FIRST POTOMAC REALTY TRUST GUARANTY
Exhibit 10.2
| To: | The Administrative Agent and each of the Lenders (collectively, the “Lenders”) which from time to time is a party to the Term Loan Agreement dated as of July 18, 2011 (as the same may be amended, modified or restated and in effect from time to time, the “Loan Agreement”) among First Potomac Realty Investment Limited Partnership, a Delaware limited partnership (“FPLP”) and the other Borrowers from time to time party thereto (FPLP, collectively with such Borrowers, hereinafter referred to as the “Borrower”), KeyBank National Association, as a Lender and as Administrative Agent for the Lenders (in such agent capacity, the “Agent”) and the other Lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined shall have the same meanings as set forth in the Loan Agreement. |
This GUARANTY, dated as of July 18, 2011, is made by First Potomac Realty Trust, a Maryland
real estate investment trust (the “Guarantor”) in favor of the Agent and Lenders.
WHEREAS, the Borrower and the Guarantor are members of a group of related companies, the
success of any one of which is dependent in part on the success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct benefits from the extension of
credit to the Borrower by the Lenders pursuant to the Loan Agreement (which benefits are hereby
acknowledged);
WHEREAS, the Lenders and the Agent are unwilling to enter into the Loan Agreement and to
extend any credit thereunder unless the Guarantor shall execute and deliver to the Agent, for the
benefit of the Lenders and the Agent, a guarantee substantially in the form hereof; and
WHEREAS, the Guarantor wishes to guarantee the Borrower’s obligations to the Lenders and the
Agent under or in respect of the Loan Agreement as provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor hereby agrees as follows:
1. Guaranty of Payment and Performance of Obligations. In consideration of the
Lenders’ extending credit or otherwise in their discretion giving time, financial or banking
facilities or accommodations to the Borrower, the Guarantor hereby absolutely and unconditionally
guarantees to the Agent and each Lender that the Borrower will duly and punctually pay or perform,
at the place specified therefor, or if no place is specified, at the Agent’s Head Office, (i) all
Obligations (as defined in the Loan Agreement); and (ii) without limitation of the foregoing,
all fees, costs and expenses incurred by the Agent or the Lenders in attempting to collect or
enforce any of the foregoing, accrued in each case to the date of payment hereunder (collectively,
the “Obligations” and individually an “Obligation”). This Guaranty is an absolute, unconditional
and continuing guaranty of the full and punctual payment and performance by the Borrower of the
Obligations and not of their collectibility only and is in no way conditioned upon any requirement
that any Lender or the Agent first attempt to collect any of the Obligations from the Borrower or
resort to any security or other means of obtaining payment of any of the Obligations which any
Lender or the Agent now has or may acquire after the date hereof or upon any other contingency
whatsoever. Upon the occurrence and during the continuance of any Event of Default under (or as
defined in) the Loan Agreement, the liabilities and obligations of the Guarantor hereunder shall,
at the option of the Agent or the Majority Lenders, become forthwith due and payable to the Agent
and to the Lender or Lenders owed the same without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Without limiting the foregoing, if any obligations are or
become due hereunder from a Guarantor at the time such Guarantor is or becomes the subject of a
proceeding under any Debtor Relief Law, such obligations shall be immediately due and payable
automatically and without any action on the part of the Agent or any of the Lenders. Payments by
the Guarantor hereunder may be required by any Lender or the Agent on any number of occasions.
2. Guarantor’s Further Agreements to Pay. The Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to each Lender and the Agent forthwith upon
demand, in funds immediately available to the Lender or the Agent, all costs and expenses
(including court costs and reasonable legal fees and expenses) of the type and/or nature described
in Section 17 of the Loan Agreement that are incurred or expended by the Agent or such Lender in
connection with this Guaranty and the enforcement hereof, together with interest on amounts
recoverable under this Guaranty from the time such amounts become due at a rate per annum equal to
two percent (2%) above the Base Rate plus the Applicable Base Rate Margin until such amounts shall
be paid in full (after as well as before judgment).
3. Payments. The Guarantor covenants and agrees that the Obligations will be paid
strictly in accordance with their respective terms regardless of any law, regulation or order now
or hereinafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent
or any Lender with respect thereto. Without limiting the generality of the foregoing, the
Guarantor’s obligations hereunder with respect to any Obligation shall not be discharged by a
payment in a currency other than the currency in which the Obligation is denominated (the
“Obligation Currency”) or at a place other than the place specified for the payment of the
Obligation, whether pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Obligation Currency and transferred to Cleveland, Ohio, U.S.A., under normal
banking procedures does not yield the amount of Obligation Currency due thereunder.
-2-
4. Taxes. All payments hereunder shall be made without any counterclaim or set-off,
free and clear of, and without reduction by reason of, any taxes, levies, imposts, charges and
withholdings, restrictions or conditions of any nature (“Taxes”), which are now or may hereafter be
imposed, levied or assessed by any country, political subdivision or taxing authority on
payments hereunder, all of which will be for the account of and paid by the Guarantor. If for any
reason, any such reduction is made or any Taxes are paid by the Agent or any Lender (except for
taxes on income or profits of such Agent or Lender), Guarantor will pay to the Agent or such Lender
such additional amounts as may be necessary to ensure that the Agent or such Lender receives the
same net amount which it would have received had no reduction been made or Taxes paid.
5. Consent to Jurisdiction. The Guarantor agrees that any suit for the enforcement
of this Guaranty or any of the other Loan Documents may be brought in the courts of the States of
New York or Ohio or any federal court in the States of New York or Ohio and consents to the
non-exclusive jurisdiction of such court and the service of process in any such suit being made
upon the Guarantor by mail at the address specified in Section 15 hereof. The Guarantor hereby
waives any objection that it may now or hereafter have to the venue of any such suit or any such
court or that such suit is brought in an inconvenient court. In addition to the courts of the
States of New York or Ohio or any federal court sitting in the States of New York or Ohio, the
Agent or any Lender may bring action(s) for enforcement on a nonexclusive basis where any
collateral exists and the Guarantor consents to the non-exclusive jurisdiction of such court and
the service of process in any such suit being made upon the Guarantor by mail at the address
specified in Section 15 hereof. In any such action or proceeding, the Guarantor hereby absolutely
and irrevocably waives personal service of any summons, complaint, declaration or other process and
hereby absolutely and irrevocably agrees that the service thereof may be made by certified,
registered or recorded first-class airmail directed to the Guarantor. Anything hereinbefore to the
contrary notwithstanding, the Agent or any Lender may xxx the Guarantor in the courts of any other
country, State of the United States or place where the Guarantor or any of the property or assets
of the Guarantor may be found or in any other appropriate jurisdictions.
6. Unlimited Liability of Guarantor. The liability of the Guarantor hereunder shall
be unlimited and, as to the Obligations of the Borrower, shall be joint and several with the
liability of each other party who has guaranteed or who will guarantee the Obligations of the
Borrower. The Agent and each Lender have and shall have the absolute right to enforce the
liability of the Guarantor hereunder without resort to any other right or remedy including any
right or remedy under any other guaranty, and the release or discharge of any guarantor of any
Obligations shall not affect the continuing liability of the Guarantor hereunder.
7. Effectiveness. The obligations of the Guarantor under this Guaranty shall
continue in full force and effect and shall remain in operation until all of the Obligations shall
have been paid in full in cash, and continue to be effective or be reinstated, as the case may be,
if at any time payment or other satisfaction of any of the Obligations is rescinded or must
otherwise be restored or returned upon the bankruptcy, insolvency, or reorganization of the
Borrower, or otherwise, as though such payment had not been made or other satisfaction occurred.
No invalidity, irregularity or unenforceability by reason of applicable Debtor Relief Laws, or any
law or order of any government or agency thereof purporting to reduce, amend or otherwise affect,
the Obligations, shall impair, affect, be a defense to or claim against the obligations of the
Guarantor under this Guaranty. Notwithstanding any provision to the contrary contained herein or
in any
other of the Loan Documents, the obligations guaranteed hereunder shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations subject to avoidance
under the Debtor Relief Laws.
-3-
8. Freedom of Lenders and Agent to Deal with Borrower and Other Parties. The Agent
and each Lender shall be at liberty, without giving notice to or obtaining the assent of the
Guarantor and without relieving the Guarantor of any liability hereunder, to deal with the Borrower
and with each other party who now is or after the date hereof becomes liable in any manner for any
of the Obligations, in such manner as the Agent or such Lender in its sole discretion deems fit,
and to this end, without limiting the right of the Agent or such Lender to so deal with such party,
the Guarantor gives to the Agent and each Lender full authority in its sole discretion to do any or
all of the following things: (a) extend credit, make loans and afford other financial
accommodations to the Borrower at such times, in such amounts and on such terms as the Agent or
such Lender may approve, (b) vary the terms and grant extensions of any present or future
indebtedness or obligation of the Borrower or of any other party to the Agent or such Lender, (c)
grant time, waivers and other indulgences in respect thereto, (d) vary, exchange, release or
discharge, wholly or partially, or delay in or abstain from perfecting and enforcing any security
or guaranty or other means of obtaining payment of any of the Obligations which the Lender now has
or may acquire after the date hereof, (e) accept partial payments from the Borrower or any such
other party, (f) release or discharge, wholly or partially, any endorser or guarantor, and (g)
compromise or make any settlement or other arrangement with the Borrower or any such other party.
9. Unenforceability of Obligations Against Borrower; Invalidity of Security or Other
Guaranties. If for any reason any Borrower has no legal existence or is under no legal
obligation to discharge any of the Obligations undertaken or purported to be undertaken by it or on
its behalf, or if any of the moneys included in the Obligations have become irrecoverable from the
Borrower by operation of law or for any other reason, this Guaranty shall nevertheless be binding
on the Guarantor to the same extent as if the Guarantor at all times had been the principal debtor
on all such Obligations. This Guaranty shall be in addition to any other guaranty or other security
for the Obligations, and it shall not be prejudiced or rendered unenforceable by the invalidity of
any such other guaranty or security.
10. Representation and Warranties. The Guarantor hereby makes, for itself and on
behalf of its Subsidiaries, the representations and warranties contained in Section 7 of the Loan
Agreement that relate to the Guarantor and/or its Subsidiaries (each, a “Representation and
Warranty,” and collectively, the “Representations and Warranties”) as if each such
Representation and Warranty were set forth fully herein, and such Representations and Warranties
are hereby incorporated by reference and shall survive until payment in full of all of the
Obligations.
-4-
11. Covenants. The Guarantor hereby covenants that it will, and will cause its
Subsidiaries to, comply with each of the covenants contained in Sections 8, 9 and 10 of the Loan
Agreement that relate to the Guarantor and its Subsidiaries (the “Covenants”) as if each such
Covenant were fully set forth herein, and such Covenants are incorporated by reference. In
addition, the Guarantor agrees that it will at all times be the sole general partner of FPLP and
that it will not transfer, sell or encumber its general partnership interest in FPLP.
12. Representations True; Covenant Compliance; No Event of Default. Each of the
Representations and Warranties made by the Guarantor for itself and on behalf of its Subsidiaries
shall be true in all material respects as of the date as of which it was made and shall also be
true in all material respects at and as of the time of the making of each Loan under the Loan
Agreement with the same effect as if made at and as of that time (except to the extent that such
Representations and Warranties relate expressly to an earlier date).
13. Waivers by Guarantor. The Guarantor waives: notice of acceptance hereof, notice
of any action taken or omitted by the Agent or any Lender in reliance hereon, and any requirement
that the Agent or any Lender be diligent or prompt in making demands hereunder, giving notice of
any default by the Borrower or asserting any other rights of the Agent or any Lender hereunder.
The Guarantor also irrevocably waives, to the fullest extent permitted by law, all defenses that at
any time may be available in respect of the Guarantor’s obligations hereunder by virtue of any
statute of limitations, valuation, stay, moratorium law or other similar law now or hereafter in
effect.
14. Waiver of Subrogation Rights. Notwithstanding any other provision to the
contrary contained herein or provided by applicable law and until such time as all Obligations have
been indefeasibly paid in full in cash to the Lenders, the Guarantor hereby irrevocably waives any
and all rights it may have at any time (whether arising directly or indirectly, by operation of law
or by contract) to assert any claim against the Borrower on account of payments made under this
Guaranty or otherwise, including, without limitation, any and all rights of or claim for
subrogation, contribution, reimbursement, exoneration and indemnity, and further waives any benefit
of and any right to participate in any collateral which may be held by the Agent or any Lender or
any affiliate of the Agent or any Lender. Without limitation of the foregoing, in proceedings
under applicable bankruptcy laws or insolvency proceedings of any nature, the Guarantor will not
prove in competition with the Agent or any Lender in respect of any payment hereunder or be
entitled to have the benefit of any counterclaim or proof of claim or dividend or payment by or on
behalf of the Borrower or the benefit of any other security for any Obligation which, now or
hereafter, the Agent or any Lender may hold or in which it may have any share. In addition, the
Guarantor will not claim any set-off or counterclaim against the Borrower in respect of any
liability it may have to the Borrower. The payment of any amounts due with respect to any
indebtedness of the Borrower now or hereafter held by the Guarantor which arises as a result of the
Guarantor’s payment of any sum recoverable hereunder is hereby subordinated to the prior payment in
full of the Obligations. The Guarantor agrees that the Guarantor will not demand, xxx for or
otherwise attempt to collect any such indebtedness of the Borrower to the Guarantor until the
Obligations shall have been paid in full. If, notwithstanding the foregoing sentence, the
Guarantor shall collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantor as trustee for the Agent and
the Lenders and be paid over to the Agent on account of the Obligations without affecting in any
manner the liability of the Guarantor under the other provisions of this Guaranty.
-5-
15. Demands and Notices. Any demand on or notice to the Guarantor made or required
to be given pursuant to this Guaranty shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by overnight courier,
or sent by telegraph, telecopy, telefax or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Guarantor, at First Potomac Realty Trust, 0000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (facsimile: (000) 000-0000), Attention: Xxxxx Xxxx, Chief
Financial Officer, with a copy to Xxxxxx Xxxxxx, Esq., Xxxxx Lovells US LLP, Columbia Square, 000
Xxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000 (facsimile: (000) 000-0000), or at such other address
for notice as the Guarantor shall last have furnished in writing to the person giving the notice;
and
(b) if to the Agent, to Xxxx Xxxxx, Senior Banker, KeyBank National Association, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000 (facsimile: (000) 000-0000), or such other address for notice as the
Agent shall have last furnished in writing to the person giving the notice, with a copy to Xxxxxx
X. XxxXxxxxx, Esq., Goulston & Storrs, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000
(facsimile: (000)-000-0000), or at such other address for notice as the Agent shall last have
furnished in writing to the person giving the notice; and
(c) if to any Lender, at such Lender’s address set forth on Schedule 2 to the Loan Agreement,
or such other address for notice as such Lender shall have last furnished in writing to the Person
giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to have become
effective (i) if delivered by hand, overnight courier or facsimile to the party to which it is
directed, at the time of the receipt thereof by such party or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on the third Business
Day following the mailing thereof.
16. Amendments, Waivers, Etc. No provision of this Guaranty can be changed, waived,
discharged or terminated except by an instrument in writing signed by the Agent and the Guarantor
expressly referring to the provision of this Guaranty to which such instrument relates; and no such
waiver shall extend to, affect or impair any right with respect to any Obligation which is not
expressly dealt with therein. No course of dealing or delay or omission on the part of the Agent
or the Lenders or any of them in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto.
-6-
17. Set-off. Regardless of the adequacy of any collateral or other means of obtaining
repayment of the Obligations, each Lender and the Agent may, subject to satisfaction of the
conditions to set-off set forth in Section 15.2 of the Loan Agreement, at any time and without
notice to the Guarantor set off the whole or any portion or portions of any or all such deposits
and other sums credited by or due from such Lender or the Agent to the Guarantor or subject to
withdrawal by the Guarantor against amounts payable under this Guaranty, whether or not any other
person or persons could also withdraw money therefrom. Any deposits or other sums which may at any
time be credited to the Guarantor by or due to it from any Lender may at any time be applied to or
set off by such Lender against the Guarantor’s obligations hereunder, in each case in accordance
with Section 15.2 of the Loan Agreement. The Guarantor irrevocably invites each financing
institution which may consider becoming a Lender to rely on the provisions contained in this
Section 17 as making the Lender a creditor of the Guarantor and agrees that its becoming a Lender
shall constitute an acceptance of the offer hereby made.
18. Agent; Application of Funds. This Guaranty has been delivered to the Agent and
the Agent has been authorized to enforce this Guaranty on behalf of each of the Lenders pursuant to
the Loan Documents. All payments by the undersigned pursuant to this Guaranty shall be made to the
Agent for the ratable benefit of the Lenders and the Agent and, after the payment of all expenses
as provided in this Guaranty, shall be applied to the payment of the Obligations until the same are
paid in full.
19. Further Assurances. The Guarantor at its sole cost and expense agrees to do all
such things and execute, acknowledge and deliver all such documents and instruments as the Agent
from time to time may reasonably request in order to give full effect to this Guaranty and to
perfect and preserve the rights and powers of the Agent and the Lenders hereunder.
20. Miscellaneous Provisions. This Guaranty is intended to take effect as a sealed
instrument to be governed by and construed in accordance with the laws of the State of New York and
shall inure to the benefit of the Agent, each Lender and its respective successors in title and
assigns, and shall be binding on the Guarantor and the Guarantor’s successors in title, assigns and
legal representatives. The rights and remedies herein provided are cumulative and not exclusive of
any remedies provided by law or any other agreement. The invalidity or unenforceability of any one
or more sections of this Guaranty shall not affect the validity or enforceability of its remaining
provisions. Captions are for ease of reference only and shall not affect the meaning of the
relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally
applicable to the singular and plural forms of the terms defined.
-7-
21. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY JURISDICTION AND IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS
GUARANTY, THE OBLIGATIONS, THE LOAN DOCUMENTS, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT HERETO OR THERETO OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING, AMONG THE GUARANTOR,
THE BORROWER, THE AGENT AND/OR THE LENDERS. THIS WAIVER OF JURY TRIAL SHALL BE EFFECTIVE FOR EACH
AND EVERY DOCUMENT EXECUTED BY THE GUARANTOR, THE AGENT OR THE LENDERS AND DELIVERED TO THE AGENT
OR THE LENDERS, AS THE CASE MAY BE, WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN
SUCH A WAIVER OF JURY TRIAL. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE GUARANTOR HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING
SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THE GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES
THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THE LOAN AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS
CONTAINED HEREIN. THE GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.
(Signatures on following page)
-8-
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date first written
above.
| FIRST POTOMAC REALTY TRUST | ||||||
Witness: |
||||||
| /s/ Xxxxx X. Xxxx | ||||||
/s/ Xxxx X. Xxxxxx
|
By: | Xxxxx X. Xxxx, Chief Financial Officer and Executive Vice President | ||||
Executive Vice President |
||||||
Signature Page to Guaranty
