuant to §4.5 hereof under, or with respect to, such Letter of Credit, and

 

(b)                                  upon the termination of the Total Revolving Credit Commitment, or the acceleration of the Reimbursement Obligations with respect to all Letters of Credit in accordance with §12, an amount equal to the then Maximum Drawing Amount on all Letters of Credit, which amount shall be held by the Administrative Agent as cash collateral for the benefit of the Fronting Banks, the Revolving Credit Lenders and the Administrative Agent for all Reimbursement Obligations pursuant to §3.8; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due

 

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and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in §12.1(g) or §12.1(h).

 

Each such payment shall be made to the Administrative Agent at the Administrative Agent’s Head Office in immediately available funds.  Interest on any and all amounts not converted to a Revolving Credit Loan pursuant to §3.3 and remaining unpaid by the Borrower under this §3.2 at any time from the date such amounts become due and payable (whether as stated in this §3.2, by acceleration or otherwise) until payment in full (whether before or after judgment) shall be payable to the Administrative Agent for the benefit of the Revolving Credit Lenders on demand at the rate specified in §4.9 for overdue principal on the Revolving Credit Loans.

 

§3.3                         Letter of Credit Payments; Funding of a Revolving Credit Loan .  If any draft shall be presented or other demand for payment shall be made under any Letter of Credit, the applicable Fronting Bank shall notify the Administrative Agent, which shall notify the Borrower and the Lenders of the date and amount of the draft presented or demand for payment and of the date and time when it expects to pay such draft or honor such demand for payment, and, except as provided in this §3.3, the Borrower shall reimburse Administrative Agent, as set forth in §3.2 above.  Notwithstanding anything contained in §3.2 above or this §3.3 to the contrary, however, unless the Borrower shall have notified the Administrative Agent and the applicable Fronting Bank prior to 11:00 a.m. (New York time) on the Business Day immediately prior to the date of such drawing that the Borrower intends to reimburse such Fronting Bank for the amount of such drawing with funds other than the proceeds of the Revolving Credit Loans, the Borrower shall be deemed to have timely given a Completed Committed Loan Request pursuant to §2.5 to the Administrative Agent, requesting a Revolving Credit Loan that is an Alternate Base Rate Loan on the date on which such drawing is honored and in an amount equal to the amount of such drawing.  The Borrower may thereafter convert any such Alternate Base Rate Loan to a Revolving Credit Loan of another Type in accordance with §2.6.  Each Revolving Credit Lender shall, in accordance with §2.7, make available such Lender’s Revolving Credit Commitment Percentage of such Revolving Credit Loan to the Administrative Agent, the proceeds of which shall be applied directly by the Administrative Agent to reimburse the applicable Fronting Bank for the amount of such draw.  In the event that any Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s Revolving Credit Commitment Percentage of such Revolving Credit Loan on the date of the drawing, the Administrative Agent shall be entitled to recover such amount on demand from such Lender plus any additional amounts payable under §2.7(b) in the event of a late funding by a Lender.  Each Fronting Bank is irrevocably authorized by the Borrower and each of the Revolving Credit Lenders to honor draws on each Letter of Credit by the beneficiary thereof in accordance with the terms of the Letter of Credit.  The responsibility of such Fronting Bank to the Borrower and the Revolving Credit Lenders shall be only to determine that the documents (including each draft) delivered under each Letter of Credit in connection with such presentment shall be in conformity in all material respects with such Letter of Credit.

 

§3.4                         Obligations Absolute .  The Borrower’s obligations under this §3 shall be absolute and unconditional under any and all circumstances and irrespective of the occurrence of any Default or Event of Default or any condition precedent whatsoever or any setoff, counterclaim or defense to payment which the Borrower may have or have had against the Administrative Agent,

 

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any Fronting Bank, any Lender or any beneficiary of a Letter of Credit.  The Borrower further agrees with the Administrative Agent, the Fronting Banks and the Lenders that the Administrative Agent, the Fronting Banks and the Lenders shall not be responsible for, and the Borrower’s Reimbursement Obligations under §3.2 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon (so long as the documents delivered under each Letter of Credit in connection with such presentment shall be in the form required by, and in conformity in all material respects with, such Letter of Credit), even if such documents should in fact prove to be in any or all respects invalid, fraudulent or forged, or any dispute between or among any of the Borrower, the beneficiary of any Letter of Credit or any financing institution or other party to whom any Letter of Credit may be transferred, or any claims or defenses whatsoever of the Borrower against the beneficiary of any Letter of Credit or any such transferee.  If done in good faith and absent gross negligence, the Administrative Agent, the Fronting Banks and the Lenders shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit.  The Borrower agrees that any action taken or omitted by the Administrative Agent, any Fronting Bank or any Lender under or in connection with each Letter of Credit and the related drafts and documents, if done in good faith and absent gross negligence, shall be binding upon the Borrower and shall not result in any liability on the part of the Administrative Agent, any Fronting Bank or any Lender to the Borrower.

 

§3.5                         Reliance by Issuer .  To the extent not inconsistent with §3.4, the Administrative Agent and each Fronting Bank shall be entitled to rely, and shall be fully protected in relying upon, any Letter of Credit, draft, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel, independent accountants and other experts selected by the Administrative Agent or such Fronting Bank.  The Administrative Agent and each Fronting Bank shall in all cases be fully protected by the Revolving Credit Lenders in acting, or in refraining from acting, under this §3 in accordance with a request of the Required Facility Lenders under the Revolving Credit Facility, and such request and any action taken or failure to act pursuant thereto shall be binding upon the Revolving Credit Lenders and all future holders of the Revolving Credit Notes or of a Letter of Credit Participation.

 

§3.6                         Letter of Credit Fee .  The Borrower shall pay to the Administrative Agent a fee (in each case, a “ Letter of Credit Fee ”) in an amount equal to (x) a rate per annum equal to the Applicable L/C Percentage minus 0.0625% multiplied by (y) the face amount of each outstanding Letter of Credit, which fee (a) shall be payable quarterly in arrears on the third (3 rd ) Business Day following the last day of each March, June, September and December for the immediately preceding calendar quarter, with a final payment on the Revolving Credit Maturity Date or any earlier date on which the Revolving Credit Commitments shall terminate (which Letter of Credit Fee shall be pro-rated for any calendar quarter in which such Letter of Credit is issued, drawn upon or otherwise reduced or terminated) and (b) shall be for the accounts of the Revolving Credit Lenders (including the Fronting Banks) pro rata in accordance with their respective Revolving Credit Commitment Percentages.  In respect of each Letter of Credit, the Borrower shall also pay to the Administrative Agent on behalf of the applicable Fronting Bank for such Fronting Bank’s own account, (A) a fronting fee in an amount equal to 0.125% per annum multiplied by the face amount of each outstanding Letter of Credit issued by such

 

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Fronting Bank, which fee shall be payable quarterly in arrears at the same time and in the same manner as the Letter of Credit Fee is payable and (B) at such other time or times as such charges are customarily made by the applicable Fronting Bank, such Fronting Bank’s customary issuance, amendment, negotiation or document examination and other administrative fees as in effect from time to time.

 

§3.7                         Existing Letters of Credit .  Those letters of credit issued for the account of the Borrower by the Fronting Banks under the 2013 Agreement prior to its being amended and restated by this Agreement and which are outstanding on the date hereof, which Letters of Credit are identified on Schedule 3.7 hereto (the “ Existing Letters of Credit ”), shall for all purposes be deemed to be Letters of Credit issued under this Agreement.

 

§3.8                         Letter of Credit Collateral Account .  The Borrower hereby agrees that it will, from the time a deposit is required pursuant to §3.1.3, §3.2(b) or §4.12 until the Obligations are satisfied and all Letters of Credit have expired or been terminated or cancelled or as otherwise set forth below, maintain a special collateral account (the “ Letter of Credit Collateral Account ”) at the Administrative Agent’s Head Office in the name of the Borrower but under the sole dominion and control, including the exclusive right of withdrawal, of the Administrative Agent, for the benefit of the Revolving Credit Lenders, and in which the Borrower shall have no interest other than as set forth in this §3.8.  Such Letter of Credit Collateral Account shall be funded to the extent required by §3.1.3, §3.2(b) or §4.12.  In addition to the foregoing, the Borrower hereby grants to the Administrative Agent, for the benefit of itself, the Fronting Banks and the Revolving Credit Lenders, a properly perfected security interest in and lien on the Letter of Credit Collateral Account, any cash or other funds, notes, certificates of deposit and other instruments that may hereafter be on deposit in the Letter of Credit Collateral Account, any certificates or instruments from time to time evidencing or representing the Letter of Credit Collateral Account, all interest, dividends and other property distributed in respect of or in exchange for the foregoing, and the proceeds thereof (the “ Letter of Credit Collateral ”), all to secure the payment and performance of the Obligations as set forth below.  The Borrower agrees that it will not (i) sell or otherwise dispose of any interest in the Letter of Credit Collateral or (ii) create or permit to exist any lien, security interest or other charge or encumbrance upon or with respect to any of the Letter of Credit Collateral, except for the security interest created by this §3.8.  The Letter of Credit Collateral shall not bear interest other than any interest earned on the investment of the Letter of Credit Collateral, which investments shall be made only in Permitted Investments (x) so long as no Default or Event of Default has occurred and is continuing, at the option and direction of the Borrower and (y) if a Default or Event of an Default has occurred and is continuing, at the option and sole, but reasonable, discretion of the Administrative Agent and, in each case, at the Borrower’s risk and expense.  Interest or profits, if any, on such investments shall accumulate in the Letter of Credit Collateral Account.  Moneys in the Letter of Credit Collateral Account shall be applied by the Administrative Agent to reimburse the Fronting Banks for any drawing under such Letters of Credit for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the Reimbursement Obligations of the Borrower at such time; provided that if all Letters of Credit have expired or have been terminated or cancelled, no Reimbursement Obligations are outstanding and the maturity of the Loans has been accelerated, moneys in the Letter of Credit Collateral Account may be applied to satisfy other Obligations of the Borrower under this Agreement.  If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default in

 

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accordance with §3.2(b), such amount and any interest thereon (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived or the Obligations have been paid in full and the Revolving Credit Commitments and all Letters of Credit have been terminated.  So long as no Default or Event of Default then exists, if Letter of Credit Collateral was provided in accordance with §3.1.3, such remaining Letter of Credit Collateral, with any interest earned thereon, will be returned to the Borrower (and shall be returned from time to time with respect to any applicable Letter of Credit) on the earlier of (a) the date that the applicable Letter of Credit or Letters of Credit expire in accordance with their terms, and (b) the date that the applicable Letter of Credit or Letters of Credit are terminated or cancelled.  So long as no Default or Event of Default then exists, the portion of Letter of Credit Collateral provided to cover the unfunded LC Exposure of a Defaulting Lender pursuant to §4.12 shall be released promptly following the elimination of the applicable unfunded LC Exposure (including by the termination of the Defaulting Lender status of the applicable Lender) or the Administrative Agent’s good faith determination that there exists excess Letter of Credit Collateral.

 

§4.                                CERTAIN GENERAL PROVISIONS .

 

§4.1                         Funds for Payments .

 

(a)                                  All payments of principal, interest, fees, and any other amounts due hereunder or under any of the other Loan Documents shall be made to the Administrative Agent, for the respective accounts of the Lenders or (as the case may be) the Administrative Agent, at the Administrative Agent’s Head Office, in each case in Dollars and in immediately available funds 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), §3.3, 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 or the Fronting Banks 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

 

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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 one or more Lenders advise the Administrative Agent that the LIBOR Rate for any requested Interest Period does not adequately and fairly reflect the cost to such Lender or 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 or Competitive Bid Request with respect to LIBOR Rate Loans shall be automatically withdrawn and shall be deemed a request for Alternate Base Rate Loans (in the case of Committed Loans) or Absolute Competitive Bid Loans (in the case of Competitive Bid Loans), (b) each Committed 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

 

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Loans shall forthwith be suspended and (b) such Lender’s applicable Commitment Percentage of Committed 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, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(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 letters of credit issued 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, any Letters of Credit, the Loans, such Lender’s Commitments, or any class of loans, letters of credit or commitments of which any of the Loans or such Lender’s Commitments form 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 Commitments or any Letter of Credit, or

 

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

 

(iii)                                to require such Lender or the Administrative Agent to make any payment or to forego any interest or Reimbursement Obligation or other sum payable hereunder,

 

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the amount of which payment or foregone interest or Reimbursement Obligation or other sum is calculated by reference to the gross amount of any sum receivable or deemed received by such Lender or the Administrative Agent from the Borrower hereunder,

 

then; 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 or a Fronting Bank 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 or Fronting Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s or Fronting Bank’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.  For purposes of this §4.5, the term “Lender” shall include the Fronting Bank.

 

§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 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 applicable Maturity Date, if sooner; provided that such Lender or the Administrative Agent may deliver such certificate after the applicable 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.  For purposes of this §4.6, the term “Lender” shall include the Fronting Bank.

 

§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,

 

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the Fronting Bank 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 Committed Loan Request or Competitive Bid 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.

 

§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

 

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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 Commitments, and/or participate in Letters of Credit, as provided herein, but none of such Lenders shall be under an obligation to do so; or (C) designate a Replacement Lender which is an Eligible Assignee and is reasonably satisfactory to the Administrative Agent other than when an Event of Default has occurred and is continuing and absolutely satisfactory to the Administrative Agent when an Event of Default has occurred and is continuing.  If any satisfactory Replacement Lender shall be obtained, and/or any of the non-Affected Lenders shall agree to acquire and assume all of the Affected Lender’s Loans and Commitments, and/or participate in Letters of Credit, then such Affected Lender shall assign, in accordance with §18, all of its Commitments, 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:

 

(a)                                  fees shall cease to accrue on the unused portion of the applicable Commitment of such Defaulting Lender pursuant to §2.4(f) and §2.4(g);

 

(b)                                  the Commitments and Revolving Credit Exposure and Term Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or Required Facility Lenders have 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 Reimbursement Obligation 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 of a Facility in which such Defaulting Lender is a Lender shall require the consent of such Defaulting Lender;

 

(c)                                   if any unfunded LC Exposure exists at the time such Revolving Credit Lender becomes a Defaulting Lender then:

 

(i)                                      so long as the conditions set forth in §11 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), all or any part of the unfunded LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with

 

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