ARTICLE I AMENDMENTS TO LOAN AGREEMENT
Exhibit 10.1
FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Dated as of: September 30, 2011
KeyBank National Association,
as Administrative Agent
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
as Administrative Agent
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Re: Amendment No. 5 to Secured Term Loan Agreement
Ladies and Gentlemen:
We refer to the Secured Term Loan Agreement dated as of August 7, 2007 (the “Original Loan
Agreement”), by and among FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, a Delaware
limited partnership (the “Borrower”), KEYBANK NATIONAL ASSOCIATION and the other lending
institutions which are parties thereto (individually, a “Lender” and collectively, the
“Lenders”), and KEYBANK NATIONAL ASSOCIATION, as administrative agent for itself and each
other Lender (the “Agent”), as amended by that certain Amendment No. 1 dated as of
September 30, 2007, that certain Amendment No. 2 dated as of November 30, 2007, that certain
Amendment No. 3 dated as of December 29, 2009, and that certain Amendment No. 4 dated as of October
27, 2010 (the Original Loan Agreement, as so amended, is referred to hereinafter as the “Loan
Agreement”). Capitalized terms used in this letter of agreement (this “Amendment”)
which are not defined herein, but which are defined in the Loan Agreement, shall have the same
meanings herein as therein, as the context so requires.
We have requested that the Lenders amend the Loan Agreement to conform certain of its
provisions, including, without limitation, Articles 8, 9 and 10 of the Loan Agreement, with
analogous provisions of (a) the Third Amended and Restated Revolving Credit Agreement dated as of
June 16, 2011, among the Borrower and certain of its Subsidiaries, KeyBank National Association, as
a lender and as administrative agent, and certain other lenders (the “Unsecured Revolver
Agreement”), and (b) the Term Loan Agreement dated as of July 18, 2011, among the Borrower,
KeyBank National Association, as a lender and as administrative agent, and certain other lenders
(the “2011 Term Loan Agreement”), and you have advised us that the Lenders are prepared and
would be pleased to make the amendments so requested by us, subject to the terms and conditions of
this Amendment.
Accordingly, in consideration of these premises, the promises, mutual covenants and agreements
contained in this Amendment, and fully intending to be legally bound by this Amendment, the parties
hereto hereby agree as follows:
ARTICLE I
AMENDMENTS TO LOAN AGREEMENT
Subject to the fulfillment of the conditions contained in Article II of this Amendment, the
Loan Agreement is amended in each of the following respects:
(a) The Loan Agreement is hereby amended by the changes shown in the marked copy of the Loan
Agreement attached hereto as Exhibit A and incorporated herein by reference. The Loan
Agreement, as amended by the amendments made pursuant to this Amendment (as so amended, the
“Amended Loan Agreement”), shall read in its entirety as set forth in Exhibit B
attached hereto.
(b) The effective date of this Amendment is September 30, 2011 (the “Closing Date”).
ARTICLE II
CONDITIONS PRECEDENT TO AMENDMENT
The Lenders’ agreement herein to amend the Loan Agreement is subject to the fulfillment to the
satisfaction of the Lenders of the following conditions precedent on or prior to the date hereof,
unless the Agent otherwise agrees in writing:
(a) The Borrower shall have executed and delivered to the Agent a counterpart of this
Amendment, which shall be in form and substance satisfactory to the Lenders;
(b) The Unsecured Revolver Guarantors (as defined in the Amended Loan Agreement) shall have
executed and delivered to the Agent the Additional Subsidiary Guaranty (as defined in the Amended
Loan Agreement);
(c) The Trust and the Subsidiary Guarantors shall have acknowledged and consented to the
provisions of this Amendment;
(d) The Borrower shall have paid to the Administrative Agent, for the accounts of the Lenders
or for its own account, as applicable, the fees and expenses payable as of the Closing Date in
accordance with this Amendment, the Loan Agreement or any separate fee letter entered into by the
Borrower and the Trust and the Administrative Agent; and
(f) The Agent and the Majority Lenders shall have executed this Amendment.
-2-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower and the Guarantor hereby represent and warrant to you as follows:
(a) Representations and Warranties. Each of the representations and warranties made
by the Borrower and the Guarantor, as applicable, to the Agent and the Lenders in the Loan
Agreement and other Loan Documents, as applicable, was true, correct and complete when made and,
after giving effect to this Amendment, is true, correct and complete on and as of the date hereof
with the same full force and effect as if each of such representations and warranties had been made
by the Borrower and the Guarantor on the date hereof and in this Amendment, except to the extent
that such representations and warranties relate solely to a prior date.
(b) No Defaults or Events of Default. No Default or Event of Default exists on the
date hereof, after giving effect to this Amendment.
(c) Binding Effect of Documents. This Amendment has been duly authorized, executed
and delivered to you by the Borrower and the Guarantor and is in full force and effect as of the
date hereof, and the agreements and obligations of the Borrower and the Guarantor contained herein
and therein constitute the legal, valid and binding obligations of the Borrower and Guarantor
enforceable against the Borrower and Guarantor in accordance with their respective terms, subject
only to applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors’ rights.
ARTICLE V
MISCELLANEOUS
This Amendment may be executed in any number of counterparts, each of which when executed and
delivered shall be deemed an original, but all of which together shall constitute one instrument.
In making proof of this Amendment, it shall not be necessary to produce or account for more than
one counterpart thereof signed by each of the parties hereto. Except to the extent specifically
amended and supplemented hereby, all of the terms, conditions and the provisions of the Loan
Agreement and each of the other Loan Documents shall otherwise remain unmodified, and the Loan
Agreement and each of the other Loan Documents, as amended and supplemented by this Amendment, are
confirmed as being in full force and effect, and the Borrower and the Guarantor hereby ratify and
confirm all of its agreements and obligations contained therein, as applicable.
-3-
WITHOUT LIMITING SECTION 23 OF THE LOAN AGREEMENT THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER,
FOR ITSELF AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY COURT IN THE STATE OF NEW
YORK AND OF ANY FEDERAL COURT LOCATED IN NEW YORK AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF
SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER, A SUBSIDIARY GUARANTOR, AN UNSECURED REVOLVER SUBSIDIARY GUARANTOR, THE TRUST OR
THEIR SUBSIDIARIES BY MAIL AT THE ADDRESS SPECIFIED IN §21 OF THE LOAN AGREEMENT. THE BORROWER,
FOR ITSELF AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, HEREBY WAIVES ANY OBJECTION THAT ANY OF THEM
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.
[Remainder of Page Intentionally Left Blank]
-4-
If you are in agreement with the foregoing, please sign the form of acceptance on the enclosed
counterpart of this Amendment, whereupon this Amendment, as so accepted by you, shall become a
binding agreement between you and the undersigned.
| Very truly yours, FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP |
||||
| By: | First Potomac Realty Trust, | |||
| its sole general partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Xxxxx X. Xxxx, Chief Financial Officer and | ||||
| Executive Vice President | ||||
(Signatures continued on next page)
Signature Page to Amendment No. 5 to Secured Term Loan Agreement
[Consent to Amendment No. 5 to Secured Term Loan Agreement]
CONSENT OF TRUST GUARANTOR
FIRST POTOMAC REALTY TRUST (the “Guarantor”) has guaranteed the Obligations (as
defined in the Guaranty by the Guarantor in favor of the Lenders and the Agent, dated as of August
7, 2007 (as modified, amended, restated or reaffirmed from time to time, the “Guaranty”).
By executing this consent, the Guarantor hereby absolutely and unconditionally reaffirms to the
Agent and the Lenders that the Guarantor’s Guaranty remains in full force and effect. In addition,
the Guarantor hereby acknowledges and agrees to the terms and conditions of this Amendment and the
Loan Agreement as amended hereby (including, without limitation, the making of the representations
and warranties and the performance of the covenants applicable to it herein or therein).
| GUARANTOR: FIRST POTOMAC REALTY TRUST |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Xxxxx Xxxx, Executive Vice President and Chief Financial Officer | ||||
[Consent to Amendment No. 5 to Secured Term Loan Agreement]
CONSENT OF SUBSIDIARY GUARANTORS
Each of the Subsidiary Guarantors listed on Annex 1 attached hereto (each a “Subsidiary
Guarantor” and collectively the “Subsidiary Guarantors”) has guaranteed the Obligations
(as defined in the Subsidiary Guaranty by each Subsidiary Guarantor in favor of the Lenders and the
Agent, dated as of August 7, 2007, November 30, 2009 or December 29, 2009, as applicable
(collectively and as modified, amended, restated or reaffirmed from time to time, together with all
joinders thereto, the “Subsidiary Guaranty”)). By executing this consent, each of the
Subsidiary Guarantors hereby absolutely and unconditionally reaffirms to the Agent and the Lenders
that the Subsidiary Guarantor’s Subsidiary Guaranty remains in full force and effect. In addition,
each of the Subsidiary Guarantors hereby acknowledges and agrees to the terms and conditions of
this Amendment and the Loan Agreement as amended hereby (including, without limitation, the making
of the representations and warranties and the performance of the covenants applicable to it herein
or therein).
| EACH OF THE SUBSIDIARY GUARANTORS LISTED ON ANNEX I HERETO |
||||
| By: | First Potomac Realty Investment
Limited Partnership, a Delaware limited partnership, its sole member, its sole general partner or the direct or indirect holder of all ownership interests in its sole member or its sole general partner |
|||
| By: | First Potomac Realty Trust, a Maryland real estate investment trust, its sole general partner |
|||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Chief Financial Officer and Executive Vice President |
|||
ACCEPTED AND AGREED:
| KEYBANK NATIONAL ASSOCIATION, as a Lender and as Administrative Agent |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Assistant Vice President | |||
(End of signatures)
Signature Page to Amendment No. 5 to Secured Term Loan Agreement
EXHIBIT A
Marked Copy of Loan Agreement
[Attached]
Exhibit A to Amendment No. 5 to Secured Term Loan Agreement
among
FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP
and
KEYBANK NATIONAL ASSOCIATION,
and
OTHER LENDERS WHICH MAY BECOME PARTIES TO THIS AGREEMENT
and
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
AS ADMINISTRATIVE AGENT
with
KEYBANC CAPITAL MARKETS INC.,
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
Dated as of August 7, 2007
TABLE OF CONTENTS
§1. DEFINITIONS AND RULES OF INTERPRETATION |
1 | |||
§1.1. Definitions |
1 | |||
§1.2. Rules of Interpretation |
||||
§1.3. GAAP |
32 | |||
§2. THE TERM LOAN |
||||
§2.1. Commitment to Lend |
||||
§2.2. The Term Notes |
||||
§2.3. Interest on the Term Loan |
||||
§2.4. Request for the Term Loan |
||||
§2.5. Conversion Options |
||||
§2.6. [Reserved] |
||||
§2.7. [Reserved] |
||||
§2.8. Increase in Total Commitment |
||||
§2.9. |
||||
§2.10. Reserved |
36 | |||
§2.11. Certain Permitted Amendments |
36 | |||
§2.12. Reverse Dutch Auction Xxxxxxxxxxx |
00 | |||
§0. REPAYMENT OF THE TERM LOAN |
||||
§3.1. Maturity |
||||
§3.2. Optional Repayments of the Term Loan |
||||
-x-
§0. CERTAIN GENERAL PROVISIONS |
||||
§4.1. Funds for Payments |
||||
§4.2. Computations |
||||
§4.3. Inability to Determine Libor Rate |
||||
§4.4. Illegality |
||||
§4.5. Additional Costs, Etc. |
||||
§4.6. Capital Adequacy |
||||
§4.7. Certificate; Limitations |
||||
§4.8. Indemnity |
||||
§4.9. Interest |
||||
§4.10. Right to Replace Lender |
49 | |||
§4.11. Defaulting Lenders |
49 | |||
§5. COLLATERAL |
||||
§5.1. Security Interests |
||||
§5.2. Pledged Equity Properties; Pledged Distributions Properties |
||||
§5.3. Mortgage Collateral Properties |
51 | |||
§6. RECOURSE OBLIGATIONS; JOINT AND SEVERAL LIABILITY |
||||
§7. REPRESENTATIONS AND WARRANTIES |
||||
§7.1. Authority, Etc. |
||||
§7.2. Governmental Approvals |
||||
§7.3. Title to Properties; Leases |
||||
§7.4. Financial Statements |
||||
§7.5. No Material Changes, Etc. |
||||
§7.6. Franchises, Patents, Copyrights, Etc. |
||||
-ii-
§7.7. Litigation |
||||
§7.8. No Materially Adverse Contracts, Etc. |
||||
§7.9. Compliance With Other Instruments, Laws, Etc. |
||||
§7.10. Tax Status |
||||
§7.11 No Event of Default |
||||
§7.12. Investment Company Acts |
||||
§7.13. Name; Jurisdiction of Organization; Absence of UCC Financing Statements, Etc. |
||||
§7.14. Absence of Liens |
||||
§7.15. Certain Transactions |
||||
§7.16. Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans |
||||
§7.17. Regulations U and X |
||||
§7.18. Environmental Compliance |
||||
§7.19. Subsidiaries |
||||
§7.20. |
||||
§7.21. REIT Status |
||||
§7.22. Anti-Terrorism Regulations |
||||
§8. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE TRUST |
||||
§8.1. Punctual Payment |
||||
§8.2. Maintenance of Office; Jurisdiction of Organization, Etc. |
||||
§8.3. Records and Accounts |
||||
§8.4. Financial Statements, Certificates and Information |
||||
§8.5. Notices |
||||
§8.6. Existence of Borrower; Maintenance of Properties |
||||
-iii-
§8.7. Existence of the Trust; Maintenance of REIT Status of the Trust; Maintenance of Properties |
||||
§8.8. Insurance |
||||
§8.9. Taxes |
||||
§8.10. Inspection of Properties and Books ; Treatment of Certain Information; Confidentiality |
||||
§8.11. Compliance with Laws, Contracts, Licenses, and Permits |
||||
§8.12. Use of Proceeds |
||||
§8.13. Additional Borrower; Solvency of Borrower; Removal of Borrower; Addition of Real Estate Asset to Unencumbered Pool |
||||
§8.14. Further Assurances |
||||
§8.15. Interest Rate Protection |
||||
§8.16. Environmental Indemnification |
||||
§8.17. Response Actions |
||||
§8.18. Environmental Assessments |
||||
§8.19. Employee Benefit Plans |
||||
§8.20. No Amendments to Certain Documents |
||||
§8.21. Additional Guaranties |
78 | |||
§9.
CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE TRUST |
||||
§9.1. Restrictions on Indebtedness |
||||
§9.2. Restrictions on Liens, Etc. |
||||
§9.3. Restrictions on Investments |
||||
§9.4. Merger, Consolidation and Disposition of Assets; |
||||
§9.5. Compliance with Environmental Laws |
||||
§9.6. Distributions |
||||
-iv-
§9.7. Government Regulation |
||||
§10. FINANCIAL COVENANTS; COVENANTS REGARDING ELIGIBLE BORROWING BASE PROPERTIES |
||||
§10.1. Consolidated Total Leverage Ratio |
||||
§10.2. |
||||
§10.3. Fixed Charge Coverage Ratio |
||||
§10.4. Net Worth |
||||
§10.5. Borrowing Base Pool Leverage |
||||
§10.6. Borrowing Base Pool Debt Service Coverage Ratio |
||||
§10.7. |
||||
§11. RESERVED |
||||
§12. CONDITIONS TO THE FIRST ADVANCE |
||||
§12.1. Loan Documents |
||||
§12.2. Certified Copies of Organization Documents |
||||
§12.3. By-laws; Resolutions |
||||
§12.4. Incumbency Certificate: Authorized Signers |
||||
§12.5. Opinion of Counsel Concerning Organization and Loan Documents |
||||
§12.6. Guarantees |
||||
§00.0. |
||||
§ |
||||
§ |
||||
§ |
||||
-v-
§ |
||||
§13. [RESERVED] |
||||
§14. EVENTS OF DEFAULT; ACCELERATION; ETC. |
||||
§14.1. Events of Default and Acceleration |
||||
§14.2. Default under Property Level Debt |
||||
§14.3. Remedies |
||||
§14.4. Application of Funds |
97 | |||
§15. |
||||
§15.2 Set-Off and Debit |
||||
§15.3 |
||||
§15.4 Additional Rights |
||||
§16. THE AGENT |
||||
§16.1. Authorization |
||||
§16.2. Employees and Agents |
||||
§16.3. No Liability |
||||
§16.4. No Representations |
||||
§16.5. Payments |
||||
§16.6. Holders of Notes |
||||
§16.7. Indemnity |
||||
§16.8. Agent as Lender |
||||
§16.9. Notification of Defaults and Events of Default |
||||
§16.10. Duties in Case of Enforcement |
||||
§16.11. Successor Agent |
||||
-xx-
§00.00. Notices |
||||
§00.
EXPENSES |
||||
§18. RESERVED |
000 | |||
§00. SURVIVAL OF COVENANTS, ETC. |
||||
§20. ASSIGNMENT; PARTICIPATIONS; ETC. |
||||
§20.1. Conditions to Assignment by Lenders |
||||
§20.2. Certain Representations and Warranties; Limitations; Covenants |
||||
§20.3. Register |
||||
§20.4. New Notes |
||||
§20.5. Participations |
||||
§20.6. Pledge by Lender |
||||
§20.7. No Assignment by Borrower |
||||
§20.8. Disclosure |
||||
§20.9. Syndication |
||||
§21. NOTICES, ETC. |
||||
§22. FPLP AS AGENT FOR THE SUBSIDIARY GUARANTORS |
||||
§23. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE |
||||
-vii-
§24. HEADINGS |
||||
§25. COUNTERPARTS |
||||
§00. ENTIRE AGREEMENT, ETC. |
||||
§27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS |
||||
§28. CONSENTS, AMENDMENTS, WAIVERS, ETC. |
||||
§00. SEVERABILITY |
||||
§00. INTEREST RATE LIMITATION |
||||
§31. USA PATRIOT ACT |
||||
-viii-
Exhibits to Secured Term Loan Agreement
Exhibit A — Form of Term Note
Exhibit B — Form of Completed Loan Request
Exhibit B-1 — Form of Conversion Request
Exhibit C — Forms of Compliance Certificates
Exhibit D — Form of Assignment and Assumption
Exhibit E — Form of Joinder Agreement
Exhibit F — Form of Additional Subsidiary Guaranty Joinder Agreement
-ix-
Schedules to Secured Term Loan Agreement
Schedule 1
|
Subsidiary Guarantors | |
Schedule 1A
|
Borrowing Base Pool | |
Schedule 1B
|
Unsecured Revolver Subsidiary Guarantors | |
Schedule 2.12
|
Reverse Dutch Auction Repurchases | |
Schedule 2
|
Lender’s Commitments | |
Schedule 7.1(b)
|
Capitalization | |
Schedule 7.3(c)
|
Partially-Owned Entities | |
Schedule 7.7
|
Litigation | |
Schedule 7.13
|
Legal Name; Jurisdiction | |
Schedule 7.15
|
Affiliate Transactions | |
Schedule 7.16
|
Employee Benefit Plans | |
Schedule 7.19
|
Subsidiaries | |
Schedule 8.19
|
Employee Benefit Plans | |
Schedule 9.1(g)
|
Contingent Liabilities |
-x-
SECURED TERM LOAN AGREEMENT
This SECURED TERM LOAN AGREEMENT (this “Agreement”) is made as of the 7th
day of August, 2007, by and among FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, a Delaware
limited partnership (the “Borrower” or “FPLP”), having its principal place of business at 0000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000; KEYBANK NATIONAL ASSOCIATION
(“KeyBank”), having a principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 and
the other lending institutions which are as of the date hereof or may become parties hereto
pursuant to §20 (individually, a “Lender” and collectively, the “Lenders”); and KEYBANK, as
administrative agent for itself and each other Lender (the “Agent”); and KEYBANC CAPITAL
MARKETS INC., as Sole Lead Arranger and Sole Book Manager.
RECITALS
A. The Borrower is primarily engaged in the business of owning, acquiring, developing,
renovating and operating office, industrial and so-called flex properties in the Mid-Atlantic
region of the United States.
B. First Potomac Realty Trust, a Maryland real estate investment trust (the “Trust”),
is the sole general partner of FPLP, holds in excess of 80% of the partnership interests in FPLP as
of the date of this Agreement, and is qualified to elect REIT status for income tax purposes and
has agreed to guaranty the obligations of the Borrower hereunder and under the other Loan Documents
(as defined below).
C. The Borrower and the Trust have requested, and the Lenders have agreed to establish,
a senior secured term loan in favor of the Borrower pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
parties hereto agree to the terms and conditions of this Agreement as set forth below:
§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:
AAP Qualification. See §7.6.
-1-
Account Agreement. Collectively, (i) the Account Pledge, Assignment and Control
Agreement in favor of the Agent on behalf of the Lenders with respect to the pledged deposit
account into which Distributions pledged pursuant to a Distributions Pledge Agreement or an Equity
Pledge Agreement will be deposited and (ii) each of the other documents, agreements and
instruments, including control agreements, entered into by the Borrower or a Subsidiary Guarantor
and/or any financial institution in favor of the Agent on behalf of the Lenders with respect to
Distributions.
Accountants. In each case, independent certified public accountants reasonably
acceptable to the Majority Lenders. The Lenders hereby acknowledge that the Accountants may
include KPMG LLP and any other so-called “big-four” accounting firm.
Accounts Payable. Accounts payable of the Borrower, the Trust and their respective
Subsidiaries, as determined in accordance with GAAP.
Additional Subsidiary Guaranty. The guaranty made by the Unsecured Revolver Subsidiary
Guarantors, on a joint and several basis, dated as of the Amendment No. 5 Effective Date, in favor
of the Agent and the Lenders, together with any joinder agreements thereto provided by any
Unsecured Revolver Subsidiary Guarantor after the Amendment No. 5 Effective Date, pursuant to which
Unsecured Revolver Subsidiary Guarantors guarantee to the Agent and the Lenders the unconditional
payment and performance of the Obligations, as the same may be modified, amended, restated or
reaffirmed from time to time.
Additional Subsidiary Guaranty Joinder Agreement. The one or more Additional Subsidiary
Guaranty Joinder Agreements among the Agent (on behalf of itself and the Lenders) and any one or
more Unsecured Revolver Subsidiary Guarantors which are to join the Additional Subsidiary Guaranty
at any time after the Amendment No. 5 Effective Date, the form of which is attached hereto as
Exhibit F.
Adjusted EBITDA. As at any date of determination, an amount equal to (i) Consolidated
EBITDA for the applicable period; minus (ii) the Capital Reserve on such date.
Adjusted Net Operating Income. As at any date of determination, an amount equal to
(i) the Net Operating Income of the Borrowing Base Pool for the applicable period; minus
(ii) the Borrowing Base Pool Capital Reserve on such date.
Affected Lender. See §4.10.
Affiliate. With reference to any Person, (i) any director, officer, general partner,
trustee or managing member (or the equivalent thereof) of that Person, (ii) any other Person
controlling, controlled by or under direct or indirect common control of that Person, (iii) any
other Person directly or indirectly holding 5% or more of any class of the capital stock or other
equity interestsEquity Interests (including options, warrants,
convertible securities and similar rights) of that Person, (iv) any other Person 5% or more of any
class of whose capital stock or other equity interestsEquity
Interests (including options, warrants, convertible securities and similar rights) is held
directly or indirectly by that Person, and (v) any Person directly or indirectly controlling that
Person, whether through a management agreement, voting agreement, other contract or otherwise.
In no event shall the Agent or any Lender be deemed to be an Affiliate of the Borrower.
-2-
Agent. See the preamble to this Agreement. The Agent shall include any successor
agent, as permitted by §16.
Agent Auction Fee. A fee payable to the Agent in connection with each Auction, which fee
shall be a reasonable and customary amount to be mutually agreed upon by the Agent and the
Borrower.
Agent’s Head Office. The Agent’s office located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000, or at such other location as the Agent may designate from time to time, or the office of any
successor agent permitted under §16.
Agreement. This Secured Term Loan Agreement, including the Schedules and
Exhibits hereto, as the same may be from time to time amended, restated, modified and/or
supplemented and in effect.
Agreement of Limited Partnership of the Borrower. The Amended and Restated Agreement
of Limited Partnership of FPLP, dated September 15, 2003, as amended, among the Trust and the
limited partners named therein, as amended through the date hereof and as the same may be further
amended from time to time as permitted by §8.20.
Amendment No. 3. The Amendment No. 3 to this Agreement dated as of December 29, 2009 by
and among the Borrower, the Agent and the Lenders.
Amendment No. 3 Effective Date. December 29, 2009.
Amendment No. 5. The Amendment No. 5 to this Agreement dated as of September 30, 2011 by
and among the Borrower, the Agent and the Lenders.
Amendment No. 5 Effective Date. September 30, 2011.
Applicable Base Rate Margin. From the Amendment No. 3 Effective Date through
December 31, 2010, the Applicable Base Rate Margin shall be one hundred twenty five (125) basis
points. From January 1, 2011 through December 31, 2011, the Applicable Base Rate Margin shall be
two hundred twenty five (225) basis points. From January 1, 2012 through December 31, 2012, the
Applicable Base Rate Margin shall be three hundred twenty five (325) basis points. From and after
January 1, 2013, the Applicable Base Rate Margin shall be four hundred twenty five (425) basis
points.
-3-
Applicable Libor Margin. From the Amendment No. 3 Effective Date through
December 31, 2010, the Applicable Libor Margin shall be two hundred fifty (250) basis points. From
January 1, 2011 through December 31, 2011, the Applicable Libor Margin shall be three hundred fifty
(350) basis points. From January 1, 2012 through December 31, 2012, the Applicable Libor Margin
shall be four hundred fifty (450) basis points. From and after January 1, 2013, the Applicable
Libor Margin shall be five hundred fifty (550) basis points.
Arranger. KeyBanc Capital Markets Inc.
Assignment and Assumption. See §20.1.
Assignment of Leases and Rents. Each collateral assignment of leases and
rents from each Collateral Property Mortgagor to the Agent pursuant to which such Collateral
Property Mortgagor has granted and assigned to the Agent, for the benefit of the Agent and the
Lenders, a first-priority security interest in, and assignment of, such Collateral Property
Mortgagor’s interest
as lessor with respect to all leases and rents thereunder of all or any part of the Eligible
Borrowing Base Property owned by such Collateral Property Mortgagor, as the same may be modified,
amended or restated from time to time.
Attributable Indebtedness. On any date, in respect of any Capitalized Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP.
Auction. See §2.12(a).
Auction Manager. See §2.12(a).
Base Rate. As at any applicable date of determination, the
greatergreatest of (i) the fluctuating annual rate of interest
announced from time to time by the Agent at the Agent’s Head Office as its “prime
rate”and, (ii) one half of one percent (0.50%) plus the
Federal Funds Rate and (iii) one and one quarter percent (1.25%) plus the Libor Rate for a term
of one month commencing on such date of determination. The Base Rate is a reference rate and
does not necessarily represent the lowest or best rate being charged to any customer. Any change
in the rate of interest payable hereunder resulting infrom a
change in the Base Rate shall become effective as of the opening of business on the day on which
such change in the Base Rate becomes effective, without notice or demand of any kind.
Base Rate Loan(s). The portion(s) of the Term Loan bearing interest calculated by
reference to the Base Rate.
Borrower. See the preamble hereto.
Borrower Information. See §2.3(g).
-4-
Borrower Materials. See §8.10(c).
Borrowing Base Pool. As determined from time to time, collectively, the Eligible
Borrowing Base Properties that the Borrower has designated in writing to be included in the
Borrowing Base Pool, subject to and in accordance with the terms hereof. The Borrowing Base Pool
as of the ClosingAmendment No. 5 Effective Date is set forth
on Schedule 0X.
Xxxxxxxxx Xxxx Xxxx Xxxxxxx Xxxxxxx. As at any date of determination, a capital
reserve equal to the total number of square feet of the Eligible Borrowing Base Properties on such
date, multiplied by $0.15.
Borrowing Base Property Conditions. See definition of “Eligible Borrowing Base
Property(ies)”.
Building(s). Individually and collectively, the buildings, structures and
improvements now or hereafter located on the Real Estate Assets.
Business Day. (i) For all purposes other than as covered by clause (ii) below, any
day other than a Saturday, Sunday or legal holiday on which banks in Cleveland, Ohio are open for
the conduct of a substantial part of their commercial banking business; and (ii) with respect to
all notices and determinations in connection with, and payments of principal and interest on, Libor
Rate Loans, any day that is a Business Day described in clause (i) and that is also a Libor
Business Day.
Capital Expenditures. Any expenditure for any item that would be treated or defined
as a capital expenditure under GAAP.
Capital Reserve. As at any date of determination, a capital reserve equal to the
weighted average of square feet of the Real Estate Assets during the applicable period, multiplied
by $0.15 per annum.
Capitalization Rate. The Capitalization Rate shall be
8.50%(i) 7.50% for DC Office Properties, (ii) 8.00% for Suburban
Office Properties, and (iii) 8.50% for Other Properties.
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 obligations under
which are required to be capitalized on the balance sheet of the lessee or obligor in accordance
with GAAP.
-5-
Cash and Cash Equivalents. As of any date of determination, the sum of (a) the
aggregate amount of unrestricted cash then actually held by the Borrower or any of its
Subsidiaries, (b) the aggregate amount of unrestricted cash equivalents (valued at fair market
value) then held by the Borrower or any of its Subsidiaries and (c) the aggregate amount of cash
then actually held by the Borrower or any of its Subsidiaries in the form of tenant security
deposits, but only to the extent such tenant security deposits are included as a liability on the
Borrower’s Consolidated balance sheet, escrows and reserves. 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” means that such asset has a liquid, par value in cash and is convertible to
cash on demand.
Change in Law. The occurrence, after the Amendment No. 5 Effective Date, of
any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty,
(b) any change in any law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or issuance
of any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the
Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States regulatory authorities, 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 or issued.
Change of Control. An event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire,
whether such
right is exercisable immediately or only after the passage of time (such right, an “option
right”)), directly or indirectly, of 35% or more of the equity securities of the Trust entitled to
vote for members of the board of directors or equivalent governing body of the Trust on a
fully-diluted basis (and taking into account all such securities that such person or group has the
right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the members of the
board of directors or other equivalent governing body of the Trust cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause (i) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body.
-6-
CERCLA. See §7.18.
Closing Date. August 7, 2007.
Code. The Internal Revenue Code of 1986, as amended and in effect from time to time.
Collateral. Collectively, the property, rights and interests of the Borrower and the
Subsidiary Guarantors which are subject to the security interests and liens created by the Security
Documents.
Collateral Property Mortgagor. Each Subsidiary Guarantor that has executed and delivered
a Security Deed in favor of the Agent pursuant to §5.3.
Commitment. With respect to each Lender, the amount set forth from time to time on
Schedule 2 hereto as the amount of such Lender’s Commitment to make Term Loan A, Term Loan
B, Term Loan C and Term Loan D to the Borrower, as such Schedule 2 may be updated by the
Agent from time to time.
Commitment Percentage. With respect to each Lender, the percentage set forth on
Schedule 2 hereto as such Lender’s percentage of the Total Commitment, as such Schedule
2 may be updated by the Agent from time to time.
Completed Loan Request. A loan request accompanied by all information required to be
supplied under the applicable provisions of §2.4.
Consolidated or consolidated. With reference to any term defined herein, shall mean
that term as applied to the accounts of the Borrower, the Trust and their respective Subsidiaries,
consolidated in accordance with GAAP unless otherwise specifically provided herein.
Consolidated Borrowing Base Indebtedness. As of any date of determination, the
aggregate principal amount of (i) the Property Level Debt and (ii) the Obligations outstanding at
such time.
Consolidated Debt Yield. In relation to the Borrower, the Trust and their respective
Subsidiaries for any fiscal quarter, the percentage determined by dividing (i) Consolidated EBITDA
for the most recentrecently ended fiscal quarter, annualized
by (ii) Consolidated Total Indebtedness as of the last day of such fiscal quarter.
-7-
Consolidated EBITDA. In relation to the Borrower, the Trust and their respective
Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income
or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with
GAAP (before minority interests and excluding the adjustment for so-called “straight-line rent
accounting”) for such period, plus (x) the following to the extent deducted in computing
such Consolidatednet income or loss for such period: (i)
Consolidated Total Interest Expense for such period, (ii) losses attributable to the sale or other
disposition of assets or debt restructurings in such period, (iii) real estate depreciation and
amortization for such period, and (iv(iv) acquisition costs
related to the acquisition of Real Estate Assets or the acquisition or origination of Structured
Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring
cash item in such period or in any future period, and (v) other non-cash charges for such
period; and minus (y) all gains attributable to the sale or other disposition of assets or
debt restructurings in such period, in each case adjusted to include the Borrower’s, the Trust’s or
any Subsidiary’s pro rata share of EBITDA (and the items comprising EBITDA) from
any Partially-Owned Entity in such period, based on its percentage ownership interest in such
Partially-Owned Entity (or such other amount to which the Borrower, the Trust or such Subsidiary is
entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s
length agreement).
Consolidated Fixed Charges. For any applicable period, an amount equal to the sum of
(i) Consolidated Total Interest Expense for such period plus (ii) the aggregate amount of
scheduled principal payments of Indebtedness (excluding balloon payments at maturity) required to
be made during such period by the Borrower, the Trust and their respective Subsidiaries on a
Consolidated basis plus (iii) the dividends and distributions, if any, paid or required to
be paid during such period on the Preferred Equity, if any, of the Borrower, the Trust and their
respective Subsidiaries (other than dividends paid in the form of capital stock), in
eachthe case of clauses (i) and (ii), adjusted to
include the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of the foregoing items of
any Partially-Owned Entity in such period, based on its percentage ownership interest in such
Partially-Owned Entity (or such other amount for which the Borrower, the Trust or such Subsidiary
is obligated based on an arm’s length agreement.
-8-
Consolidated Gross Asset Value. As of any date of determination, the
sum of (i) an amount equal to, without double-counting, the sum of (i) for all
Stabilized Real Estate Assets, the aggregate of the following amount determined for each such
asset, (x) the Net Operating Income of all of
theeach Stabilized Real Estate Assets (except as provided
below) Asset for the most recentrecently
ended fiscal quarter, less the Management Fee Adjustment, with the sum
thereofmultiplied by (y) 4; 4,
with the product thereof being divided by (z) the applicable Capitalization
Rate; plus (ii) an amount equal to the aggregate Cost Basis Value of Real Estate
Assets Under Development on such date, plus (iii) the Cost Basis Value of Land on such
date, plus (iv) an amount equal to the aggregate Cost Basis Value of
Mortgage NotesValue-Add Real Estate Assets on such date,
plus (v) the Structured Finance Investments Value on such date, plus (vi) the value
of Cash and Cash Equivalents on such date, as determined in accordance with GAAP and approved by
the Agent, provided that (ia) Net Operating
Income from Real Estate Assets acquired during the applicablemost
recently ended fiscal quarter and the immediately preceding fiscal quarter shall be excluded,
and such acquired Real Estate Assets shall be included at their Cost Basis Value, and
(iib) Net Operating Income from Real Estate Assets sold or
otherwise transferred during the applicablemost recently ended
fiscal quarter shall be excluded, with Consolidated Gross Asset Value being adjusted to
include,
without double-counting any amounts included in the Structured Finance Investments
Value, the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of Net Operating Income
(and the items comprising Net Operating Income) from any Partially-Owned Entity in such period,
based on its percentage ownership interest in such Partially-Owned Entity (or such other amount to
which the Borrower, the Trust or such Subsidiary is entitled based on an arm’s length agreement).
Consolidated Tangible Net Worth. As of any date of determination, an amount equal to
the Consolidated Gross Asset Value of the Borrower and its Subsidiaries at such date, minus
Consolidated Total Indebtedness outstanding on such date, provided that any amounts
attributable to Real Estate Assets that are required to be reported as “intangibles” under GAAP
pursuant to Financial Accounting Standards Board Statement of Policy No. 141 and 142 shall be
permitted to be added back to “tangible property” for purposes of calculating such Consolidated
Tangible Net Worth.
Consolidated Total Indebtedness. As of any date of determination, Consolidated Total
Indebtedness means for the Borrower, the Trust and their respective Subsidiaries, all obligations,
contingent or otherwise, which should be classified on the obligor’s balance sheet as liabilities,
or to which reference should be made by footnotes thereto, all in accordance with GAAP,
including. in any event and whether or not so classified, the
sum of (without double-counting), (i) all Accounts Payable on such date, and
(ii)all Indebtedness outstanding on such date, in each case whether Recourse,
Without Recourse or contingent, provided, however, that Accounts Payable,
amounts not drawn under the Unsecured Revolver Agreement on such date and all obligations under any
Swap Contracts (other than, for the avoidance of doubt, obligations with respect to any forward
purchase contract or put) shall not be included in calculating Consolidated Total Indebtedness, and
provided further that (without double-counting), each of the following shall be included in
Consolidated Total Indebtedness: (a) all amounts of guarantees, indemnities for borrowed money,
stop-loss agreements and the like provided by the Borrower, the Trust and their respective
Subsidiaries, in each case in connection with and guarantying repayment of amounts outstanding
under any other Indebtedness; (b) all amounts for which a letter of credit (including the
letters of credit issued under the Unsecured Revolver Agreement) has been issued for the
account of the Borrower, the Trust or any of their respective
-9-
Subsidiaries; (c) all amounts of bonds posted by the Borrower, the Trust or any of their respective Subsidiaries guaranteeing
performance or payment obligations; (d) all leaseany
obligations under any Capitalized Lease (including under Capital
Leases,but excluding obligations under ground
leases) operating leases or ground leases), the amount of which as of any date
shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such
date; and (e) all liabilities of the Borrower, the Trust or any of their respective
Subsidiaries as partners, members or the like for liabilities (whether such liabilities are
Recourse, Without Recourse or contingent obligations of the applicable partnership or other Person)
of partnerships or other Persons in which any of them have an equity
interestEquity Interest, which liabilities are for borrowed money or any of
the matters listed in clauses (a), (b), (c) or (d) above. Without limitation of the foregoing
(without double counting), with respect to any Partially-Owned Entity, (x) to the extent that the
Borrower, the Trust or any of their respective Subsidiaries or such Partially-Owned Entity is
providing a completion guaranty in connection with a construction loan entered into by a
Partially-Owned Entity, Consolidated Total Indebtedness shall include the Borrower’s, the Trust’s
or such Subsidiary’s pro rata liability under the Indebtedness relating to such
completion guaranty (or, if greater, the Borrower’s, the Trust’s or such Subsidiary’s potential
liability under such completion guaranty) and (y) in connection with the liabilities described in
clauses (a) and (d) above (other than completion guarantees, which are referred to in clause (x)),
the Consolidated Total Indebtedness shall include the portion of the liabilities of such Partially-
Owned Entity which are attributable to the Borrower’s, the Trust’s or such Subsidiary’s percentage
equity interestEquity Interest in such Partially-Owned Entity
or such greater amount of such liabilities for which the Borrower, the Trust or their respective
Subsidiaries are, or have agreed to be, liable by way of guaranty, indemnity for borrowed money,
stop-loss agreement or the like, it being agreed that, in any case, Indebtedness of a
Partially-Owned Entity shall not be excluded from Consolidated Total Indebtedness by virtue of the
liability of such Partially-Owned Entity being Without Recourse. For purposes hereof, the amount
of borrowed money shall equal the sum of (1) the amount of borrowed money as determined in
accordance with GAAP plus (2) the amount of those contingent liabilities for borrowed money
set forth in subsections (a) through (e) above, but shall exclude any adjustment for so-called
“straight--line interest accounting”.
Consolidated Total Interest Expense. For any applicable period, the aggregate amount
of interest required in accordance with GAAP to be paid, accrued, expensed or, to the extent it
could be a cash expense in the applicable period, capitalized (but excluding any deferred
financing costs), without double-counting, by the Borrower, the Trust and their respective
Subsidiaries during such period on: (i) all Indebtedness of the Borrower, the Trust and their
respective Subsidiaries (including the Term Loan, obligations under
-10-
Conversion Request. A notice given by the Borrower to the Agent of its election to
convert or continue a Loan in accordance with §2.5. 2.5 in the
form of Exhibit B-1 attached hereto.
Core FFO. For any applicable period, with respect to the Borrower and its
Subsidiaries, consolidated “funds from operations” less all acquisition costs, gains or losses on
early retirement of debt, contingent consideration and impairment charges to the extent the same
are taken into account in calculating consolidated “funds from operations”.
Cost Basis Value. The total contract purchase price of a Real Estate Asset plus all
commercially reasonable acquisition costs (including but not limited to title, legal and settlement
costs, but excluding financing costs) that are capitalized in accordance with GAAP.
DC Office Properties. Real Estate Assets constituting multi-story office properties
located within the District of Columbia.
Debtor Relief Laws. The Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws of the United
States or other applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
Default. When used with reference to this Agreement or any other Loan Document, an
event or condition specified in §14.1 that, but for the requirement that time elapse or notice be
given, or both, would constitute an Event of Default.
-11-
Disqualifying Environmental Event. Any Release or threatened Release of Hazardous
Substances, any violation of Environmental Laws or any other similar environmental event with
respect to any Eligible Borrowing Base Property that could reasonably be expected to cost in excess
of $500,0002,500,000 to remediate or, which, with respect to
all of the Eligible Borrowing Base Properties, could reasonably be expected to cost in excess of
$1,000,0005,000,000 in the aggregate to remediate.
Disqualifying Structural Event. Any structural issue which, with respect to any
Eligible Borrowing Base Property, could reasonably be expected to cost in excess of
$500,0002,500,000 to remediate or, which, with respect to all
of the Eligible Borrowing Base Properties, could reasonably be expected to cost in excess of
$1,000,0005,000,000 in the aggregate to remediate.
Distribution. With respect to any Person:
(i) the Borrower or a Subsidiary Guarantor, any distribution of cash or
other cash equivalent, directly or indirectly, to the partners or other equity
holders of the Borrower or Subsidiary Guarantor, as applicable; or any other
distribution on or in respect of any Equity Interests of the Borrower or Subsidiary
Guarantor, as applicable, (other than dividends payable solely in shares or other
Equity Interests by the Borrower or Subsidiary Guarantor, as applicable); and
(ii) the Trust, the declaration or payment of any dividend on or in respect of any
shares of any class of capital stock or other equity of such
Person Equity Interests of the Trust (other than dividends payable solely in
shares of common stock by the Trust); the purchase, redemption,
exchangeor other retirement of any shares of any class of capital
stock or other equity or beneficial interest of such PersonEquity
Interests of the Trust, directly or indirectly through a Subsidiary of such
Personthe Trust or otherwise; the return of capital by such
Personthe Trust to its shareholders, members or
partners as such; or any other distribution on or in respect of any shares of any
class of capital stock or other equity or beneficial interest of such
PersonEquity Interests of the Trust.
Distributions Pledge Agreement. The one or more Distributions Pledge Agreements
entered into by the Borrower and/or a Subsidiary Guarantor pursuant to which the Pledged
Distributions Interests are pledged to the Agent and the Lenders.
Dollars or $. Lawful currency of the United States of America.
Drawdown Date. The date on which the Term Loan is made, and the date on which any
portion of the Term Loan is converted or continued in accordance with §2.5.
-12-
Eligible Borrowing Base Property(ies). As of any date of determination, a Real Estate
Asset that: (i) is a Permitted Property, (ii) is wholly-owned in fee simple by the Borrower or a
Subsidiary Guarantor, (iii) the Borrower or such Subsidiary Guarantor has total control over all
decisions regarding such Real Estate Asset (including the operation, financing and disposition
thereof), (iv) is not the subject of a Disqualifying Environmental Event or a Disqualifying
Structural Event, (v) is not subject to any Liens (other than Permitted Liens) or any material
title, survey or similar defect, (vi) if owned by any Subsidiary Guarantor, the Equity Interests of
such Subsidiary Guarantor are not subject to any Lien in favor of any Person other than the Agent
and the Lenders, and (vii) is not subject to any material default or event of default (including,
in any event, (x) any payment default, (y) any financial covenant default and (z) any default as a
result of which the Borrower or the applicable Subsidiary has given, or has received, any notice of
default or other enforcement action) under any Property Level Loan Documents (the foregoing clauses
(i) through (vii) being herein referred to collectively as the “Borrowing Base Property
Conditions”).
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.
Eligible Unencumbered Property(ies). As defined in the Unsecured Revolver Agreement.
Environmental Laws. See §7.18(a).
Environmental Reports. See §7.18
Equity Interest. Any and all shares, partnership or member interests, participations or
other equivalents (however designated) of capital stock of a corporation and any and all equivalent
ownership interests in a Person which is not a corporation and any and all warrants, options or
other rights to purchase any of the foregoing.
-13-
Equity Pledge Agreement. The one or more Equity Pledge Agreements entered into by the
Borrower and/or a Subsidiary Guarantor pursuant to which the Pledged Equity Interests are pledged
to the Agent and the Lenders.
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.
Event of Default. See §14.1.
Excluded Information. See § 2.11(d).
Excluded Taxes. With respect to the Agent, any Lender or any other recipient of any
payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed
on or measured by its overall net income (however denominated), and franchise taxes imposed on it
(in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which such recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable Lending Office is located or as a result of any other
present or former connection (other than a connection arising solely from this Agreement or any
other Loan Document) between such recipient and such jurisdiction, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction described in
clause (a) above, (c) any backup withholding tax that is required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with clause (A) of §4.1(h)(ii), (d) in the
case of a Foreign Lender, any United States withholding tax that (i) is required to be imposed on
amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such
Foreign Lender’s failure or inability (other than as a result of a change in law) to comply with
clause (B) of §4.1(h)(ii), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to §4.1(c) or
(e), and (e) any withholding taxes imposed by the United States pursuant to FATCA.
-14-
FATCA. Section 1471 through 1474 of the Code, as of the date of this Agreement or any
amended or successor provision that is substantially comparable and not materially more onerous to
comply with, and, in each case, any regulations or official interpretations thereof.
Federal Funds Rate. For any day, a fluctuating interest rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by the Agent from 3 federal funds brokers
of recognized standing selected by the Agent.
Financial Statement Date. March 31, 2007. June 30,
2011.
Foreign Lender. Any Lender that is organized under the Laws of a jurisdiction other than
that in which the Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
FP Redland Tech. FP Redland Technology Center LP, a Delaware limited partnership.
FPLP. See the preamble hereto.
“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 at
the applicable date of determination.
GAAP. Generally accepted accounting principles, consistently applied.
Governmental Authority. The government of the United States or any other nation, or of
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 (including any supra-national bodies such as the European Union or the European Central
Bank).
Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
§3(2) of ERISA maintained or contributed to by the Borrower or the Trust, 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.
-15-
Guarantor. Collectively, unless referred to in their individual capacities,
the Trust and each of the Subsidiary Guarantors.
Hazardous Substances. See §7.18(b).
Implied Debt Service. As at any date of determination, an amount equal to (a) the
average amount of Consolidated Borrowing Base Indebtedness outstanding during the applicable
period, multiplied by (b) the Mortgage Constant.
Increase. See §2.8.
Increase Conditions. The approval of the Agent (not to be unreasonably withheld or
delayed) and the satisfaction of each and all of the following:
| (a) | no Default or Event of Default shall have occurred and be continuing (both before and after giving effect to the Increase) and all representations and warranties contained in the Loan Documents shall be true and correct as of the effective date of the Increase (except to the extent that such representations and warranties relate expressly to an earlier date); |
| (b) | the Increase shall be extended on the same terms and conditions applicable to the Term Loan; |
| (c) | to the extent any portion of the Increase is committed to by a third party financial institution or institutions not already a Lender hereunder, such financial institution shall be an Eligible Assignee and approved by the Agent (such approval not to be unreasonably withheld or delayed) and each such financial institution shall have signed a counterpart signature page becoming a party to this Agreement and a “Lender” hereunder; |
| (d) | one or more of the existing Lenders or such other financial institutions which may become parties hereto incident to the Increase have committed in writing pursuant to the terms hereof to lend the full aggregate amount of the Increase; and |
| (e) | if requested by any Lender participating in such Increase, the Borrower shall have delivered new Notes or amended and restated Notes to the extent necessary to reflect such Lender’s Commitment after giving effect to the Increase. |
-16-
Indebtedness. All obligations, contingent and otherwise, that in accordance
with GAAP should be classified upon the obligor’s balance sheet as liabilities, or to which
reference should be made by footnotes thereto, including in any event
and whether or not so
classified: (a) all debt and similar monetary obligations, whether direct or indirect, including,
without limitation, all Obligations and all obligations under any hedge, swap or other interest
rate protection arrangement, any forward purchase contract or any put; (b) all liabilities secured
by any Lien or other encumbrance existing on property owned or acquired subject thereto, whether or
not the liability secured thereby shall have been assumed; (c) all reimbursement obligations under
letters of credit; and (d) all guarantees for borrowed money, endorsements and other contingent
obligations, whether direct or indirect, 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. With respect to a Person, as of
any date of determination, all of the following (without duplication): (a) all obligations of such
Person in respect of money borrowed, whether direct or indirect, including, without limitation, all
Obligations; (b) all obligations of such Person (other than trade debt incurred in the ordinary
course of business), whether or not for money borrowed (i) represented by notes payable, or drafts
accepted, in each case representing extensions of credit (but only to the extent of any outstanding
balance), (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting
purchase money indebtedness, conditional sales contracts, title retention debt instruments or other
similar instruments, upon which interest charges are customarily paid or that are issued or assumed
as full or partial payment for property; (c) any obligations under any
Capitalized Lease (but excluding obligations under operating leases or ground leases) of such
Person, the amount of which as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date; (d) all net obligations under any Swap Contract;
(e) all obligations of such Person or any other Person secured by any Lien or other encumbrance
existing on property of such Person; (f) all reimbursement obligations of such Person under or in
respect of any letters of credit (including the Letters of Credit issued under the Unsecured
Revolver Agreement) or acceptances (whether or not the same have been presented for payment); (g)
all obligations of such Person in respect of “off-balance sheet arrangements” (as defined in Item
303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act of 1933, as amended from time
to time) which such Person would be required to disclose to the SEC; and (h) all obligations in the
nature of those described in clauses (a)-(g) above of other Persons which such Person has
guaranteed or are otherwise recourse to such Person. For the purposes hereof, the amount of any
net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.
Indemnified Taxes. Taxes other than Excluded Taxes
Indemnitee. See §17(b).
Information. See §8.10(d).
-17-
Interest Payment Date. As to any portion of the Term Loan, the last day of every
calendar month in which such Loan is outstanding, and, in addition, with respect to any Libor Rate
Loan, the last day of the applicable Interest Period.
Interest Period. With respect to any portion of the Term Loan, but without
duplication of any other Interest Period, (a) initially, the period commencing on the Drawdown Date
of such Loan and ending on the last day of one of the following periods (as selected by the
Borrower in a Completed Loan Request): (i) for any Base Rate Loan, the calendar month in which such
Base Rate Loan is made (whether by borrowing or by conversion from a Libor Rate Loan), and (ii) for
any Libor Rate Loan, 1, 2 or 3 months; and (b) thereafter, each period commencing at the end of the
last day of the immediately preceding Interest Period applicable to such portion of the Term Loan
and ending on the last day of the applicable period set forth in (a)(i) and (ii) above (as selected
by the Borrower in a Conversion Request); provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a
LIBORLibor Rate Loan would otherwise end on
a day that is not a LIBORLibor Business Day,
such Interest Period shall end on the next succeeding
LIBORLibor Business Day, unless such next
succeeding LIBORLibor Business Day occurs in
the next calendar month, in which case such Interest Period shall end on the next
preceding LIBORLibor Business Day, as
determined conclusively by the Agent in accordance with the then current bank
practice in London;
(B) if the Borrower shall fail to give timely notice of conversion or
continuation of any Libor Rate Loans as provided in §2.5, or if the Borrower
shall be deemed to have requested a requests a Borrowing of,
conversion to, or continuation
ofthe affected Libor Rate Loan to a Base Rate Loan on the last day of the then
current Interest Period with respect thereto Libor Rate Loans in any Completed
Loan Request or Conversion Request, as applicable, but fails to specify an Interest Period, in each
case, the Borrower will be deemed to have given timely notice specifying an Interest Period of one
month;
(C) 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 (D) below, end on the last Business Day of
a calendar month; and
(D) no Interest Period may extend beyond the Maturity Date.
Interest Rate Protection Arrangements. See §8.15.
-18-
Investment Permitted Property. A property which is an income producing office, industrial
or a so-called flex property (or a Real Estate Asset Under Development which will be an income
producing office, industrial or so-called flex property when completed) and is located in the State
of Maryland, the Commonwealth of Virginia or the District of Columbia.
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 Equity Interests or for the acquisition of
Indebtedness of, or for loans, advances, capital contributions or transfers of property to, any
Person; (ii) in connection with Real Estate Assets Under Development; and (iii) 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 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); (b) there shall not be deducted in
respect of any Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise; and (c) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
Joinder Documents. The one or more Joinder Agreements among the Agent (on behalf of
itself and the Lenders) and any Wholly-ownedOwned Subsidiary
which is to become a Subsidiary Guarantor at any time after the Closing Date, the form of which is
attached hereto as Exhibit E, together with all other documents, instruments and
certificates required by any such Joinder Agreement to be delivered by such
Wholly-ownedOwned Subsidiary to the Agent and the Lenders on
the date such Wholly-ownedOwned Subsidiary becomes a Borrower
hereunder.
Land. An undeveloped Real Estate Asset owned in fee by the Borrower.
Laws. Collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
Leases. Leases, licenses and other written agreements relating to the use or
occupation of space in or on the Buildings or on the Real Estate Assets by persons other than the
Borrower or any other member of the Potomac Group.
Lenders. Collectively, KeyBank and each other lending institution which, as of any
date of determination, is a party to this Agreement, and any other Person who becomes an assignee
of any rights of a Lender pursuant to §20 or a Person who acquires all or substantially all of the
stock or assets of a Lender.
-19-
Lending Office. As to any Lender, the office or offices of such Lender described as such in
such Lender’s most recent administrative materials on file with the Agent, or such other office or
offices as a Lender may from time to time notify the Borrower and the Agent.
Libor Business Day. Any day on which commercial banks are open for international
business (including dealings in Dollar deposits) in London, England.
Libor Breakage Costs. With respect to any Libor Rate Loan to be prepaid prior to the
end of the applicable Interest Period or not borrowed, converted or continued (“drawn” and, with
correlative meaning, “draw”) after elected, a prepayment “breakage” fee in an amount, as reasonably
determined by the Agent, required to compensate the Lenders for any and all additional losses,
costs or expenses that such Lenders incur as a result of such prepayment or failure to borrow,
convert or continue a Libor Rate Loan, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of
deposits of other funds acquired by any Lender to fund or maintain such Libor Rate Loan.
Libor Rate. For any Libor Rate Loan for any Interest Period, the average rates as
shown in Reuters Screen LIBOR01 Page (or any successor service, or, if such Person no longer
reports such rate, as determined by Agent, by another commercially available source providing such
quotations approved by Agent) at which deposits in U.S. dollars are offered by first class banks in
the London Interbank Market at approximately 11:00 a.m. (London time) on the day that is two (2)
Libor Business Days prior to the first day of such Interest Period with a maturity approximately
equal to such Interest Period and in an amount approximately equal to the amount to which such
Interest Period relates, adjusted
for reserves and taxes if required by future regulations. If Reuters
. If such service or such other Person approved by Agent described above no
longer reports such rate or Agent determines in good faith that the rate so reported no longer
accurately reflects the rate available to Agent in the London Interbank Market, then any and all
outstanding Loans shall be Base Rate Loans and bear interest at the Base Rate plus the Applicable
Base Rate Margin. For any period during which a Reserve Percentage shall apply, the Libor Rate with
respect to Libor Rate Loans shall be equal to the amount determined above divided by an amount
equal to 1 minus the Reserve Percentage.
Libor Rate Loan(s). The portion(s) of the Term Loan bearing interest calculated by
reference to the Libor Rate.
Lien. See §9.2.
Loan Modification Agreement. See §2.11(b).
Loan Modification Offer. See §2.11(a).
-20-
Loan. Any of Term Loan A, Term Loan B, Term Loan C or Term Loan D, or any portion
thereof, as the context may require, and/or all of such Term Loan A, Term Loan B, Term Loan C and
Term Loan D together, as the context may require.
Loan Documents. Collectively, this Agreement, the Splitter Agreement, the Trust
Guaranty, theeach Subsidiary
GuarantiesGuaranty, the Notes, the Security Documents, the Joinder Documents and
any and all other agreements, instruments, documents or certificates now or hereafter evidencing or
otherwise relating to the Term Loan and executed and delivered by or on behalf of the Borrower or
its Subsidiaries or the Trust or its Subsidiaries in connection with or in any way relating to the
Term Loan or the transactions contemplated by this Agreement (other than any Protected Interest
Rate Agreement), and all schedules, exhibits and annexes hereto or thereto, as any of the same may
from time to time be amended and in effect.
Majority Lenders. As of any date of determination, the Lenders whose aggregate
Commitments constitute at least sixty-six and two-thirds percent (66-2/3%) of the Total
Commitmentholding more than
fifty percent (50%) of the aggregate principal amount of the outstanding Loan, provided that (x) at
any time when there are two or more Lenders, the Majority Lenders must include at least two
Lenders, (y) at any time when there are fewer than three Lenders, the Majority Lenders must include
all Lenders and (z) the Loans of any Defaulting Lender shall be excluded for purposes of making a
determination of Majority Lenders.
Maturity Date. (i) With reference to Term Loan A, January 15, 2011, (ii) with
reference to Term Loan B, January 15, 2012, (iii) with reference to Term Loan C, January 15, 2013,
and (iv) with reference to Term Loan D, January 15, 2014; in each case, or such earlier date on
which any of such Term Loans shall become due and payable pursuant to the terms hereof.
-21-
Mortgage Collateral Properties. Collectively, the Eligible Borrowing Base Properties owned by
the Collateral Property Mortgagors.
Mortgage Constant. As at any date of determination, a ratio that represents the
payment of principal and interest on an amortizing mortgage loan based on (i) an interest rate
equal to the greater of (x) the then 10-year treasury rate plus 1.50% and (y) 7.00%, and (ii) a
30-year mortgage-style amortization schedule.
Mortgage Documents. See §5.3(a).
Mortgage Note(s). A mortgage note, in which the Borrower holds a direct interest as
payee, for real estate that is developed, so long as at the relevant date of determination, such
Mortgage Note is not in default.
Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA
maintained or contributed to by the Borrower or the Trust, as the case may be, or any ERISA
Affiliate.
Net Operating Income. For any period, an amount equal to (i) the aggregate rental and
other income from the operation of the applicable Real Estate Assets during such period;
minus (ii) all expenses and other proper charges incurred in connection with the operation
of such Real Estate Assets (including, without limitation, real estate taxes, management fees (or
Overhead Allocation, as applicable), payments under ground leases and bad debt expenses) during
such period; but, in any case, before payment of or provision for debt service charges for such
period, income taxes for such period, capital expenses for such period, and depreciation,
amortization, and other non-cash expenses for such period, all as determined in accordance with
GAAP (except that any rent leveling adjustments shall be excluded from rental income).
Note Record. A Record with respect to any Note.
Notes. Collectively, the separate promissory notes of the Borrower in favor of each
Lender in substantially the form of Exhibit A hereto, in an aggregate principal amount
equal to Term Loan A, Term Loan B, Term Loan C and Term Loan D, respectively, in effect from time
to time, dated as of the date hereof or as of such later date as any Person becomes a Lender under
this Agreement, and completed with appropriate insertions, as each of such notes may be amended,
replaced, substituted and/or restated from time to time (including in connection with any
Increase).
Obligations. All indebtedness, obligations and liabilities of the Borrower and its
Subsidiaries to any of the Lenders or the Agent, individually or collectively (but without
double-counting), under this Agreement and each of the other Loan Documents and in respect of any
of the Term Loan (including Term Loan A, Term Loan B, Term Loan C and Term Loan D), the Notes and
the Security Documents and other instruments at any time evidencing any thereof, whether existing
on the date of this Agreement or arising or
-22-
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, and including any indebtedness,
obligations and liabilities of the Borrower and its Subsidiaries under any Protected Interest Rate
Agreement entered into with any Lender Person that was a Lender at the time such Protected Interest Rate
Agreement was entered into or with any Person that has become a Lender, provided, in each case,
that written notice of the existence of such Protected Interest Rate Agreement has been provided to
the Agent and such Protected Interest Rate Agreement is for the purpose of hedging interest
exposure under this Agreement.
OFAC. The Office of Foreign Assets Control of the United States Department of the Treasury.
Organizational Documents. Collectively, (i) the Agreement of Limited Partnership of
FPLP, (ii) the Certificate of Limited Partnership of FPLP, (iii) the Amended and Restated
Declaration of Trust of the Trust, (iv) the Amended and Restated
By-Laws of the Trust, and (v) all of the partnership agreements, corporate charters and by-laws,
limited liability company operating agreements, joint venture agreements or similar agreements,
charter documents and certificates or other agreements relating to the formation, organization or
governance of the Borrower and each Subsidiary Guarantor, in each case as any of the foregoing may
be amended in accordance with §8.20.
Other Taxes. All present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or under any other Loan
Document or from the execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.
Other Properties. All Real Estate Assets that are not DC Office Properties or Suburban Office
Properties.
Overhead Allocation. For any period, the amount of corporate overhead included as a
property operating expense in lieu of a management fee.
Partially-Owned Entity(ies). Any of the partnerships, associations, corporations,
limited liability companies, trusts, joint ventures or other business entities or Persons in which
the Borrower or the Trust, directly, or indirectly through its full or partial ownership of another
entity, own an equity interest
Equity Interest, but which is not required in accordance with GAAP to be
consolidated with the Borrower or the Trust for financial reporting purposes.
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 Assets.
-23-
Permitted Amendments. See §2.11(c).
Permitted Liens. Liens permitted by §9.2.
Permitted Property. A property which is an income producing office, industrial or a
so-called flex property and is located in the State of Maryland, the Commonwealth of Virginia or
the District of Columbia.
Person. Any individual, corporation, general partnership, limited partnership, trust,
limited liability company, limited liability partnership, unincorporated association, business, or
other legal entity, and any government (or any governmental agency or political subdivision
thereof).
Pledged Distributions Entity(ies). Collectively, the Subsidiary Guarantors whose
Distributions to Borrower or a Wholly-owned Subsidiary of Borrower become Pledged Distributions
Interests.
Pledged Distributions Interests. Collectively, one hundred percent (100%) of the
Borrower’s or a Subsidiary Guarantor’s right, title and interest in and to Distributions received
from any Pledged Distributions Entity and of the Borrower’s or such Subsidiary Guarantor’s legal,
equitable and beneficial right, title and interest in and to Distributions from any Pledged
Distributions Entity, together with such additional rights and interests as are not prohibited to
be pledged, assigned and/or transferred under the applicable Property Level Loan Documents.
Pledged Distributions Properties. Collectively, the Eligible Borrowing Base
Properties directly or indirectly owned by the Pledged Distributions Entities.
Pledged Entities. Collectively, (i) the Pledged Distributions Entities and (ii) the
Pledged Equity Entities.
Pledged Equity Entity (ies). Collectively, the Subsidiary Guarantors whose Equity
Interests become Pledged Equity Interests.
Pledged Equity Interests. Collectively, one hundred percent (100%) of the legal,
equitable and beneficial ownership interests in any Subsidiary Guarantor that is a direct or
indirect owner of an Eligible Borrowing Base Property that are not subject to any Property Level
Loan Document which prohibit the pledge, assignment and/or transfer of such interests.
Pledged Equity Properties. Collectively, the Eligible Borrowing Base Properties
directly or indirectly owned by the Pledged Equity Entities.
Pledged Interests. Collectively, (i) the Pledged Distributions Interests and (ii) the
Pledged Equity Interests.
-24-
Pledged Properties. Collectively, (i) the Pledged Distributions Properties and (ii)
the Pledged Equity Properties.
Potomac Group. Collectively, (i) FPLP, (ii) the Trust, (iii) the respective
Subsidiaries of FPLP and the Trust and (iv) the Partially-Owned Entities.
Preferred Equity. Any preferred stock, preferred partnership interests, preferred
member interests or other preferred equity interestsEquity Interests issued by the Borrower, the Trust or any of
their respective Subsidiaries.
Property Level Debt. Collectively, any Indebtedness secured by a Lien encumbering an
Eligible Borrowing Base Property which Lien is permitted pursuant to
§9.2(xix), provided,
however, that in no event shall Property Level Debt include any Indebtedness under the Unsecured
Revolver.
Property Level Loan Documents. Collectively, the agreements, documents and
instruments evidencing, securing or otherwise relating to the Property Level Debt to which the
holder of such Property Level Debt is a party or intended beneficiary.
Protected Interest Rate Agreement. An agreement which evidences the interest
protection arrangementsInterest Rate
Protection Arrangements required by §8.15, and all extensions, renewals, modifications, amendments,
substitutions and replacements thereof.
RCRA. See §7.18.
Real Estate Assets. The fixed and tangible properties consisting of Land and/or
Buildings owned by the Borrower or any of its Subsidiaries at the relevant time of reference
thereto, including, without limitation, the Eligible Borrowing Base Properties at such time of
reference.
Real Estate AssetsAsset Under Development. Any Real Estate Assets for which
the Borrower or any of its Subsidiaries is actively pursuing construction of one or more
Buildings or other improvements and 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, provided that any such Real Estate Asset (or, if
applicable, any Building comprising a portion of any such Real Estate Asset) will no
longer be consideredReal Estate Asset that is under
development or substantial redevelopment. A Real Estate Asset Under Development shall cease to
constitute a Real Estate Asset Under Development on the date upon which a certificate of occupancy has
issued for such Real Estate Asset (or Building) or such Real Estate Asset (or Building) may
otherwise be lawfully occupied for its intended use
earlier of (a) the one-year anniversary
date of the development or redevelopment completion, and (b) the first day of the first full fiscal
quarter after such Real Estate Asset achieves a stabilized occupancy of 80%.
-25-
Record. The grid attached to any Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by any Lender with respect to any Loan.
Recourse. With reference to any obligation or liability, any liability or obligation
that is not Without Recourse to the obligor thereunder, directly or indirectly. For purposes
hereof, a Person shall not be deemed to be “indirectly” liable for the liabilities or obligations
of an obligor solely by reason of the fact that such Person has an ownership interest in such
obligor, provided that such Person is not otherwise legally liable, directly or indirectly,
for such obligor’s liabilities or obligations (e.g., without limitation, by reason of a guaranty or
contribution obligation, by operation of law or by reason of such Person being a general partner of
such obligor).
Redland Property. That certain Real Estate Asset owned by FP Redland Technology Center LP
commonly known as Land Units 2 and 3 in the Redland Tech Center Land Condominium formed pursuant to
the Declaration of Condominium for Redland Tech Center Land Condominium recorded in Liber 19839 at
folio 681 in the land records of Xxxxxxxxxx County, Maryland, as amended, and located at 520 and
000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, together with all easements, appurtenances, rights,
privileges, reservations, tenements, and hereditaments belonging thereto.
REIT. A “real estate investment trust”, as such term is defined in Section 856 of the
Code.
Related Parties. With respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.
Release. See §7.18(c)(iii).
Reserve Percentage. The maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed on member banks of the Federal Reserve
System against “Euro-currency Liabilities” as defined in Regulation D.
XXXX. See §7.18.
SEC. The Securities and Exchange Commission, or any successor thereto.
SEC Filings. Collectively, (i) each Form 10-K, 10-Q and Form 8-K filed by the Trust
with the SEC from time to time and (ii) each of the other public forms and reports filed by the
Trust with the SEC from time to time.
-26-
Security Deeds. Collectively, the mortgage or deed of trust from each Collateral Property
Mortgagor to the Agent for the benefit of the Lenders (or to trustees named therein acting on
behalf of the Agent for the benefit of the Lenders), pursuant to which such Collateral Property
Mortgagor has conveyed to the Agent a first-priority security interest in and to the Eligible
Borrowing Base Property it owns as security for the Obligations, as the same may be modified,
amended or restated from time to time.
Security Documents. Collectively, (i) the Equity Pledge Agreement, (ii) the
Distributions Pledge Agreement, (iii) each Security Deed, (iv) each Assignment of Leases and Rents,
(v) the Account Agreement, (ivvi) any
UCC-1 financing statement relating to the Collateral, and
(vvii)
each other document, agreement or instrument that at any time evidences the Collateral.
Stabilized Real Estate Asset. Any Real Estate Asset that is not a Real Estate Asset Under
Development, a Value-Add Real Estate Asset or Land.
Structured Finance Investments. Collectively, Investments by a Borrower or one of its
Subsidiaries directly or indirectly in (i) Mortgage Notes, (ii) mezzanine loans evidenced by
promissory notes in which the Borrower holds a direct interest as payee, to entities that hold
direct or indirect interests in DC Office Properties, and (iii) Investments in preferred equity
(including preferred limited partnership interests) in entities owning DC Office Properties.
Structured Finance Investments Value. As of any date of determination, an amount equal to the
aggregate value of all Structured Finance Investments, with the value of each Structured Finance
Investment being deemed to be the lower of (i) the acquisition or origination cost of such
Structured Finance Investment plus all commercially reasonable costs that are capitalized in
accordance with GAAP incurred in connection with the acquisition or origination of such Structured
Finance Investment, and (ii) the value of such Structured Finance Investment determined in
accordance with GAAP; provided, however, that in the case of any Structured Finance Investment in
respect of
which the obligor is in default of any payment obligation, the Structured Finance Investments
Value shall be zero.
Subsidiary. Any corporation, association, partnership, limited liability company,
trust, joint venture or other business entity or Person which is required to be consolidated with
the Borrower or the Trust in accordance with GAAP.
Subsidiary Guarantors. Each of the direct and indirect Subsidiaries of the Borrower
which either owns an Eligible Borrowing Base Property or which has entered into a Subsidiary
Guaranty or any Security Document, as applicable. All of the Subsidiary Guarantors as of the
ClosingAmendment No. 5 Effective Date are set forth on Schedule 1.
-27-
Subsidiary Guaranty. Collectively, the one or more Subsidiary Guaranties made by
certain Subsidiary Guarantors, on a joint and several basis, in favor of the Agent and the Lenders,
together with any additional guaranty of the Obligations or joinder agreement to any existing
guaranty of the Obligations provided by any Subsidiary Guarantor hereafter, pursuant to which the
Subsidiary Guarantors guarantee to the Agent and the Lenders the unconditional payment and
performance of the Obligations, as the same may be modified, amended, restated or reaffirmed from
time to time.
Swap Contract. (a) Any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.
Swap Termination Value. In respect of any one or more Swap Contracts, after taking into
account the effect of any legally enforceable netting agreement relating to such Swap Contracts,
(a) for any date on or after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior
to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market value(s) for
such Swap Contracts, as determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or
any Affiliate of a Lender).
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.
-28-
Term Loan. Loan.
Term Loan A. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan A on the Amendment No. 3 Effective Date.
Term Loan B. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan B on the Amendment No. 3 Effective Date.
Term Loan C. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan C on the Amendment No. 3 Effective Date.
Term Loan D. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan D on the Amendment No. 3 Effective Date.
Total Commitment. As of any date, the sum of the then current Commitments of the
Lenders under each of Term Loan A, Term Loan B, Term Loan C and Term
Loan D. As of the Amendment
No. 3 Effective Date, the Total Commitment shall be $40,000,000.
Tranche. Any of Term Loan A, Term Loan B, Term Loan C, Term Loan D or any new term loan
tranche advanced hereunder pursuant to §2.8, as applicable.
Trust. See preamblerecitals.
Trust Guaranty. The Guaranty, dated as of the date hereof, made by the Trust in favor
of the Agent and the Lenders pursuant to which the Trust guarantees to the Agent and the Lenders
the unconditional payment and performance of the Obligations, as the same may be modified, amended,
restated or reaffirmed from time to time.
2011 Term Loan. Collectively, the term loans in the aggregate original principal amount of
$175,000,000 made pursuant to the 2011 Term Loan Agreement, as the same may be modified, increased,
refinanced, replaced, amended or restated from time to time.
2011 Term Loan Agreement. The Term Loan Agreement dated as of July 18, 2011, among the
Borrower, certain Subsidiaries of the Borrower, KeyBank National Association, individually and as
administrative agent and certain other lenders, as the same may be modified, increased, refinanced,
replaced, amended or restated from time to time.
Type. As to any portion of the Term Loan, its nature as a Base Rate Loan or a Libor
Rate Loan.
-29-
Unanimous Lender Approval. The written consent of each Lender that is a party to this
Agreement at the time of reference.
Unsecured Revolver.
The $175,000,000255,000,000 revolving credit facility pursuant to
the Unsecured Revolver Agreement, as the same may be modified, increased, refinanced, replaced,
amended or restated from time to time.
Unsecured Revolver Agreement.
The SecondThird Amended and Restated Revolving Credit
Agreement dated as of December 29, 2009,
June 16, 2011, among the Borrower, and certain of
its Subsidiariesthe Unsecured Revolver Subsidiary
Borrowers, KeyBank National Association, individually and as administrative agent and certain other
lenders, as the same may be modified, increased, refinanced, replaced, amended or restated from
time to time.
Unsecured Revolver Subsidiary Borrowers. Collectively, each of the direct and indirect
Subsidiaries of the Borrower that from time to time is a borrower under the Unsecured Revolver
Agreement.
Unsecured Revolver Subsidiary Guarantors. Collectively, (i) the direct and indirect
Subsidiaries of the Borrower that, pursuant to the terms of §8.21(a) of the Unsecured Revolver
Agreement, at any time and from time to time, are required to enter into a guaranty of the
obligations under the Unsecured Revolver Agreement or a joinder agreement in respect of an existing
guaranty of such obligations and that have entered into the Additional Subsidiary Guaranty or an
Additional Subsidiary Guaranty Joinder Agreement, and (ii) the Unsecured Revolver Subsidiary
Borrowers that have entered into the Additional Subsidiary Guaranty or an Additional Subsidiary
Guaranty Joinder Agreement. All of the Unsecured Revolver Subsidiary Guarantors as of the
Amendment No. 5 Effective Date are set forth on Schedule 1B.
USA Patriot Act. See §31(a).
Value-Add Real Estate Assets. Any newly acquired Real Estate Asset that is less than 50%
occupied at the time of acquisition. A Value-Add Real Estate Asset shall cease to constitute a
Value-Add Real Estate Asset at the earlier of (a) the first day of the first full fiscal quarter
after such Real Estate Asset achieves a stabilized occupancy of 80%, and (b) the one-year
anniversary of such Real Estate Asset’s acquisition date; provided that the Redland Property shall
be deemed a Value-Add Real Estate Asset until the earlier of (x) the date that the value of the
Redland Property calculated in accordance with clause (i) of the definition of Value of
Unencumbered Properties (as defined in the Unsecured Revolver Agreement) exceeds the Cost Basis
Value of the Redland Property (valued at the contract price paid by FPLP to acquire its interest in
FP Redland Tech) and (y) June 30, 2012.
-30-
Value of Eligible Borrowing Base Properties. At any date of determination, an amount
equal to, without double counting, the sum of (i) for all Stabilized Real Estate
Assets, the aggregate of the following amount determined for each such asset (x) the Net Operating
Income for the most recentrecently ended
fiscal quarter of tbeeach Eligible Borrowing Base
Properties owned by the Borrower or a Subsidiary Guarantor for at least
two complete fiscal quarters, less the Management Fee Adjustment relating to such
Eligible Borrowing Base Properties, with the sum thereof
Property that is
a Stabilized Real Estate Asset, multiplied by (y) 4; with the product thereof being
divided by (z) the applicable Capitalization Rate, plus (ii) an amount
equal to the Cost Basis Value of
any
aggregate Cost Basis Value of all Eligible Borrowing Base
Property not owned for two
complete fiscal quartersProperties that are
Value-Add Real Estate Assets, plus (iii) the aggregate Cost Basis Value of all Eligible Borrowing
Base Properties acquired during the most recently ended fiscal quarter and the immediately
preceding fiscal quarter, provided that (a) the Net Operating Income attributable to any
Eligible Borrowing Base Property sold or otherwise transferred during the applicable period shall
be excluded from the calculation of the Value of Eligible Borrowing Base Properties and (b) the Net
Operating Income of Eligible Borrowing Base Properties included at their Cost Basis Value shall be
excluded.
Wholly-ownedOwned Subsidiary. Any single purpose entity which is a Subsidiary of
FPLP and of which FPLP at all times owns directly or indirectly (through a Subsidiary or
Subsidiaries) 100% of the outstanding voting or controlling interests and of the economic
interests, as a result of which FPLP, directly or indirectly (through a Subsidiary
or Subsidiaries) has total control over all decisions regarding such Subsidiary.
“Without Recourse” or “without recourse”. With reference to any obligation or
liability, any obligation or liability for which the obligor thereunder is not liable or obligated
other than as to its interest in a designated Real Estate Asset 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 and misapplication indemnities, as are usual and
customary in like transactions involving institutional lenders at the time of the incurrence of
such obligation or liability, and to usual and customary environmental indemnification obligations
in connection with such designated Real Estate Asset.
§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 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.
-31-
(v) Accounting terms not otherwise defined herein have the meanings assigned to
them by generally accepted accounting principles applied on a consistent basis by the
accounting entity to which they refer.
(vi) The words “include”, “includes” and “including” are not limiting.
(vii) All terms not specifically defined herein or by generally accepted
accounting principles, 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.
§1.3. GAAP.
Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted
or determined in accordance with GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Majority Lenders shall so request, the Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Majority Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall provide to the Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP. For purposes of determining compliance with
any covenant (including the computation of any financial covenant) contained herein, Indebtedness
of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding
principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be
disregarded.
§2. THE TERM LOAN.
§2.1 Commitment to Lend. Subject to the provisions of §2.4, §12 and the other terms
and conditions set forth in this Agreement, each of the Lenders severally agrees to make a term
loan to the Borrower on the Closing Date (and thereafter pursuant to Section 2.8 hereof) in an
aggregate principal amount equal to such Lender’s Commitment Percentage of the Total Commitment.
The outstanding amount of the Term Loan shall not at any time exceed the Total Commitment. In no
event shall any Lender be required to fund any amounts in excess of its then-current Commitment.
-32-
The Term Loan shall be made pro rata in accordance with each Lender’s
Commitment Percentage. The request for the Term Loan shall constitute a representation and
warranty by the Borrower that the conditions set forth in §12 have been satisfied as of the Closing
Date, provided that the making of such representation and warranty by the
Borrower shall not limit the right of any Lender not to lend if such conditions have not been met.
No portion of the Term Loan or other extension of credit shall be required to be made by any Lender
unless all of the conditions contained in §12 have been satisfied as of the Closing Date.
§2.2. The Term Notes. The Term Loan shall be evidenced by the Term Notes. A Term
Note shall be payable to the order of each Lender in an aggregate principal amount equal to such
Lender’s Commitment. The Borrower irrevocably authorizes each Lender to make or cause to be made
an appropriate notation on such Lender’s applicable Note Record reflecting the making of its
portion of the Term Loan or (as the case may be) the receipt of any payment thereon. The
outstanding amount of the Term Loan set forth on such applicable 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 Note Record shall not
limit or otherwise affect the rights and obligations of the Borrower hereunder or under any Term
Note to make payments of principal of or interest on any Term Note when due. Promptly following
termination of this Agreement, at the written request of the Borrower, each Lender shall return to
the Borrower any Notes issued to such Lender or, if unable to return such Note, issue a lost note
affidavit in form and substance reasonably satisfactory to the Borrower.
§2.3.
Interest on the Term Loan; Fees.
(a) (a) Each Base Rate Loan shall bear interest for the period commencing with the Drawdown Date
thereof up to and ending on the last day
of each Interest Period with respect thereto (unless earlier paid in accordance with §3.2)
including the date upon which the entire outstanding principal balance of such
Base Rate Loan is paid in full at a rate equal to the Base Rate plus the Applicable Base
Rate Margin.
(b) (b) Each Libor Rate Loan shall bear interest foron
the periodoutstanding principal amount thereof
commencing with the Drawdown Date thereof and ending on the last day of each Interest Period with
respect thereto (unless earlier paid in accordance with §3.2) , or, if later, the date upon which
such Libor Rate Loan is paid in full, at a rate per annum equal to the Libor Rate determined for
such Interest Period plus the Applicable Libor Margin.
(c)
(c) [Reserved.]
(d) (d) The Borrower unconditionally promises to pay interest on theeach Term Loan in arrears on each
Interest Payment Date with respect thereto, and when the principal of such Term Loan is due
(whether at maturity, by reason of acceleration or otherwise).
-33-
§2.4. Request for the Term Loan.
The following provisions shall apply to the initial request by the Borrower for the Term Loan:
(i) The Borrower shall submit a Completed Loan Request to the Agent. The
Completed Loan Request shall be irrevocable
and binding on the Borrower and shall obligate the Borrower to accept the Term Loan
requested from the Lenders on the Closing Date.
(ii) The Completed Loan Request shall specify: (1) the principal amount of the
Term Loan, (2) the Interest Period applicable to such Term Loan (or portions
thereof), and (3) the Type of Loan being requested, and certifying that, after
giving effect to such requested Term Loan, no Default or Event of Default will
exist under this Agreement or any other Loan Document and that, after giving effect
to the Term Loan, the Borrower is in compliance with the covenants set forth in §10
(which calculations required by such covenants shall be submitted with such
Completed Loan Request).
(iii) No Lender shall be obligated to fund any portion of the Term Loan
unless:
(a) a Completed Loan Request has been timely received by the Agent as
provided in subsection (i) above; and
(b) both before and after giving effect to the Term Loan to be made
pursuant to the Completed Loan Request, all of the conditions contained in
§12 shall have been satisfied as of the Closing Date.
§2.5. Conversion Options.
(a) The
Borrower may elect from time to time to convert any portion of
the outstanding Term Loan to another Type, provided that (i) subject to the further proviso
at the end of
outstanding Libor Rate Loan to a
Base Rate Loan or any outstanding Base Rate Loan to a Libor Rate Loan, provided that (i) with
respect to any such conversion of a Libor Rate Loan to a Base Rate Loan, the Borrower shall give
the Agent at least three (3) Libor Business Days’ prior written notice of such election, which
notice must be received by the Agent by 11:00 a.m. on any Libor Business Day, and (ii) subject to
the provisos in this §2.5(a) and subject to §2.5(b) and §2.5(d), with respect to any conversion of
a Base Rate Loan to a Libor Rate Loan (or a continuation of a Libor Rate Loan, as
-34-
(b) Any portion of the Term Loan of any
TypeSubject to the proviso at the end of this §2.5(b) and §2.5(d), any Libor Rate Loan may be
continued automatically as such upon the expiration of the Interest Period with respect thereto (i) in the case of Base
Rate Loans, automatically and (ii) in the case of Libor Rate Loansas
set forth in §2.5(c) or by compliance by the Borrower with the notice provisions contained in
§2.5(a)(iii); 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 a 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 Borrower shall notify the Agent
promptly when any such automatic conversion contemplated by this §2.5(b) is scheduled
to occur.
(c) InSubject to the provisions of §2.5(a), §2.5(b) and §2.5(d), in the event that the Borrower
does not notify the Agent of its election hereunder with respect to
any portionBase Rate Loan upon the
expiration of the Term Loan in accordance with the
terms hereofInterest Period or Libor Rate Loan, such portion of the Term Loan shall be
automatically converted to a Base(or continued as) a Libor Rate Loan having a 1-month Interest Period at
the end of the applicable Interest Period.
(d) The Borrower may not request or elect a Libor Rate Loan pursuant to §2.4, elect to convert
a Base Rate Loan to a Libor Rate Loan pursuant to §2.5(a) or elect to continue a Libor Rate Loan
pursuant to §2.5(b), and no Base Rate Loan shall be automatically converted to, and no Libor Rate
Loan shall be automatically continued as, a Libor Rate Loan, if,
after giving effect thereto, there
would be greater than fiveseven (57) Libor Rate Loans then outstanding. Any Loan Request or Conversion
Request for a Libor Rate Loan that would create greater than fiveseven (57) Libor Rate Loans outstanding
shall be deemed to be a Loan Request or Conversion Request for a Base Rate Loan. By way of
explanation of the foregoing, in the event that the Borrower wishes to convert or continue two or
more portions of the Term LoanLoans into one Libor Rate Loan on the same day and for identical Interest Periods, such Libor
Rate Loan shall constitute one single Libor Rate Loan for purposes of this clause (d).
(e) The Agent will promptly notify each Lender of any Conversion Request received pursuant to
§2.5(a) or continuation pursuant to §2.5(b) in accordance with its customary practices.
-35-
§2.6. [Reserved].
§2.7. [Reserved].
§2.8. Increase in Total Commitment. At any time (but at least 60 days prior to the Maturity
Date), the Borrower shall have the right, upon written notice to the Agent and satisfaction of the
Increase Conditions and without obtaining further consent of the Lenders, to cause the Total
Commitment to increase by an amount not at any time exceeding $50,000,000 (the “Increase”), in
which event Schedule 2 will be deemed to be amended to reflect the increased Commitment of
each Lender, if any, that has agreed in writing to an increase and to add any third party financial
institution that may have become a party to, and a “Lender” under, this Agreement in connection
with the Increase (and the Agent is hereby authorized to effect such amendment on behalf of the
Lenders and the Borrower, together with other conforming amendments); provided,
however, that it shall be a condition precedent to the effectiveness of the Increase that
the Increase Conditions shall have been satisfied. In the event that the Increase results in any
change to the Commitment Percentage of any Lender, then on the effective date of such Increase in
the Total Commitment (i) any new Lender, and any existing Lender whose Commitment has increased,
shall pay to the Agent such amounts as are necessary to fund its new or increased Commitment
Percentage of the Term Loan, (ii) the Agent will use the proceeds
thereof to pay to all Lenders whose Commitment Percentage is decreasing such amounts as
are necessary so that each such Lender’s participation in the existing Term Loan will be
equal to its adjusted Commitment Percentage, and (iiiand (ii) if the effective date of such Increase in the Total
Commitment occurs on a date other than the last day of
an Interest Period applicable to any outstanding Libor Rate Loan, the Borrower will be
responsible for Libor Breakage Costs and any other amounts payable pursuant to §4.8 on account of
the payments made pursuant to clause (ii) above. No Lender shall have any obligation to increase
its Commitment in connection with the Increase.
§2.9.
[Reserved.] .
§2.10 [Reserved]
§2.11 Certain Permitted Amendments.
(a) Loan Modification Offer. The Borrower may, by written notice to the Agent from time to
time make one or more offers (each, a “Loan Modification Offer”) to (i) all the Lenders or (ii) all
the Lenders of any Tranche, to make one or more Permitted Amendments pursuant to procedures
reasonably specified by the Agent and reasonably acceptable to the Borrower. Such notice shall set
forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which
such Permitted Amendment is requested to become effective (which shall not be less than 10 Business
Days after the date of such notice, unless otherwise agreed to by the Agent). Notwithstanding
anything to the contrary in §28, each Permitted Amendment shall only require the consent of the
Borrower, the Agent and those Lenders that accept the applicable Loan Modification Offer
-36-
(such
Lenders, the “Accepting Lenders”), and each Permitted Amendment shall become effective only with
respect to the Loans and Commitments of the Accepting Lenders. In connection with any Loan
Modification Offer that has been accepted by the Majority Lenders, the Borrower may, with the prior
written consent of the Agent, terminate the aggregate Commitments (or, in the case of a Loan
Modification Offer made to a single Tranche, the aggregate Commitments in respect of such Tranche)
of one or more of the Lenders that are not Accepting Lenders, and in connection therewith shall
repay in full all outstanding Loans (or, in the case of a Loan Modification Offer made to a single
Tranche, the outstanding Loans in respect of such Tranche), and accrued but unpaid interest and
fees (along with any amount owing pursuant to §4.8), at such time owing to such terminated Lender,
with such termination taking effect, and any related repayment being made, upon the effectiveness
of the Permitted Amendment. Additionally, to the extent the Borrower has terminated the
Commitments (or the Commitments in respect of any Tranche) of such Lenders, it may request any
other Eligible Assignee to provide a commitment to make loans on the terms set forth in such Loan
Modification Offer in an amount not to exceed the amount of the Commitments terminated pursuant to
the preceding sentence.
(b) Loan Modification Agreement. The Borrower and each Accepting Lender shall execute and
deliver to the Agent a Loan Modification Agreement and such other documentation as the Agent shall
reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and
conditions thereof, which Loan Modification Agreement shall be acceptable to the Agent, the
Borrower and each Accepting Lender. The Administrative Agent shall promptly notify each Lender as
to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees
that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed
amended to the extent (but only to the extent) necessary to reflect the
existence and terms of the Permitted Amendment evidenced thereby and only with respect to the
Loans and Commitments of the Accepting Lenders, including any amendments necessary to treat the
applicable Loans and/or Commitments of the Accepting Lenders as a new Tranche hereunder.
(c) Permitted Amendments. “Permitted Amendments” means any or all of the following: (i) an
extension of the Maturity Date applicable solely to the Loans and/or Commitments of the Accepting
Lenders, (ii) an increase in the interest rate solely with respect to the Loans and/or Commitments
of the Accepting Lenders, (iii) the inclusion of additional fees to be payable solely to the
Accepting Lenders in connection with the Permitted Amendment (including any upfront fees), (iv)
such conforming amendments to this Agreement and the other Loan Documents as shall be appropriate,
in the reasonable judgment of the Agent, to provide the rights and benefits of this Agreement and
other Loan Documents on a pari passu basis to each new Tranche resulting therefrom, and (v) such
other conforming amendments to this Agreement and the other Loan Documents as shall be appropriate,
in the reasonable judgment of the Agent, to give effect to the foregoing Permitted Amendments;
provided that the Agent shall be permitted to seek the approval of the Majority Lenders of any
proposed amendment pursuant to the foregoing clauses (iv) or (v) as the Agent, in its sole
discretion, deems appropriate.
-37-
(d) Miscellaneous. This §2.11 shall supersede any provision in §28 to the contrary.
§2.12 Reverse Dutch Auction Repurchases.
(a) The Borrower may, at any time and from time to time after the Closing Date, conduct
auctions as hereinafter described in order to purchase and retire Loans (each, an “Auction”) (each
such Auction to be managed exclusively by the Agent), and such repurchases of Loans will not be
deemed to be voluntary or mandatory payments or prepayments for purposes of §3.2, so long as the
following conditions are satisfied:
(i) each Auction shall be conducted in accordance with the procedures, terms
and conditions set forth in this §2.12 and Schedule 2.12;
(ii) no Default or Event of Default shall have occurred and be continuing at
the time of the offer to, or at the time of the purchase of, any Loans in
connection with any Auction or shall occur as a result of such purchase;
(iii) the minimum principal amount (calculated on the face amount thereof) of
all Loans that the Borrower offers to purchase in any such Auction shall be no less
than $5,000,000 (or integral multiples of $1,000,000 in excess thereof) (unless
another amount is agreed to by the Agent);
(iv) the aggregate principal amount (calculated on the face amount thereof) of
all Loans so purchased by the Borrower shall automatically be cancelled and retired
by the Borrower on the settlement date of the relevant purchase (and may not be
resold);
(v) no more than one Auction may be ongoing at any one time;
(vi) each Auction shall be open and offered to all Lenders of the relevant
Tranche and the relevant Type on a pro rata basis; and
(vii) at the time of each purchase of Loans through an Auction, the Borrower
shall have delivered to the Agent an officer’s certificate of an authorized officer
certifying as to compliance with this clause (a).
(b) Each Lender may (but shall have no obligation whatsoever to) participate in any Auction
conducted pursuant to this §2.12.
(c) The Borrower must terminate an Auction if it fails to satisfy one or more of the
conditions set forth in §2.12(a). If the Borrower commences any Auction and if at such time of
commencement the Borrower reasonably believes that all required conditions set forth in §2.12(a)
have been satisfied, then any failure to satisfy one or more of the conditions set forth above
shall not result in any Default or Event of Default hereunder, provided that the Auction is then
terminated. With respect to all purchases of Loans made by the Borrower pursuant to this §2.12,
(x) the Borrower shall pay on the settlement date of each such purchase all accrued and unpaid
interest (except to the extent otherwise set forth in the relevant offering documents), if any, on
the purchased Loans up to the settlement date of such purchase and (y) such purchases (and the
payments made by the Borrower and the cancellation of the purchased Loans, in each case in
connection therewith) shall not constitute voluntary payments or prepayments for purposes of §3.2 .
-38-
(d) The Agent and the Lenders hereby consent to the Auctions and the other transactions
contemplated by this §2.12 (provided that no Lender shall have any obligation whatsoever to
participate in any such Auctions) and hereby waive the requirements of any provision of this
Agreement (including, without limitation, §3.2 (it being understood and acknowledged that purchases
of the Loans by the Borrower contemplated by this §2.12 shall not constitute Investments by the
Borrower)).
(e) Each Lender participating in any Auction hereby acknowledges and agrees that in connection
with such Auction, (1) the Borrower may have, and later may come into possession of, information
regarding the Loans or the Borrower or its Subsidiaries that is not known to such Lender and that
may be material to a decision by such Lender to participate in such Auction (such information, the
“Excluded Information”), (2) such Lender has independently, without reliance on the Borrower, any
of its Subsidiaries, the Agent or any of their respective Affiliates, made its own analysis and
determination to participate in such Auction notwithstanding such Lender’s lack of knowledge of the
Excluded Information and (3) none of the Borrower, its Subsidiaries, the Agent or any of their
respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and
releases, to the extent permitted by law, any claims such Lender may have against the Borrower, its
Subsidiaries, the Agent, and their respective Affiliates, under applicable laws or otherwise, with
respect to the nondisclosure of the Excluded Information.
(f) The Borrower agrees to pay to Agent the Agent Auction Fee in connection with each Auction
no later than three (3) Business Days after the date the Return Bids submitted by Lenders in
connection therewith were due.
§3. REPAYMENT OF THE TERM LOAN.
§3.1. Maturity. The Borrower promises to pay on the applicable Maturity Date, and
there shall become absolutely due and payable on the applicable Maturity Date, all unpaid principal
of each of Term Loan A, Term Loan B, Term Loan C and Term Loan D 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.
§3.2. Optional Repayments of the Term Loan. The Borrower shall have the right, at its
election, to prepay the outstanding amount of each Term Loan, in whole or in part, at any time
without penalty or premium; provided that (i) any such voluntary prepayment shall be
applied first to outstanding amounts under Term Loan A, then to outstanding amounts under Term Loan
B, then to the outstanding amounts under Term Loan C and then to outstanding amounts under Term
Loan D and (ii) the outstanding amount of any Libor Rate Loans may not be prepaid on a date other
than the last day of an Interest Period unless the Borrower pays the Libor Breakage Costs for each
Libor Rate Loan so prepaid at the
-39-
time of
such prepayment. The Borrower shall give the Agent (with copies to the Agent for
each Lender), no
later than 10:00 a.m., Cleveland, Ohio time, at least two (2) Business Days’ prior written notice
of any prepayment pursuant to this §3.2 of any Base Rate Loans, and at least four (4) Business
Days’ notice of any proposed prepayment pursuant to this §3.2 of Libor Rate Loans, specifying the
proposed date of prepayment and the principal amount to be prepaid. Each such partial prepayment
of the Term Loan shall be in an amount equal to $1,000,000 or an integral multiple of $1,000,000 in
excess thereof or, if less, the then outstanding balance of any Tranche or the entire outstanding
balance of the Term Loan, as applicable, shall be accompanied by the payment of all charges, if
any, outstanding on the Term Loan 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 Base Rate Loans and then to the principal of Libor Rate Loans.
§4. CERTAIN GENERAL PROVISIONS.
§4.1. Funds for Payments.
(a) (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 Agent, for the respective accounts of the
Lenders or (as the case may be) the Agent, at the Agent’s Head Office, in each case in Dollars and
in immediately available funds. The Borrower shall make each payment of principal of and interest
on the Term Loan and of fees hereunder not later than 12:00 p.m. (Cleveland, Ohio time) on the due
date thereof.
(b) Any and all payments by or on account of any obligation of the Borrower hereunder or under
any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of
and without reduction or withholding for any Taxes. If, however, applicable Laws require the
Borrower or the Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in
accordance with such Laws as determined by the Borrower or the Agent, as the case may be, upon the
basis of the information and documentation to be delivered pursuant to subsection (e) below.
-40-
(c) If the Borrower or the Agent shall be required by the Code to withhold or deduct any
Taxes, including both United States Federal backup withholding and withholding taxes, from any
payment, then (A) the Agent shall withhold or make such deductions as are determined by the Agent
to be required based upon the information and documentation it has received pursuant to subsection
(e) below, (B) the Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or
deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower
shall be increased as necessary so that after any required withholding or the making of all
required deductions (including deductions applicable to additional sums payable under this Section)
the Agent or Lender, as the case may be, receives an amount equal to the sum it would have received
had no such withholding or deduction been made.
(d) Without limiting the provisions of subsection (b) above, the Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.
(e) Without limiting the provisions of subsection (b) or (d) above, the Borrower shall, and
does hereby, indemnify the Agent and each Lender and shall make payment in respect thereof within
15 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this §4.1) withheld or deducted by the Borrower or the Agent or paid by the Agent or
such Lender, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower
shall also, and does hereby, indemnify the Agent, and shall make payment in respect thereof within
10 days after demand therefor, for any amount which a Lender for any reason fails to pay
indefeasibly to the Agent as required by subsection (f) of this §4.1. A certificate as to the
amount of any such payment or liability delivered to the Borrower by a Lender (with a copy to the
Agent), or by the Agent on its own behalf or on behalf of Lender, shall be prima facie evidence
that such amounts are due and owing.
(f) Without limiting the provisions of subsection (a) or (b) above, each Lender shall, and
does hereby, indemnify the Borrower and the Agent, and shall make payment in respect thereof within
10 days after demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any
counsel for the Borrower or the Agent) incurred by or asserted against the Borrower or the Agent by
any Governmental Authority as a result of the failure by such Lender to deliver, or as a result of
the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such
Lender to the Borrower or the Agent pursuant to subsection (h) of this §4.1. Each Lender hereby
authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender
under this Agreement or any other Loan Document against any amount due to the Agent under this
clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement
of the Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all other Obligations.
-41-
(g) Upon request by the Borrower or the Agent, as the case may be, after any payment of Taxes
by the Borrower or by the Agent to a Governmental Authority as provided in this §4.1, the Borrower
shall deliver to the Agent or the Agent shall deliver to the Borrower, as the case may be, the
original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Agent, as the case may be.
(h) (i) Each Lender shall deliver to the Borrower and to the Agent, at the time or times
prescribed by applicable Laws or when reasonably requested by the Borrower or the Agent, such
properly completed and executed documentation prescribed by applicable Laws or by the taxing
authorities of any jurisdiction and such other reasonably requested information as will permit the
Borrower or the Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,
-42-
(A) any Lender that is a “United States person” within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Borrower and the
Agent executed originals of Internal Revenue Service Form W-9 or such
other documentation or information prescribed by applicable Laws or
reasonably requested by the Borrower or the Agent as will enable the
Borrower or the Agent, as the case may be, to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements; and
(B) each Foreign Lender that is entitled under the Code or any
applicable treaty to an exemption from or reduction of withholding tax
with respect to payments hereunder or under any other Loan Document shall
deliver to the Borrower and the Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
| (I) | executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, | ||
| (II) | executed originals of Internal Revenue Service Form W-8ECI, | ||
| (III) | executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation, | ||
| (IV) | in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN, or | ||
| (V) | executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Agent to determine the withholding or deduction required to be made. |
-43-
(C) If a payment made to a Lender under any Loan Document would be
subject to U.S. Federal withholding tax
imposed by FATCA if such Lender were to fail to comply with the
applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Borrower and the Agent, at the time or times prescribed in
law and at such time or times reasonably requested by the Borrower or the
Agent, such documentation prescribed by applicable law (including
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Borrower or the Agent as may be
necessary for the Borrower or the Agent to comply with its obligations
under FATCA, to determine that such Lender has or has not complied with
such Lender’s obligations under FATCA and, as necessary, to determine the
amount to deduct and without from such payment. Solely for purposes of
this §4.1(h)(iii), “FATCA” shall include any amendments made to FATCA
after the date of this Agreement.
(i) Each Lender shall promptly (A) notify the Borrower and the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take
such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Agent make
any withholding or deduction for taxes from amounts payable to such Lender.
(j) Unless required by applicable Laws, at no time shall the Agent have any obligation to file
for or otherwise pursue on behalf of a Lender or have any obligation to pay to any Lender, any
refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the Agent
or any Lender determines, in its sole discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses incurred by the Agent or such Lender, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the Agent
or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the Agent or such Lender in the
event the Agent or such Lender is required to repay such refund to such Governmental Authority.
This subsection shall not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems confidential) to the Borrower
or any other Person.
-44-
§4.2. Computations. All computations of interest on Libor Rate Loans and of other
fees to the extent applicable shall be based on a 360-day year and all computations of interest on
Base Rate Loans shall be based on a 365/366 day year, in each case 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 or record
attached to any other Note 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 Agent shall determine that adequate and
reasonable methods do not exist for ascertaining the Libor Rate that would otherwise determine the
rate of interest to be applicable to any Libor Rate Loan during any Interest Period, the 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 Conversion Request with respect
to Libor Rate Loans shall be automatically withdrawn and shall be deemed a request for Base Rate
Loans, (b) each Libor Rate Loan will automatically, on the last day of the then current Interest
Period applicable thereto, become a Base Rate Loan, and (c) the obligations of the Lenders to make
Libor Rate Loans shall be suspended, in each case unless and until the Agent determines that the
circumstances giving rise to such suspension no longer exist, whereupon the Agent shall so notify
the Borrower and the Lenders. , and at the Borrower’s option, such Base Rate Loans shall be
converted to Libor Rate Loans pursuant to a Conversion Request submitted by the Borrower in
accordance with §2.5.
§4.4. Illegality. Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or in the interpretation or application thereof shall
make it unlawful for any Lender to make or maintain Libor Rate Loans, such Lender shall forthwith
give notice of such circumstances to the Agent and the Borrower and thereupon (a) the obligation of
such Lender to make or continue Libor Rate Loans or convert Base Rate Loans to Libor Rate Loans
shall forthwith be suspended and (b) such Lender’s Commitment Percentage of Libor Rate Loans then
outstanding shall be converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Libor Rate Loans or within such earlier period as may be required by law,
all until such time as it is no longer unlawful for such Lender to make or maintain Libor Rate
Loans. , whereupon such Lender shall so notify the Agent and the Borrower promptly, and at the
Borrower’s option, such Base Rate Loans shall be converted to Libor Rate Loans pursuant to a
Conversion Request submitted by the Borrower in accordance with §2.5. The Borrower hereby agrees
promptly to pay the Agent for the account of such Lender, upon demand, any additional amounts
necessary to compensate such Lender for Libor Breakage Costs incurred by such Lender in making any
conversion required by this §4.4 prior to the last day of an Interest Period.
-45-
§4.5. Additional Costs, Etc. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or other regulatory
body or official charged with the administration or the interpretation thereof and requests,
directives, instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender or the Agent by any central bank or other fiscal, monetary
or other authority (whether or not having the force of law, but if not having the force of
law, then generally applied by the Lenders or the Agent with respect to similar loans),
shall:
If any Change in Law shall:
(a) (a)subject any Lender or the Agent
to any tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s
Commitment or the Loans (other than taxes based upon or measured by the income or profits of
such Lender or the Agent Indemnified Taxes or Other Taxes covered by §4.1), or
(b) (b)change the basis of taxation (except
for changes in taxes on income or profits other than with respect to (i) Excluded Taxes and (ii)
Indemnified Taxes or Other Taxes covered by §4.1) of payments to any Lender of the principal of or
the interest on the Term Loanany Loans or any other amounts payable to the Agent or any Lender under this
Agreement or the other Loan Documents, or
(c) (c)impose or increase or render applicable (other than to the extent specifically provided
for elsewhere in this Agreement) any special deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or letters of credit issued by, or
commitments of an office of any Lender, or
(d) (d)impose
on any Lender or the Agent any other conditions or requirements with respect to
this Agreement, the other Loan Documents, the Loans, such Lender’s Commitment, or any class of
loans or commitments of which any of the Loans or such Lender’s Commitment forms a part;
and the result of any of the foregoing is
-46-
(A) (i)to increase the cost to any Lender of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Lender’s
Commitment, or
(B) (ii)to reduce the amount of principal, interest or other amount
payable to such Lender or the Agent hereunder on account of such Lender’s
Commitment or any of the Loans, or
(C) (iii)to require such Lender or the Agent to make any payment or to
forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Lender
or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, promptly upon demand made by the Agent or such
Lender (such demand to be made promptly by the Agent or such Lender upon the making of any such
determination), at any time and from time to time and as often as the occasion therefor may arise,
pay to such Lender or the Agent such additional amounts as such Lender or the Agent shall determine
in good faith to be sufficient to compensate such Lender or the Agent for such additional cost,
reduction, payment or foregone interest or other sum, provided that such Lender or the Agent is
generally imposing similar charges on its other similarly situated borrowers. The Agent shall
provide the Borrower with a calculation, in reasonable detail, of such amounts in accordance with
its customary practices.
§4.6. Capital Adequacy. If any future law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law, but if not having the force of
law, then generally applied by the Lenders with respect to similar loans) or the
interpretation thereof by a court or governmental authority with
appropriate jurisdictionChange in Law affects the amount of capital required
or expected to be maintained by banks or bank holding companies and any Lender or the Agent
determines that the amount of capital required to be maintained by it is increased by or based upon
the existence of Loans made or deemed to be made pursuant hereto, then such Lender or the Agent may
notify the Borrower of such fact, and
the Borrower shall pay to such Lender or the Agent from time to time,
promptly upon demand made by
the Agent or such Lender (such demand to be made promptly by the Agent or such Lender upon the
making of any such determination), as an additional fee payable hereunder, such amount as such
Lender or the Agent shall determine reasonably and in good faith and certify in a notice to the
Borrower to be an amount that will adequately compensate such Lender in light of these
circumstances for its increased costs of maintaining such capital. Each Lender and the Agent shall
allocate such cost increases among its customers in good faith and on an equitable basis, and will
not charge the Borrower unless it is generally imposing a similar charge on its other similarly
situated borrowers. The Agent shall provide the Borrower with a calculation, in reasonable detail,
of such amounts in accordance with its customary practices.
-47-
§4.7. Certificate; Limitations. A certificate setting forth any additional amounts
payable pursuant to §§4.5 or 4.6 and a brief explanation of such amounts which are due, submitted
by any Lender or the Agent to the Borrower, shall be prima facie evidence that such amounts are due
and owing; provided, that none of the Agent or Lenders shall be entitled to claim any such amount
pursuant to §§4.5 or 4.6 if such Person fails to provide such notice to the Borrower within 180
days of the date Agent or such Lender becomes aware of the occurrence of the event giving rise to
the amount it claims as being owed. Notwithstanding anything to the contrary contained in this
Article 4, to the extent
reasonably possible, each Lender shall designate an alternate lending office in the
continental United States to make the Loans in order to reduce any liability of Borrower to
such Lender under §§4.4, 4.5 or 4.6 or to avoid the unavailability of a Libor Rate Loan, so
long as such designation is notif any
Lender requests compensation under §§4.5 or 4.6, or the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to §4.1, or if any Lender gives a notice pursuant to §4.4, such Lender shall use
reasonable efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender such designation or assignment (a) would eliminate
or reduce amounts payable pursuant to §§4.1, 4.5 or 4.6, as the case may be, in the future, or
eliminate the need for the notice pursuant to §4.4, as applicable, and (ii) in each case, would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
§4.8. Indemnity. In addition to the other provisions of this Agreement regarding such
matters, the Borrower agrees to indemnify the Agent and each Lender and to hold the Agent and each
Lender harmless from and against any loss, cost or expense (including loss
of anticipated profits) that the Agent or such Lender may
sustain or incur as a consequence of (a) a default by the Borrower in the payment of any principal
amount of or any interest on any Libor Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by the 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 or continuation of a Libor Rate Loan after the Borrower has
given thea Completed Loan Request for a Libor Rate Loan or aor Conversion Request
for a Libor Rate Loanthe same, and
(c) the making of any payment of a
Libor Rate Loan or the making of any conversion of any such Loan to a 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 Agent or a Lender to lenders of funds obtained by it in order to maintain any such Libor
Rate Loans.
§4.9.
Interest on Overdue Amounts; Late
Charge. Notwithstanding anything to
the contrary stated herein, upon the occurrence and during the continuance of an Event of Default, at the option of the Majority Lenders, to the extent permitted by applicable law,
the unpaid balance of all Obligations shall bear interest at the rate otherwise applicable
thereto plus 2%, compounded daily until such Event of Default is cured or waived to the
satisfaction of the Agent and the required Lenders. In addition, the Borrower shall pay a
late charge equal to five percent (5%) of any amount of interest charges on the Term Loan
which is not paid within ten (10) days of the date when
due. After Default.
-48-
(a) Overdue Amounts. Notwithstanding anything to the contrary stated herein, overdue
principal and (to the extent permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan Documents shall bear interest at
the rate otherwise applicable thereto plus 2%, compounded daily until such amount shall be paid in
full (after as well as before judgment).
(b) Amounts Not Overdue. Notwithstanding anything to the contrary stated herein, upon the
occurrence and during the continuance of an Event of Default, at the option of the Majority
Lenders, to the extent permitted by applicable law, the unpaid principal balance of all Obligations
not overdue shall bear interest at the rate otherwise applicable thereto plus 2% until such Event
of Default is cured or waived to the satisfaction of the Agent and the Majority Lenders.
§4.10. Right to Replace Lender
If (w) a Lender requests compensation or the Borrower is required to pay any additional
amounts pursuant to §§4.1(b), 4.5 or 4.6, (x) a Lender’s obligations with respect to Libor Rate
Loans are suspended pursuant to §4.4, (y) in connection with any proposed amendment, modification,
termination, waiver or consent which requires the approval of each Lender or each Lender directly
affected thereby, and with respect to which approvals from the Majority Lenders have been obtained,
a Lender that has not given, or been deemed to have given, its approval of such matter, or (z) a
Lender is a Defaulting Lender, then, so long as there does not then exist any Default or Event of
Default, the Borrower may demand that such Lender (the “Affected Lender”) assign its Commitment to
an Eligible Assignee designated by the Borrower and approved by the Agent (or designated by the
Agent and approved by the Borrower), and upon such demand the Affected Lender shall promptly assign
its Commitment to an Eligible Assignee subject to and in accordance with the provisions of §20.1
for a purchase price equal to the aggregate principal balance of the Loan then owing to the
Affected Lender, plus any accrued but unpaid interest thereon and accrued but unpaid fees owing to
the Affected Lender (or such lesser amount as may be agreed on by the Affected Lender and such
Eligible Assignee) and upon such assignment the Borrower shall pay the fee specified in §20.3.
Subject to the approval rights of the Agent, each of the Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of such Affected Lender under this §4.10.
§4.11. Defaulting Lenders.
-49-
4.11.1 Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable law:
(a) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in §28.
(b) Reallocation of Payments. A Defaulting Lender shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on account of the outstanding
Term Loan, interest, fees or otherwise, to the remaining
non-defaulting Lenders for application to, and reduction of, their respective
pro rata shares of all outstanding Loans. The Defaulting Lender hereby authorizes the Agent to
distribute such payments to the non-defaulting Lenders in proportion to their respective pro rata
shares of the outstanding Term Loans. If not previously satisfied directly by the Defaulting
Lender, a Defaulting Lender shall be deemed to have satisfied in full a delinquency when and if, as
a result of application of the assigned payments to the outstanding Term Loan of the nondelinquent
Lenders, the Lenders’ respective pro rata shares of the outstanding Term Loan have returned to
those in effect immediately prior to such delinquency and without giving effect to the nonpayment
causing such delinquency.
(c) Fees. That Defaulting Lender shall not be entitled to receive any fees
for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be
required to pay any such fee that otherwise would have been required to have been paid to that
Defaulting Lender).
4.11.2 Defaulting Lender Cure. If the Borrower and the Agent agree
in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a
Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date
specified in such notice and subject to any conditions set forth therein, that Lender will take
such other actions as the Agent may determine to be necessary to cause the Loans to be held on a
pro rata basis by the Lenders in accordance with their Commitment Percentages, whereupon that
Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.
§5. COLLATERAL
§5.1. Security Interests. The Obligations shall be secured by (i) a perfected
first-priority lien on, or security title and security interest to be held by the Agent for the
benefit of the Lenders in, the Collateral, and (ii) such additional collateral, if any, as the
Agent, for the benefit of the Lenders from time to time may accept as security for the Obligations.
The Obligations shall also be guaranteed pursuant to the terms of the Subsidiary Guaranties.
-50-
§5.2. Pledged Equity Properties; Pledged Distributions Properties. No Eligible
Borrowing Base Property shall be permitted to be a Pledged Distributions Property unless the
applicable Property Level Loan Documents prohibit such Eligible Borrowing Base Property from being
a Pledged Equity Property, in which event such Eligible Borrowing Base Property shall be permitted
to be a Pledged Distributions Property.
§5.3. Mortgage Collateral Properties.
(a) If at any time an Eligible Borrowing Base Property is no longer subject
to Property Level Loan Documents due to payment in full of the applicable Property Level Debt, the
Borrower, no later than the date next occurring by which the Borrower is required to deliver
aCertificate of Compliance pursuant to §8.4(e), shall notify the Agent of the same. If the Agent
shall so request, in the Agent’s reasonable discretion, the Borrower shall cause the Subsidiary
Guarantor that owns such Eligible Borrowing Base Property to deliver, no later than thirty (30)
days after the Agent’s request therefor (or such later date as approved by the Agent in its
reasonable discretion), the following items, each of which shall be in form and substance
reasonably satisfactory to the Agent: (i) a Security Deed, (ii) an Assignment of Leases and Rents,
(iii) an ALTA loan title insurance policy issued by an insurer reasonably acceptable to the Agent,
(iv) a legal opinion addressed to the Agent and the Lenders from Xxxxx Lovells LLP (and
state-specific local counsel as may be necessary to furnish a legal opinion respecting the
enforceability of the Security Deed and the Assignment of Leases and Rents), (v) properly completed
Uniform Commercial Code financing statements as required to perfect the security interests granted
to Agent pursuant to the Security Deed and the Assignment of Leases and Rents, (vi) copies of
Uniform Commercial Code search reports listing all effective financing statements filed against
such Subsidiary Guarantor, with copies of such financing statements, as well as copies of such tax,
litigation, judgment, bankruptcy, intellectual property and any other search reports the Agent may
reasonably request, and (vii) any other documents, instruments, agreements or information
reasonably requested by Agent in connection therewith (the items described in the foregoing clauses
(i) through (vii) collectively are referred to herein as the “Mortgage Documents”); provided,
however, if the repayment in full of the applicable Property Level Debt has occurred in connection
with the sale or other permanent disposition of the applicable Eligible Borrowing Base Property in
compliance with the terms and conditions of this Agreement or the refinancing of such Eligible
Borrowing Base Property with mortgage Indebtedness in compliance with the terms and conditions of
this Agreement, this §5.3(a) shall not apply.
(b) In satisfaction of the notice requirements under §5.3(a), the Borrower,
the Trust and the Subsidiary Guarantors hereby notify, and jointly and severally represent and
warrant to, the Agent and the Lenders that the only Eligible Borrowing Base Properties not subject
to Property Level Debt as of the Amendment No. 5 Effective Date are: (i) the Eligible Borrowing
Base Property known as Gateway Center, with an address of 811 and 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx, owned by FP Gateway
Center, LLC; and (ii) the Eligible Borrowing Base Property known as Xxxxx Xxxx Business Center,
with an address of 7100 Xxxxxxxx Xxxxx Road, Glenn Dale, Maryland, owned by Xxxxx Xxxx Business Center, LLC.
-51-
(c) (i) In connection with the release of any Collateral Property Mortgagor
as a Subsidiary Guarantor and its Mortgage Collateral Property from the Borrowing Base Pool
pursuant to §8.13(a)(ii) or (ii) concurrently with the incurrence of any Mortgage Indebtedness in
compliance with the terms and conditions of this Agreement on any Eligible Borrowing Base Property
that is a Mortgage Collateral Property (without the release of any guarantee by the related
Subsidiary Guarantor or such Eligible Borrowing Base Property from the Borrowing Base Pool), the
Agent, at the Borrower’s sole cost and expense, shall provide the Borrower with executed discharges
of the applicable Security Deed and Assignment of Leases and Rents and other customary
documentation as may be necessary or reasonably requested by the Borrower to release the Agent’s
liens and security interests in such Mortgage Collateral Property.
§6. RECOURSE OBLIGATIONS; JOINT AND SEVERAL LIABILITY. The Obligations are full
recourse obligations of the Borrower, and all of the respective assets and properties of the
Borrower shall be available for the payment in full in cash and performance of the Obligations.
The obligations of the Trust under the Trust Guaranty are full recourse obligations of the Trust,
and all of the respective assets and properties of the Trust shall be available for the payment in
full in cash and performance thereof. The obligations of the Subsidiary Guarantors under the
Subsidiary Guaranty are full recourse obligations of the Subsidiary Guarantors, and all of the
respective assets and properties of the Subsidiary Guarantors shall be available for the payment
and performance thereof. The obligations of the Unsecured Revolver Subsidiary Guarantors under
the Additional Subsidiary Guaranty are full recourse obligations of the Unsecured Revolver
Subsidiary Guarantors, and all of the respective assets and properties of the Unsecured Revolver
Subsidiary Guarantors shall be available for the payment and performance thereof. The
liability of the Borrower and each, each Subsidiary Guarantor
and each Unsecured Revolver Subsidiary Guarantor shall be joint and several for all
Obligations.
§7. REPRESENTATIONS AND WARRANTIES. The Borrower and the Trust, on
itstheir own behalf and on behalf of
itstheir respective Subsidiaries, represents and
warrants jointly and severally represent and warrant as of the Amendment No. 5
Effective Date to the Agent and the Lenders all of the statements contained in this §7.
§7.1. Authority, Etc.
(a) Organization: Good Standing.
-52-
(i) FPLP is a limited partnership duly organized, validly
existing and in good standing under the laws of its state of organization;
FPLP has all requisite limited partnership power to
own its properties and conduct its business as now conducted and as
presently contemplated; and FPLP is in good standing as a foreign entity
and is duly authorized to do business in the jurisdictions where the
Eligible Borrowing Base Properties owned by it are located and in each
other jurisdiction where such qualification is necessary except where a
failure to be so qualified would not have a materially
adverse effect on its business, operations, assets, condition (financial
or otherwise) or propertiesMaterial Adverse Effect.
Each Subsidiary Guarantor is a limited partnership, general partnership,
nominee trust or limited liability company, as the case may be, duly
organized, validly existing and in good standing under the laws of its
state of organization; each such Subsidiary Guarantor has all requisite
limited partnership, general partnership, trust, limited liability company
or corporate, as the case may be, power to own its respective properties
and conduct its respective business as now conducted and as presently
contemplated; and each such Subsidiary Guarantor is in good standing as a
foreign entity and is duly authorized to do business in the jurisdictions
where the Eligible Borrowing Base Properties owned by it are located and
in each other jurisdiction where such qualification is necessary except
where a failure to be so qualified in such other jurisdiction would not
have a materially adverse effect on the business,
operations, assets, condition (financial or otherwise) or properties of
such BorrowerMaterial Adverse Effect.
(ii) the Trust is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland;
each Subsidiary of the Trust is duly organized, validly existing and in
good standing as a corporation, nominee trust, limited liability company,
limited partnership or general partnership, as the case may be, under the
laws of the state of its organization; the Trust and each of its
Subsidiaries has all requisite corporate, trust, limited liability
company, limited partnership or general partnership, as the case may be,
power to own its respective properties and conduct its respective business
as now conducted and as presently contemplated; and the Trust is in good
standing as a foreign entity and is duly authorized to do business in the
jurisdictions where such qualification is necessary, except where a
failure to be so qualified in such other would not have a
materially adverse effect on the business, operations, assets, condition
(financial or otherwise) or properties of the Trust or any such
Subsidiaryjurisdiction would not have a Material
Adverse Effect.
-53-
(b) Capitalization. The outstanding equity of FPLP is comprised of a general
partner interest and limited partner interests, all of which have been duly issued and are
outstanding and fully paid and non-assessable and, as of the Amendment No. 5 Effective
Date, are owned and held of record by the Persons set forth on Schedule 7.1(b) attached hereto.
All of the issued and outstanding general partner interests of FPLP are owned and held of record by
the Trust. There are no outstanding securities or agreements exchangeable for or convertible into
or carrying any rights to acquire a general partner interest in FPLP. There are no outstanding
commitments, options, warrants, calls or other agreements (whether written or oral) binding on FPLP
or the Trust which require or could require FPLP or the Trust to sell, grant, transfer, assign,
mortgage, pledge or otherwise dispose of any general partner interest in FPLP. Except as set forth
in the Agreement of Limited Partnership of FPLP, no general partner interests of FPLP are subject
to any restrictions on transfer or any partner agreements, voting agreements, trust deeds,
irrevocable proxies; or any other similar agreements or interests (whether written or oral).
For so long as any Subsidiary Guarantor is a Subsidiary Guarantor hereunder,FPLP owns,
directly or indirectly, 100% (by number of votes or controlling interests) of the outstanding
voting interests in each Subsidiary Guarantor and of the
economic interests in each such Subsidiary Guarantor pursuant to which FPLP would receive,
directly or indirectly, 100% of the net proceeds of a sale or other disposition or liquidation of
the Eligible Borrowing Base Property owned by each such Subsidiary Guarantor. All of the
issued and outstanding equity interestsEquity Interests of
each Subsidiary Guarantor are owned and held of record by the Persons set forth on Schedule 7.1(b)
attached hereto, and all of such equity interestsEquity Interests
of each such Person organized as a corporation have been duly issued and are outstanding and
fully paid and non-assessable. There are no outstanding securities or agreements exchangeable for
or convertible into or carrying any rights to acquire any equity
interestsEquity Interests in any Subsidiary Guarantor. There are no
outstanding commitments, options, warrants, calls or other agreements (whether written or oral)
binding on any Subsidiary Guarantor which require or could require any Subsidiary Guarantor to
sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any equity
interest ofEquity Interest in such Subsidiary Guarantor
and(except with respect to one or more contracts for the
disposition of an Eligible Borrowing Base Property in connection with which no Default or Event of
Default shall have occurred both before and immediately after giving effect to such disposition
individually and after giving effect to all such dispositions), and, as of the Amendment No. 5
Effective Date, any such commitments, options, warrants, calls or other agreements relating to
FPLP are set forth on Schedule 7.1(b). Except as disclosed on Schedule 7.1(b) attached hereto, no
equity interestsEquity Interests of any Subsidiary Guarantor
are subject to any restrictions on transfer or any partner agreements, voting agreements, trust
deeds, irrevocable proxies; or any other similar agreements or interests (whether written or oral)
and any such restrictions or other agreements relating to FPLP are
assetas of the Amendment No. 5 Effective Date are set forth on Schedule
7.1(b). All of the Preferred Equity which exists as of the Amendment No. 5 Effective Date,
and each of the agreements or other documents entered into and/or setting forth the terms, rights
and restrictions applicable to any such Preferred Equity, are listed and described on
Schedule 7.1(b) attached hereto. All of the agreements and other documents requested by the
Agent relating to the Preferred Equity in effect on the Amendment No. 5 Effective Date
have been furnished to the Agent.
-54-
(c) Due Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower, any Subsidiary Guarantor or the Trust
is or is to become a party and the transactions contemplated hereby and thereby (i) are within the
authority of the Borrower, such Subsidiary Guarantor and the Trust, (ii) have been duly authorized
by all necessary proceedings on the part of the Borrower, such Subsidiary Guarantor or the Trust
and any general partner or manager thereof, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which the Borrower, such
Subsidiary Guarantor or the Trust is subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower, such Subsidiary Guarantor or the Trust, (iv) do not conflict
with any provision of the Organizational Documents of the Borrower, such Subsidiary
Guarantor or, the Trust or any general partner or manager
thereof, (v) do not contravene any provisions of, or constitute Default or Event of Default
hereunder or under any Property Level Loan Document, and (vi) will not cause a failure to comply
with any term, condition or provision of, any other agreement, instrument, judgment, order, decree,
permit, license or undertaking binding upon or applicable to the Borrower, such Subsidiary
Guarantor or the Trust or any of the Borrower’s, such Subsidiary Guarantor’s or the Trust’s
properties (except for any such failure to comply under any such other agreement, instrument,
judgment, order, decree, permit, license, or undertaking as would not materially and
adversely affect the business, operations, assets, condition (financial or otherwise) or properties
of the Trust, FPLP or any other member of the Potomac Group) or result in a
Material Adverse Effect or in the creation of any mortgage, pledge, security interest, lien,
encumbrance or charge upon any of the properties or assets of the Borrower, such Subsidiary
Guarantor or the Trust.
(d) Enforceability. Each of the Loan Documents to which the Borrower, any
Subsidiary Guarantor or the Trust is a party has been duly executed and delivered and constitutes
the legal, valid and binding obligations of the Borrower, such Subsidiary Guarantor and the Trust,
as the case may be, subject only to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditors’ rights.
§7.2. Governmental Approvals. The execution, delivery and performance by the
Borrower and the Trust of this Agreement and the other Loan Documents to which the Borrower
or the Trust is or is to become a party and the transactions contemplated hereby and thereby do not
require (i) the approval or consent of any governmental agency or authority other than those
already obtained and delivered to the Agent, or (ii) filing with any governmental agency or
authority, other than filings which will be made with the SEC when and as required by law or deemed
appropriate by the Trust.
§7.3. Title to Properties; Leases.
The Borrower, each Subsidiary Guarantor and the Trust each has good fee to all of its
respective properties, assets and rights of every name and nature purported to be owned by it,
including, without limitation, that:
(a) The Borrower and/or each Subsidiary Guarantor holds good and clear record and
marketable fee simple title to the Eligible Borrowing Base Properties and all assets or properties
relating thereto, subject to no Liens other than Permitted Liens.
-55-
(b) The Borrower, the Subsidiary Guarantors and the Trust will, as of the
ClosingAmendment No. 5 Effective Date, own all of the assets
as reflected in the financial statements of the Borrower, the Subsidiary Guarantors and the Trust
described in §7.4, or acquired since the date of such financial statements (except property and
assets sold or otherwise disposed of in the ordinary course of business since that date).
(c) EachSet forth on Schedule 7.3(c) attached hereto
is a list of each of the direct or indirect interests of the Borrower or any Subsidiary
Guarantor in any Partially-Owned Entity is set forth on Schedule 7.3(c) attached
hereto, including the type of entity in which the interest is held, the percentage interest owned
by the Borrower or such Subsidiary Guarantor in such entity, the capacity in which the Borrower or
such Subsidiary Guarantor holds the interest, and the Borrower’s or Subsidiary Guarantor’s
ownership interest therein. as of the Amendment No. 5 Effective Date. Such list
is complete and accurate in all material respects as of the date furnished and, as of the date of
any update thereto furnished by Borrower pursuant to §8.5(e), will be complete and accurate in all
material respects as of such date.
§7.4. Financial Statements. The Borrower has furnished to each of the
Lenders (i) the audited consolidated balance sheet of the Trust and
its Subsidiaries as of December 31, 2006, 2010, and the
related audited consolidated statements of income, changes in shareholder’s equity and cash flows
for the year then ended and (ii) (the “Initial Financials”). The
Borrower has also furnished or otherwise made available to each of the Lenders the unaudited
consolidated balance sheet of the Trust and its Subsidiaries as of the fiscal quarter
ended March 31, 2007, June 30, 2011, and the related unaudited consolidated
statements of income, changes in shareholder’s equity and cash flows for the
quarterthree consecutive fiscal quarters then ended (the
“InitialQuarterly Financials”). Such Initial Financials
and such Quarterly Financials have been prepared in accordance with GAAP and,
with respect to the annual audited statements the Initial Financials are
accompanied by an auditors’ report prepared without qualification by the Accountants. The Initial
Financials fairly present and the Quarterly Financials are
complete and correct in all material respects and fairly present, in accordance with GAAP
consistently applied throughout the periods to which they apply, the financial condition of the
Trust
and its Subsidiaries as at the close of business on the date thereof and the results of operations
for the fiscal year (or fiscal quarter, as applicable) then ended,
subject in the case of interim statements to normal and customary year-end
adjustments. There are no contingent liabilities of the Trust or any of its
Subsidiaries as of such date known to the officers of the Trust or any of its Subsidiaries not
disclosed in the Initial Financials or the Quarterly Financials.
§7.5 No Material Changes, Etc. Since the Financial Statement Date, there has
occurred no materially adverse change in the business, operations, assets, condition (financial or
otherwise) or properties of the Trust, or FPLP
or any other member of the Potomac Group. Since the Financial Statement Date and the
Closing Date (or such later date upon which a Real Estate Asset became part of the Borrowing Base
Pool), there has been no material adverse change to the Net Operating Income of any Real Estate
Asset that is part of the Borrowing Base Pool. , taken as a whole, the Potomac
Group.
-56-
§7.6. Franchises, Patents, Copyrights, Etc. The Borrower, the Trust and each of
their respective Subsidiaries possess all franchises, patents, copyrights, trademarks, trade names,
licenses and permits, and rights in respect of the foregoing, adequate for the conduct of their
respective businesses substantially as now conducted without known conflict with any rights of
others, except where the failure to so possess could not reasonably be expected to have a
material adverse effect on the business, operations, assets, condition (financial or
otherwise) or properties of the Trust, FPLP or any other member of the Potomac
GroupMaterial Adverse Effect. The Borrower, the Trust and each of their
respective Subsidiaries possess all material Permits relating to each of the Eligible Borrowing
Base Properties. FPLP is pre-approved as a landlord for the United States government by the General
Services Administration as part of the General Services Administration’s Advanced Acquisition
Program (the “AAP Qualification”).
§7.7 Litigation. Except as disclosed on Schedule 7.7, there are no
actions, suits, proceedings or investigations of any kind pending or, to the Borrower’s or the
Trust’s knowledge, threatened against the Borrower, the Trust or any of their respective
Subsidiaries before any court, tribunal or administrative agency or board that, if
adversely determined, could reasonably be expected to, either individually or in the
aggregate, materially adversely affect the business, operations, assets, condition
(financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac
Groupresult in a Material Adverse Effect, or materially impair the right of
the Trust, or FPLP or any other member
of, taken as a whole, the Potomac Group, to carry on its businesses
substantially as now conducted by it, or result in any substantial liability not fully covered by
insurance, or for which adequate reserves are not maintained, as reflected in the applicable
consolidated financial statements or SEC Filings of the Borrower and the Trust, or which question
the validity of this Agreement or any of the other Loan Documents, or any action taken or to be
taken pursuant hereto or thereto.
§7.8. No Materially Adverse Contracts, Etc. Neither the Borrower, the Trust nor
any of their respective Subsidiaries is subject to any charter, corporate, partnership or other
legal restriction, or any judgment, decree, order, rule or regulation that has or could reasonably
expected in the future to have a materially adverse effect on the business,
operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any
other member of the Potomac GroupMaterial Adverse Effect. None of the
Borrower, the Trust or any of their respective Subsidiaries is a party to any contract or agreement
that has had, or could reasonably be expected to have, any materially adverse effect
on the business, operations, assets, condition (financial or otherwise) or properties of the Trust,
FPLP or any other member of the Potomac Groupa Material Adverse Effect.
§7.9. Compliance With Other Instruments, Laws, Etc. Neither the Borrower, the
Trust nor any of their respective Subsidiaries is in violation of any provision of its partnership
agreement, charter or other Organizational Document, as the case may be, or any agreement or
instrument to which it may be subject or by which it or any of its properties may be bound
(including, without limitation, any Property Level Loan Document) or any decree, order, judgment,
statute, license, rule or regulation, in any of the foregoing cases in a manner that could
reasonably be expected to result, individually or in the aggregate, in the imposition
of substantial penalties or materially and adversely affect the business, operations, assets,
condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the
Potomac Groupa Material Adverse Effect.
-57-
§7.10. Tax Status. (i) Each of the Borrower, the Trust
and their respective Subsidiaries (a) has made or filed all
federal, and state and local
income and all other material tax returns, reports and declarations required
by any jurisdiction to which it is subject, (b) has paid all taxes and other
governmental assessments and charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by appropriate proceedings, and
(c) and has set aside on its books provisions reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such returns, reports or
declarations apply, and (ii) there are no unpaid taxes claimed to be due by the
taxing authority of any jurisdiction, and the respective officers of the Borrower and the Trust and
their respective Subsidiaries know of no basis for any such claim. b) has paid
all federal and state income and all other material taxes or other governmental assessments and
charges that are due and payable, except those being contested in
accordance with §8.9.
§7.11 No Event of Default. No Default or Event of Default has occurred and is
continuing.
§7.12. Investment Company Acts. None of the Borrower, the Trust or any of their
respective Subsidiaries is an “investment company”, or an “affiliated company” or a “principal
underwriter” of an “investment company”, as such terms are defined in the Investment Company Act of
1940.
§7.13. Name; Jurisdiction of Organization; Absence of UCC Financing Statements, Etc.
The exact legal name of the Borrower, the Subsidiary Guarantors and the Trust, and their respective
jurisdictions of organization, as of the Amendment No. 5 Effective
Date are set forth on Schedule 7.13 attached hereto. Except for Permitted Liens, there
is no effective financing statement, security agreement, chattel mortgage, real estate
mortgage, equipment lease, financing lease, option, encumbrance or other document filed or recorded
with any filing records, registry, or other public office, that purports to cover, affect or give
notice of any present or possible future lien or encumbrance on, or security interest in, any
Eligible Borrowing Base Property, any Mortgage Collateral Property, any Pledged Entity or
the Equity Interests of any Pledged Entity. Neither the Borrower, any Subsidiary Guarantor nor the
Trust has pledged or granted any lien on or security interest in or otherwise encumbered or
transferred any of their respective interests in the Borrower or any Subsidiary Guarantor, as
applicable (including in the case of the Trust, its interests in FPLP) , except in favor of the
Agent and Lenders in connection with this Agreement.
§7.14. Absence of Liens. The Borrower or a Subsidiary Guarantor is the owner of the
Eligible Borrowing Base Properties, free from any Lien, except for Permitted Liens. The
Borrower or a Subsidiary Guarantor is the owner of the Pledged Interests free from any Lien, except
for Permitted Liens.
-58-
§7.15. Certain Transactions. Except as set forth on Schedule 7.15, none of
the officers, partners, directors, or employees of the Trust, the Borrower or any of their
Subsidiaries is presently a party to any transaction with the Borrower, the Trust or any of their
respective Subsidiaries (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or otherwise requiring payments to or
from any officer, partner, director or such employee or, to the knowledge of the Borrower or the
Trust, any corporation, partnership, trust or other entity in which any officer, partner, director,
or any such employee or natural Person related to such officer, partner, director or employee or
other Person in which such officer, partner, director or employee has a direct or indirect
beneficial interest has a substantial interest or is an officer, director, trustee or partner.
§7.16. Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans. Except
as disclosed in the SEC Filings or on Schedule 7.16, none of the Borrower, the Trust nor
any ERISA Affiliate (i) maintains or contributes to, or in the prior six years has
maintained or contributed to, any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan. , Multiemployer Plan or Guaranteed Pension Plan, (ii)
has any accrued unfunded or underfunded liabilities with respect to any Employee Benefit Plan
(other than with respect to any employee welfare benefit plan within the meaning of §3(l) or
§3(2)(B) of ERISA or any plan that is described in §201(2) or §201(7) of ERISA), Guaranteed Pension
Plan or Multiemployer Plan or are subject to any condition under any Multiemployer Plan that has or
with the passage of time may create a withdrawal liability, or (iii) has failed to operate each
Employee Benefit Plan maintained by the Borrower, the Trust or any of their respective ERISA Affiliates in compliance in all
material respects with the provisions of ERISA and, to the extent applicable, the Code, including
but not limited to the provisions thereunder respecting prohibited transactions. With respect to
any Employee Benefit Plan that is an employee welfare benefit plan within the meaning of §3(l) or
§3(2)(B) of ERISA or any plan that is described in §201(2) or §201(7) of ERISA, none of the
Borrower, the Trust nor any ERISA Affiliate has any accrued liability in excess of $5,000,000 that
was not incurred in the ordinary course or any accrued liability in excess of $10,000,000.
§7.17. Regulations U and X. No portion of any Loan is to be used, and
no portion of any Letter of Credit is to be obtained, for the purpose of purchasing
or carrying any “margin security” or “margin stock” as such terms are used in Regulations U and X
of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
§7.18. Environmental Compliance. The Borrower has, within the six (6)
months prior to the Closing Date, caused Phase I and other environmental assessments
or similar assessments (collectively, the “Environmental Reports”) to be conducted as the
Borrower has determined appropriate in its commercially reasonable judgment to investigate the
past and present environmental condition and usage of the Real Estate Assets, and, to the
extent requested by the Agent, true and complete copies of
whichthe same have been delivered to the Agent. To the
Borrower’s knowledge, except as otherwise expressly specified in the Environmental Reports, the
Borrower makes the following representations and warranties:
-59-
(a) None of the Borrower, its Subsidiaries, the Trust or any operator of the Real
Estate Assets or any portion thereof, or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the Resource Conservation
and Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 as amended (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986 (“XXXX”),
the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any
state or local statute, regulation, ordinance, order or decree relating to health, safety or the
environment (hereinafter “Environmental Laws”), which violation or alleged violation has, or its
remediation would have, by itself or when aggregated with all such other violations or alleged
violations, a material adverse effect on the business, operations, assets, condition
(financial or otherwise), properties or prospects of the Trust, FPLP or any other member of the
Potomac GroupMaterial Adverse Effect, or constitutes a Disqualifying
Environmental Event with respect to any of the Eligible Borrowing Base Properties.
(b) None of the Borrower, the Trust or any of their respective Subsidiaries has
received written notice from any third party, including, without limitation, any federal, state or
local governmental authority, (i) that it has been identified by the United States Environmental
Protection Agency (“EPA) as a potentially
responsible party under CERCLA with respect to a site listed on the National Priorities List, 40
C.F.R. Part 000 Xxxxxxxx X (1986), (ii) that any hazardous waste, as defined by 42 U.S.C. §
9601(5), any hazardous substances as defined by 42 U.S.C. § 9601(14), any pollutant or contaminant
as defined by 42 U.S.C. §9601(33) or any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws (“Hazardous Substances”) which it has
generated, transported or disposed of have been found at any site at which a federal, state or
local agency or other third party has conducted or has ordered that the Borrower, the Trust or any
of their respective Subsidiaries conduct a remedial investigation, removal or other response action
pursuant to any Environmental Law, or (iii) that it is or shall be a named party to any claim,
action, cause of action, complaint, or legal or administrative proceeding (in each case, contingent
or otherwise) arising out of any third party’s incurrence of costs, expenses, losses or damages of
any kind whatsoever in connection with the release of Hazardous Substances, which event described
in any such notice would have a material adverse effect on the business, operations,
assets, condition (financial or otherwise), properties or prospects of the Trust, FPLP or any other
member of the Potomac GroupMaterial Adverse Effect, or constitutes a
Disqualifying Environmental Event with respect to any of the Eligible Borrowing Base Properties.
-60-
(c) (i) No portion of the Real Estate Assets has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with applicable Environmental
Laws; and no underground tank or other underground storage receptacle for Hazardous Substances is
located on any portion of any Real Estate Assets except in accordance with applicable Environmental
Laws, (ii) in the course of any activities conducted by the Borrower, the Trust, their respective
Subsidiaries or the operators of their respective properties or any ground or space tenants on any
Real Estate Asset, no Hazardous Substances have been generated or are being used on such Real
Estate Asset except in accordance with applicable Environmental Laws, (iii) there has been no
present or past releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, disposing or dumping (a “Release”) or threatened Release of Hazardous
Substances on, upon, into or from the Real Estate Assets in violation of applicable Environmental
Laws, (iv) there have been no Releases in violation of applicable Environmental Laws upon, from or
into any real property in the vicinity of any of the Real Estate Assets which, through soil or
groundwater contamination, may have come to be located on such Real Estate Asset, and (v) to the
best of Borrower’s Knowledgeknowledge, any Hazardous
Substances that have been generated on any of the Real Estate Assets during ownership thereof by
the Borrower, the Trust, their respective Subsidiaries or the operations of their respective
properties have been transported off-site only in compliance with all applicable Environmental
Laws; to the extent, in each case, any of whichthe
events described in clauses (i) through (v) above would have a material adverse
effect on the business, operations, assets, condition (financial or otherwise), properties or
prospects of the Trust, FPLP or any other member of the Potomac GroupMaterial
Adverse Effect, or constitutes a Disqualifying Environmental Event with respect to any of the
Eligible Borrowing Base Properties.
(d) None of the Borrower, the Trust or any of the Real Estate Assets is subject to any
applicable Environmental Law requiring the performance of Hazardous Substances site assessments, or
the removal or remediation of Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an environmental disclosure document or
statement, by virtue of the transactions set forth herein and contemplated hereby, or as a
condition to the effectiveness of any other transactions contemplated hereby.
§7.19. Subsidiaries. Schedule 7.19 sets forth, as of the
ClosingAmendment No. 5 Effective Date, all of the respective
Subsidiaries of FPLP, each Subsidiary Guarantor and the Trust,
together with the exact legal name of each of such entities (including the Trust) and, in the
case of the Trust, the Borrower and each Guarantor, the tax identification number of each of
such entities (including the Trust).
§7.20. Loan DocumentsDisclosure. All of the
representations and warranties made by or on behalf of the Borrower and the
Trust, the Trust, and their respective Subsidiaries made
in this Agreement and in the other Loan Documents or
any documentdocuments or
instrumentinstruments delivered by or on behalf of the
Borrower, the Trust and their respective Subsidiaries to the Agent or the Lenders pursuant to
or in connection with any of such Loan Documents are true and correct in all material respects
and do not include any untrue statement of a material fact or omit to state
a as of the date furnished (except to the extent that
such representations and warranties relate expressly to an earlier date, in
which case, the same were true and correct in all material respects as of such earlier date). No
report, financial statement, certificate or other information furnished in writing (which for the
purposes hereof shall include all materials delivered
-61-
electronically or by email) by or on behalf
of any Borrower to the Agent or any Lender in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in
each case, as modified or supplemented by other information so furnished) contains any material
misstatement of fact or, when taken together with all other information furnished, omits to state
any material fact required to be stated or necessary to make
such representations and warranties the statements therein, in the
light of the circumstances under which they were made, not materially misleading; provided
that, with respect to projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be reasonable at the time
prepared (it being understood that the projected financial information is not to be viewed as facts
or guaranties of future performance, that actual results may vary materially from the projected
financial information and that the Borrower and the Trust make no representation that the projected
financial information will in fact be realized).
§7.21. REIT Status. The Trust has not taken any action that would prevent it from
maintaining its qualification as a REIT for its tax years ending December 31,
2003, December 31, 2004, December 31, 2005
orthrough December 31, 2006,
2010, or from maintaining such qualification at all times during the term of this Agreement.
§7.22. Anti-Terrorism Regulations. None of the Borrower, the Trust
or any of their respective Subsidiaries: (i) is a person
whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or who
engages in any dealings or transactions prohibited by Section 2 of such executive order, (ii) is a
person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC
and available at xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxx.xxxxx, or as otherwise published from
time to time, or is subject to the limitations or prohibitions under any other OFAC regulation or
executive order; (iii) is (A) an agency of the government of a country, (B) an organization
controlled by a country, or (C) a person resident in a country that is subject to a sanctions
program identified on the list maintained by OFAC and available at
xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxx.xxxxx, or as otherwise published from time to time, as
such program may be applicable to such country, agency, organization or person; or (iv) derives any
of its material assets or operating income from investments in or transactions with any such
agency, organization or person. None of the proceeds from any Loan will knowingly be used to
finance any operations, investments or activities in, or make any payments to, any such country,
agency, organization, or person.
-62-
§8. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE TRUST. The Borrower and
the Trust, on itstheir own behalf and on behalf of
itstheir respective Subsidiaries, covenants and
agreesjointly and severally covenant and agree that:
§8.1. Punctual Payment. The Borrower will duly and punctually pay or cause to be
paid the principal and interest on the Loans and all interest, fees, charges and other amounts and
Obligations provided for in this Agreement and the other Loan Documents, all in accordance with the
terms of this Agreement, the Notes and the other Loan Documents.
-63-
§8.2. Maintenance of Office; Jurisdiction of Organization,
Etc.. Each of the Borrower, the Subsidiary Guarantors and the
Trust will maintain its chief executive office in Bethesda, Maryland, or at such other place in the
United States of America as each of them shall designate by written notice to the Agent to be
delivered at least thirty (30) days (or such shorter period as approved by the Agent) prior
to any change of chief executive office, where, subject to §21, notices, presentations and demands
to or upon the Borrower, the Subsidiary Guarantors and the Trust in respect of the Loan Documents
may be given or made. Neither Not later than the time required
for delivery to the Agent of the financial statements referred to in subsections (a) and (b) of
§8.4, the Borrower, the Subsidiary Guarantors and the Trust shall provide the Agent with written
notice of any changes in name, tax identification number, address, jurisdiction of organization or
form of organization of the Borrower, any Subsidiary Guarantor or the Trust will
change its jurisdiction of organization, name or corporate structure without giving the Agent at
least thirty (30) days prior written notice of such change, and, in the case of a change in
corporate structure, without the prior written consent of the Agent, which consent may not be
unreasonably withheld. provided that, nothing in this §8.2 shall limit the
covenants and obligations of the Borrower, the Subsidiary Guarantors and the Trust set forth in
§8.20.
§8.3. Records and Accounts. Each of the Borrower, the Subsidiary Guarantors and
the Trust will (a) keep, and cause each of its Subsidiaries to keep, true and accurate records and
books of account in which full, true and correct entries will be made in accordance with GAAP and
(b) maintain adequate accounts and reserves as the Borrower and the Trust shall determine in
their good faith business judgment and, in the case of such reserves, in accordance with GAAP,
for all taxes (including income taxes), contingencies, depreciation and amortization of its
properties and the properties of its Subsidiaries.
§8.4. Financial Statements, Certificates and Information. The Borrower and the
Trust will deliver to the Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the
end of each fiscal year of the Trust, the audited consolidated balance sheet of the Trust and its
Subsidiaries at the end of such year, and the related audited consolidated statements of income,
changes in shareholder’s equity and cash flows for the year then ended, in each case, setting forth
in comparative form the figures as of the end of and for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with GAAP (which may be provided by
inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the
Agent), and, in each case, accompanied by an auditor’s report prepared without qualification by the
Accountants (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis);
together with (i) a certification by the principal financial or
accounting officer of the Borrower and the Trust that the information contained in such financial
statements is complete and correct in all material respects and fairly presents, in
accordance with GAAP consistently applied throughout the period to which it applies, the
financial position of the Trust and its Subsidiaries on the date thereof (which may be provided by
inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the
Agent) and (ii) a written statement from such Accountants to the effect that they
have read a copy of this Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event of Default under §10 or
otherwise under the provisions of this Agreement relating to the financial condition of the Trust
or any of its Subsidiaries, or of any facts or circumstances that would cause the Trust not to
continue to qualify as a REIT for federal income tax purposes, or, if such Accountants shall have
obtained knowledge of any then existing Default, Event of Default or such facts or circumstances,
they shall make disclosure thereof in such statement;
-64-
(b) as soon as practicable, but in any event not later than forty-five (45) days after
the end of each of its March 31, June 30 and September 30 fiscal quarters, copies of the unaudited
consolidated balance sheet of the Trust and its Subsidiaries, as at the end of such quarter, and
the related unaudited consolidated statements of income, changes in shareholders’ equity and cash
flows for the portion of the Trust’s fiscal year
then elapsed, all in reasonable detail and prepared in accordance with GAAP (which may be provided
by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the
Agent), together with a certification by the principal financial or accounting officer of the
Borrower and the Trust that the information contained in such financial statements is complete
and correct in all material respects and fairly presents, in accordance with GAAP
consistently applied throughout the period to which it applies, the financial position of the
Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Form 10-Q
of the Trust filed with the SEC for such period and delivered to the Agent) (subject to normal
year-end adjustments none of which shall be materially adverse and
the absence of footnotes) (and the Borrower also shall deliver the foregoing for FPLP on a
consolidated basis);
(c) as soon as practicable, but in any event not later than ninety (90) days after the
end of each of its fiscal years, a rent roll and operating statement in respect of each Eligible
Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as
true and correct;
(d) as soon as practicable, but in any event not later than forty-five (45) days after
the end of each of the fiscal quarters of the Borrower, a rent roll and operating statement in
respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting
officer of the Borrower as true and correct;
(e) simultaneously with the delivery of the financial statements referred to in
subsections (a) and (b) above, a Certificate of Compliance in the form of Exhibit C hereto
signed by the chief financial or accounting officer of the Borrower, and setting forth in
reasonable detail computations evidencing compliance with the covenants contained in §10;
(f) promptly as they become available, a copy of each report submitted to the Borrower,
the Trust or any of their respective subsidiaries by the Accountants in connection with each annual
audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants or in
connection with any interim audit thereof pertaining to any phase of the business of the Borrower,
the Trust or any such Subsidiary;
-65-
(g) contemporaneously with (or promptly after) the filing or mailing thereof, copies of
all material of a financial nature sent to the holders of any Indebtedness of the Borrower or any
Subsidiary Guarantor for borrowed money (other than the Loans) for
borrowed money, to the extent that the information or disclosure contained in such material
refers to or could reasonably be expected to have a material adverse effect on the
business, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP
or any other member of the Potomac GroupMaterial Adverse Effect;
(h) contemporaneously with (or promptly after) the filing or mailing thereof,
copies of all material of a financial nature filed with the SEC or sent to the stockholders of the
Trust;
(i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as
practicable, but in any event not later than ninety (90) days after the end of each fiscal year of
the Trust, copies of the Form 10-K statement filed by the Trust with the SEC for such fiscal year,
and as soon as practicable, but in any event not later than fifty (50) days after the end of each
fiscal quarter of the Trust copies of the Form 10-Q statement filed by the Trust with the SEC for
such fiscal quarter, provided that, in either case, if the SEC has granted an extension for
the filing of such statements, the Trust shall deliver such statements to the Agent within ten (10)
days after the filing thereof with the SEC;
(j) in the case of the Borrower and the Trust, as soon as practicable, but in any
event not later than thirty (30) days prior toafter the end of
each of their respective fiscal years, a business plan for the next fiscal year (including
pro forma projections for such period);
(k) if requested by the Agent, a certification by the chief financial or accounting
officer of the Borrower of the state and federal taxable income of the Trust and its Subsidiaries
as of the end of any applicable fiscal year; and
(l) from time to time such other financial data and other information about the
Borrower, the Trust, the Subsidiary Guarantor, the Unsecured Revolver Subsidiary
Guarantors, and their respective Subsidiaries, the Real
Estate Assets (including the Eligible Borrowing Base Properties), the Pledged Interests and the
Partially-Owned Entities as the Agent or any Lender (through the Agent) may reasonably request.
Without limitation of the foregoing, at the request of the Agent, the Borrower will deliver to the
Agent information relating to (i) the determination of the existence or absence of a Disqualifying
Environmental Event or a Disqualifying Structural Event, (ii) title to any Eligible Borrowing Base
Property, (iii) the Property Level Loan Documents and Property Level Debt, and (iv) insurance
coverage.
§8.5. Notices.
-66-
(a) Defaults. The Borrower will, promptly after obtaining knowledge of the
same, notify the Agent in writing (with copies to the Agent for each
Lender) of the occurrence of (i) any Default or Event of
Default, and (ii) any default or event of default under any
Property Level Loan Document and (iii) any dispute under any of the Organizational
Documents of a Subsidiary Guarantor or relating to the Pledged Interests. If any
Person shall give any notice or take any other action in respect of (x) a claimed Default (whether
or not constituting an Event of Default) under this Agreement or (y) a claimed failure by the
Borrower, anythe Subsidiary Guarantor
or Guarantors, the Trust or any of their respective Subsidiaries, as
applicable, to comply with any term, condition or provision of or under any note, evidence of
Indebtedness, indenture or other obligation in excess of $20,000,000, individually or in the
aggregate, in respect of Indebtedness that is Without Recourse and in excess of
$2,000,000, 5,000,000, individually or in the aggregate, in
respect of Indebtedness that is Recourse, to which or with respect to which any of them is a party
or obligor, whether as principal or surety, and such failure to comply would permit the holder of
such note or obligation or other evidence of Indebtedness to accelerate the maturity thereof, the
Borrower shall forthwith give written notice thereof to the Agent and each of the Lenders,
describing the notice or action and the nature of the claimed failure to comply.
(b) Environmental Events. The Borrower will promptly give notice in writing to
the Agent (with copies to the Agent for each Lender) (i) upon
Borrower’s, the Subsidiary Guarantor’s or the Trust’s obtaining knowledge of any material violation
(as determined by the Borrower, the Subsidiary Guarantor or the Trust in the exercise of its
reasonable discretion) of any Environmental Law regarding any Real Estate Asset or Borrower’s, the
Subsidiary Guarantor’s or the Trust’s operations, (ii) upon Borrower’s, the Subsidiary Guarantor’s
or the Trust’s obtaining knowledge of any known Release of any Hazardous Substance at, from, or
into any Real Estate Asset which it reports in writing or is reportable by it in writing to any
governmental authority and which is material in amount or nature or which could
materially affect the value of such Real Estate Assetcould reasonably be
expected to be a Disqualifying Environmental Event, with respect to any of the Eligible Borrowing
Base Properties or which could reasonably be expected to have a Material Adverse Effect, (iii)
upon Borrower’s, the Subsidiary Guarantor’s or the Trust’s receipt of any notice of material
violation of any Environmental Laws or of any material Release of Hazardous Substances in violation
of any Environmental Laws or any matter that maycould reasonably
be expected to be a Disqualifying Environmental Event with respect to any of the Eligible
Borrowing Base Properties, including a notice or claim of liability or potential responsibility
from any third party (including without limitation any federal, state or local governmental
officials) and including notice of any formal inquiry, proceeding, demand, investigation or other
action with regard to (A) Borrower’s or the Trust’s or any other Person’s operation of
any Real Estate Assetsuch Eligible Borrowing Base Property,
(B) contamination on, from or into any Real Estate AssetEligible
Borrowing Base Property, or (C) investigation or remediation of off-site locations at which
Borrower, the Subsidiary Guarantor or the Trust or any of its predecessors are alleged to have
directly or indirectly disposed of Hazardous Substances, or (iv) upon Borrower’s, the Subsidiary
Guarantor’s or the Trust’s obtaining knowledge that any expense or loss has been incurred by such
governmental authority in connection with the assessment, containment, removal or remediation of
any Hazardous Substances with respect to which Borrower, the Subsidiary Guarantor or the Trust or
any Subsidiary or Partially-Owned Entity may be liable or for which a lien may be imposed
on any Real Estate Asset.
-67-
(c) Notification of Claims against Eligible Borrowing Base Properties. The
Borrower will, and will cause each Subsidiary to, promptly upon becoming aware thereof, notify the
Agent in writing (with copies to the Agent for each Lender) of any setoff, claims, withholdings or
other defenses to which any of the Eligible Borrowing Base Properties are subject, which (i) could
reasonably be expected to (x) have a
material adverse effect on (x) the business, operations, assets, condition (financial
or otherwise), properties or prospects of the Trust, FPLP or any other member of the Potomac Group,
or (y) Material Adverse Effect, or (y) have a materially adverse effect on
the value of any such Eligible Borrowing Base Property, or (ii) with respect to such Eligible
Borrowing Base Property, constitute a Disqualifying Environmental Event, a Disqualifying Structural
Event or a Lien subject to the bonding or insurance requirement of §9.2(vii).
(d) Notice of Litigation and Judgments. The Borrower and the Trust will
give notice to the Agent in writing (with copies to the Agent for each Lender) within three (3)
days of becoming aware of any litigation or proceedings threatened in writing or any pending
litigation and proceedings an adverse determination in which could materially
adversely affect FPLP, the Trust, any member of the Potomac Group, result in a
Material Adverse Effect, or which could have a materially adverse effect on any of the Pledged
Interests or any Eligible Borrowing Base Property or to which the Borrower, a Subsidiary Guarantor,
the Trust or any of their respective Subsidiaries is or is to become a party involving a claim
against the Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries
that could reasonably be expected to have a Material Adverse Effect or to have a materially
adverse effect on the respective business, operations, assets, condition (financial
or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group, the
Collateral or on the value or operation of an Eligible Borrowing Base Property and
stating the nature and status of such litigation or proceedings. The Borrower and the
Trust will give notice to the Agent and each of the Lenders, in writing, in form and detail
reasonably satisfactory to the Agent, within three (3) days of any judgment not covered by
insurance, final or otherwise, against the Borrower, a Subsidiary Guarantor, the Trust or any of
such Subsidiaries in an amount in excess of $1,000,000.
5,000,000.
(e) Schedule 7.3(c). Not later than the time required for delivery to
the Agent of the financial statements referred to in subsections (a) and (b) of §8.4, the Borrower
and the Trust shall provide the Agent in writing with any updates or changes to the information set
forth on Schedule 7.3(c) attached hereto, and such Schedule 7.3(c) shall be deemed amended
thereby.
§8.6. Existence of Borrower; Maintenance of Properties. The Borrower, the
Subsidiary Guarantors and the Trust will do or cause to be done all things necessary to, and shall,
preserve and keep in full force and effect its respective existence in its jurisdiction of
organization and will do or cause to be done all things necessary to preserve and keep in full
force all of its respective rights and franchises and, except as could not reasonably be
expected to have a Material Adverse Effect, those of its respective Subsidiaries which may be
necessary to properly and advantageously conduct the businesses conducted by it. The Borrower and
each of the Subsidiary Guarantors (a) will cause all necessary repairs,
-68-
renewals, replacements,
betterments and improvements to be made to all Real Estate Assets owned or controlled by it, all as
in the judgment of the Borrower or such Subsidiary Guarantor may be necessary so that the business
carried
on in connection therewith may be properly and advantageously conducted at all times, subject to
the terms of the applicable Leases and partnership agreements or other entity charter documents,
and in any event, will keep all of the Real Estate Assets (for so long as such Real Estate Assets
are owned by the Borrower, a Subsidiary Guarantor or any of their respective Subsidiaries) in a
condition consistent with the Real Estate Assets currently owned or controlled by the
Borrower, the Subsidiary Guarantors or their respective or its
Subsidiaries, (b) will cause all of its other properties and those of
itstheir respective Subsidiaries (to the extent controlled by
the Borrower or the Subsidiary Guarantor) used or useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, ordinary wear and
tear and casualty and condemnation events excepted, (c) will not permit the Trust to directly
own or lease any Real Estate Asset, and (d) will, and will cause each of their respective
Subsidiaries to continue to engage primarily in the businesses now conducted by them and in related
businesses, all of the foregoing to the extent necessary to comply with the other terms and
conditions set forth in this Agreement, and in the case of clauses (a) and (b) above to the extent,
in the good faith judgment of the Borrower, necessary to properly and advantageously conduct the
businesses being conducted by it. Without limitation of the foregoing, the business in which the
Borrower and its Subsidiaries are engaged will be limited to the acquisition, development,
ownership and operation of income-producing office, industrial and flex properties in the
Mid-Atlantic United States and any business activities reasonably related thereto and
Investments permitted under §9.3 incidental thereto.
§8.7. Existence of the Trust; Maintenance of REIT Status of the Trust; Maintenance of
Properties. The Trust will do or cause to be done all things necessary to preserve and keep in
full force and effect the Trust’s existence as a Maryland corporation. The Trust will at all times
(i) maintain its status as a REIT and not take any action which could lead to its disqualification
as a REIT and (ii) continue to operate as a self-directed and self-administered REIT and be listed
on a nationally-recognized stock exchange. The Trust will not engage in any business other than the
business of acting as a REIT and serving as the general partner and limited partner of the Borrower
and matters directly relating thereto, and shall (x) conduct all or substantially all of its
business operations through the Borrower or through subsidiary partnerships or other entities
in whichowned by the Borrower owns 100% of the
economic interests and, (y) own no real property or material personal
property other than through its ownership interests in the Borrower and (z) continue to hold in
excess of 80% of the partnership interests of FPLP and to be the sole general partner thereof
(including entitlement to not less than 80% of the voting and control of FPLP), and such
partnership interests shall be free of any and all options, warrants, calls or similar agreements
and all restrictions on transfer (whether written or oral) other than as set forth in Articles VII
and IX of the Agreement of Limited Partnership of FPLP. The Trust will (a) cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition, repair and working order,
and supplied with all necessary
-69-
§8.8. Insurance. The Borrower, the Subsidiary Guarantors and the Trust will
maintain with respect to their other properties, and will cause each of their respective
Subsidiaries to maintain, with financially sound and reputable insurers, insurance with respect to
such properties and its business against such casualties and contingencies as shall be in
accordance with the general practices of businesses engaged in similar activities in similar
geographic areas and in amounts, containing such terms, in such forms and for such periods as may
be reasonable and prudent.
§8.9. Taxes. The Borrower and the Subsidiary Guarantors will, and will cause
the Trust and each of their respective Subsidiaries to, pay or cause to be paid real estate
taxes, other taxes, assessments and other governmental charges against the Real Estate Assets
before the same become delinquent and will duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments and other governmental
charges imposed upon its sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of the Real Estate Assets; provided that (i) any
such tax, assessment, other governmental charge, levy or claim
need not be paid if the validity or amount thereof shall currently be contested in good faith by
appropriate proceedings and if that operate to suspend the
collection and enforcement thereof, and (ii) the Borrower, the Subsidiary Guarantor or the
Trust shall have set aside on its books adequate reserves with respect thereto; and
provided further that the Borrower, the Subsidiary Guarantors or the Trust will pay all
such taxes, assessments, other governmental charges, levies or
claims forthwith prior to the consummation of proceedings to foreclose any lien that may have
attached as security therefor. Promptly upon request by the Agent if required for bank regulatory
compliance purposes or similar bank purposes, the Borrower will provide evidence of the payment of
real estate taxes, other taxes, assessments and other governmental charges against the Real Estate
Assets in the form of receipted tax bills or other form reasonably acceptable to the Agent, or
evidence of the existence of applicable contests as contemplated herein.
§8.10. Inspection of Properties and Books; Treatment of Certain Information;
Confidentiality. (a) Subject to the rights of tenants to limit or prohibit such access, as
denoted in the applicable Leases, the Borrower, the Subsidiary Guarantors and the Trust will permit
the Agent or any of its designated representatives upon reasonable notice (which notice may be
given orally or in writing and provided that no notice shall be required if a Default or
Event of Default has occurred and is continuing), to visit and inspect any of the properties of the
Borrower, such Subsidiary Guarantor, the Trust or any
-70-
of their respective Subsidiaries to examine the books of account of the Borrower, such Subsidiary
Guarantor, the Trust and their respective Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the Borrower, such Subsidiary
Guarantor, the Trust and their respective Subsidiaries with, and to be advised as to the same by,
its officers, all at such reasonable times and intervals as the Agent may reasonably request.
(c) The Borrower hereby acknowledges that (a) the Agent and/or the Arranger will make
available to the Lenders materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, “Borrower Materials”) by posting such
materialsthe Borrower Materials on SyndTrak or another similar electronic
system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders
(i.e., Lenders that(each, a “Public Lender”) may have personnel who do not
wish to receive material non-public information with respect to the Borrower or its
securities) (each, a “Public Lender”) Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. The Borrower hereby agrees
that (w) all such materialsBorrower Materials that are to be
made available to Public Lenders shall, upon the request of the Agent, be clearly and
conspicuously marked “PUBLIC”by Borrower which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
such materialsBorrower Materials “PUBLIC,” the Borrower shall
be deemed to have authorized the Agent, the Arranger, and the Lenders to treat such
materialsBorrower Materials as not containing any material
non-public information with respect to the Borrower, the Subsidiary Guarantors, the
Trust or their or its securities for purposes of United States Federal and
state securities laws; (y) all such materialsBorrower
Materials
-71-
marked “PUBLIC”by Borrower are permitted to be made available through
a portion of the Platform designated “Public InvestorSide
Information;” and (z) the Agent and the Arranger shall be entitled to treat any
such materialsBorrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform established for
confidential non-public information and materials with respect to Borrower, the Subsidiary
Guarantors, the Trust or their securities and not designated “Public
InvestorSide
Information.” Notwithstanding the foregoing, Borrower shall be under no obligation to xxxx any
such materials “PUBLIC.” In addition, Agent, Arranger and the Lenders all agree to
maintain all such materials (other than any such materials as are marked “PUBLIC”) in confidence
and further agree that they shall not make any such materials available to any other Person
(including, without limitation, other proposed Lenders and/or participants) unless and until such
other Person agrees in writing to maintain such materials in confidence consistent with the terms
hereof. ”, and each Public Lender shall designate to the Agent one or more
persons who are entitled to receive and view any such materials containing material non public
information to the same extent as Lenders that are not Public Lenders.
(d) Each of the Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees,
advisors and representatives (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or participant in, or any prospective
assignee of or participant in, any of its rights or obligations under this Agreement or any third
party that may be invited to become a party to, and a “Lender” under, this Agreement in connection
with an Increase pursuant to §2.8 of this Agreement or (ii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes available to
the Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a
source other than the Borrower. For purposes of this Section, “Information” means all information
received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of
their respective businesses, other than any such information that is available to the Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
-72-
Each of the Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.
§8.11. Compliance with Laws, Contracts, Licenses, and Permits. The Borrower, the
Subsidiary Guarantors and the Trust will comply with, and will cause each of their respective
Subsidiaries to comply with (a) all applicable laws and regulations now or hereafter in effect
wherever its business is conducted that are material in any respect to the operation of their
respective businesses in the ordinary course and consistent with past practices, including, without
limitation, all such Environmental Laws and all such applicable federal and state securities laws,
except where the failure to so comply could not reasonably be expected to have a Material
Adverse Effect, (b) the provisions of its partnership agreement or corporate charter and other
Organizational Documents, as applicable, (c) all material agreements and instruments to which it is
a party or by which it or any of its properties may be bound (including the Real Estate Assets, the
Leases and the Property Level Loan Documents, as applicable) , except where the failure to so
comply could not reasonably be expected to have a Material Adverse Effect, and (d) all
applicable decrees, orders, and judgments, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. If at any time while the Term Loan
or any Note or other Obligation is outstanding or the Lenders have any obligation to
make, continue or convert a portion of the Term Loan hereunder, any Permit shall
become necessary or required in order that the Borrower or any Subsidiary Guarantor may fulfill any
of its obligations hereunder, the Borrower, the Subsidiary Guarantors and the Trust and their
respective Subsidiaries will immediately take or cause to be taken all reasonable steps within the
power of the Borrower, such Subsidiary Guarantor or the Trust, as applicable, to obtain such Permit
and furnish the Agent with evidence thereof.
§8.12. Use of Proceeds. Subject at all times to the other provisions of this
Agreement, including without limitation §7.17, the Borrower will use the proceeds of the Loans
solely to finance acquisitions and rehabilitation of Permitted Properties, to repay amounts
outstanding under the Unsecured Revolver and for its working capital and general corporate
purposes.
§8.13. Additional Borrower; Solvency of Borrower; Removal of Borrower; Addition of Real
Estate Asset to Unencumbered Pool.
-73-
(a) (i) If, after the ClosingAmendment No. 5
Effective Date, the Borrower wishes to designate as an Eligible Borrowing Base Property a Real
Estate Asset that otherwise qualifies as an Eligible Borrowing Base Property but is owned by a
Person other than the Borrower or a Subsidiary Guarantor, the Borrower shall give the Agent at
least ten (10) Business Days’ prior written notice thereof. Such written notice shall specify
whether such potential Eligible Borrowing Base Property is intended to be a Mortgage Collateral
Property, a Pledged Equity Property or a Pledged Distributions Property, provided that
such potential Eligible Borrowing Base Property shall only be permitted to be a Pledged
Distributions Property to the extent that the applicable Property Level Loan Documents prohibit
such property from being a Pledged Equity Property. With such written
notice, and provided further that, if such potential Eligible Borrowing Base
Property is not subject to Property Level Loan Documents, the Agent may decide, in its reasonable
discretion, that such potential Eligible Borrowing Base Property may not be added to the Borrowing
Base Pool unless it will be added as a Mortgage Collateral Property. Prior to the addition of any
Real Estate Asset to the Borrowing Base Pool, the Borrower and/or the potential Subsidiary
Guarantor, as applicable, shall deliver to the Agent each of the
following, all of which must be satisfactory to and approved by the Agent: (A) the applicable
Joinder Documents, which shall include, without limitation, a joinder to the Subsidiary Guaranty
pursuant to which such Wholly-ownedOwned Subsidiary which owns
the potential Eligible Borrowing Base Property guarantees the Obligations, the Mortgage
Documents, if applicable, or a supplement to the Equity Pledge Agreement or the Distributions
Pledge Agreement, as applicable, pursuant to which the Equity Interests of such Subsidiary or the
rights to Distributions attributable thereto shall be pledged to the Agent and a supplement to the
Account Agreement, if applicable; (ii) the organizational structure and Organizational Documents
for the direct and indirect owners of such potential Eligible Borrowing Base Property; (iii) the
operating statements and rent roll with respect to such potential Eligible Borrowing Base Property;
(iv) a Certificate of Compliance in the form of Exhibit C evidencing compliance with the
covenants set forth in §10, and containing a certification that no Default or Event of Default
exists and that such potential Borrowing Base Asset is not the subject of a Disqualifying
Environmental Event or a Disqualifying Structural Event, in each case after giving effect to the
inclusion of the additional Eligible Borrowing Base Property; and (v) such other documents,
instruments, agreements, amendments or supplements to existing Security Documents, opinions or
other information as the Agent deems necessary or advisable with respect to such potential Eligible
Borrowing Base Property, the potential Subsidiary Guarantor or the potential Pledged Interests.
(ii) At any time and from time to time but only for so long as no Default or Event of Default
shall then exist, the Borrower may notify Agent, in writing (each, a “Release Notice”), that the
Borrower would like one (1) or more Eligible Borrowing Base Properties to be removed from the
Borrowing Base Pool. Such Release Notice shall be accompanied by a Certificate of Compliance in
the form of Exhibit C, evidencing compliance with §10 and certifying as to no Default or
Event of Default after giving effect to the requested release. Upon the Agent’s receipt of such
Release Notice and its satisfaction with the Certificate of
Compliance, such Eligible Borrowing Base Properties (each, a “Released Property”)
shall be removed from the Borrowing Base Pool and any Subsidiary Guarantor which is the owner of a
Released Property (and is not the owner of any other Eligible Borrowing Base Property) shall be
released from its obligations under the Subsidiary Guaranty. In connection with such release,
the Agent, at the Borrower’s sole cost and expense, shall provide the Borrower with such releases
and other customary documentation as may be necessary or reasonably requested by the Borrower to
release the Agent’s liens and security interests in any collateral associated with such Released
Property and Subsidiary Guarantor.
-74-
(iii) FPLP will not permit any Subsidiary Guarantor that owns an Eligible Borrowing Base
Property to have any Subsidiaries unless such Subsidiary’s business, obligations and undertakings
are exclusively related to the business of such BorrowerSubsidiary
Guarantor.
| (b) | The Borrower and the Trust shall, on a consolidated basis, remain solvent at all times. |
(c) In the event the Borrower wishes to add a Real Estate Asset to the Borrowing Base
Pool which does not meet one or more of the Borrowing Base Property Conditions or the provisions of
§8.13(c), such Real Estate Asset may be included in the Borrowing Base Pool with the
approval of the Agent and the Majority Lenders.
§8.14. Further Assurances. The Borrower and the Trust will, and will cause each
Subsidiary Guarantor and each Unsecured Revolver Subsidiary Guarantor to, cooperate with the
Agent and the Lenders and execute such further instruments and documents as the Lenders or the
Agent shall reasonably request to carry out to their satisfaction the transactions contemplated by
this Agreement and the other Loan Documents.
§8.15. Interest Rate Protection. In the event that the Borrower’s floating rate
Indebtedness that is not otherwise subject to interest rate protection arrangements at any time
exceeds twenty-five percent (25%) of Consolidated Gross Asset Value, the Borrower shall obtain and
maintain in effect interest rate protection arrangements (by means of hedging techniques or
vehicles such as interest rate swaps, interest rate caps, interest rate corridors or interest rate
collars (or other mechanism approved by the Agent), in each case to be capped at a rate
reasonably satisfactory to the Agent and otherwise in form and substance reasonably satisfactory to
the Agent) (an “Interest Rate Protection Arrangement”) for a term and in an amount
reasonably satisfactory to the Agent. Once obtained, the Borrower shall maintain such arrangements
in full force and effect as provided therein, and shall not, without the approval of the Agent,
modify, terminate, or transfer such arrangements during the period in which the Borrower’s floating
rate Indebtedness exceeds twenty-five percent (25%) of Consolidated Gross Asset Value.
§8.16. Environmental Indemnification. The Borrower and the Trust each
covenants and agrees that it will indemnify and hold the Agent and each Lender, and each of their
respective Affiliates, harmless from and against any and all claims, expense, damage, loss or
liability incurred by the Agent or any Lender (including all reasonable costs of legal
representation incurred by the Agent or any Lender, but excluding, as applicable, for the Agent or
a Lender any claim, expense, damage, loss or liability as a result of the gross negligence or
willful misconduct of the Agent or such Lender or any of their respective Affiliates) relating to
(a) any Release or threatened Release of Hazardous
-75-
Substances on any Real Estate Asset; (b) any violation of any Environmental Laws with respect to
conditions at any Real Estate Asset or the operations conducted thereon; (c) the investigation or
remediation of off-site locations at which the Borrower, a Subsidiary Guarantor, an Unsecured
Revolver Subsidiary Guarantor, the Trust or any of their respective Subsidiaries or their
predecessors are alleged to have directly or indirectly disposed of Hazardous Substances; or (d)
any action, suit, proceeding or investigation brought or threatened with respect to any Hazardous
Substances relating to Real Estate Assets (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property). It is expressly acknowledged by the
Borrower, the Subsidiary Guarantors and the Unsecured Revolver Subsidiary
Guarantors that, notwithstanding the introductory paragraph of this §8, this covenant of
indemnification shall survive the repayment of the amounts owing under the Notes and this Agreement
and the termination of this Agreement and the obligations of the Lenders hereunder and shall inure
to the benefit of the Agent and the Lenders and their respective Affiliates, their respective
successors, and their respective assigns under the Loan Documents permitted under this Agreement.
§8.17. Response Actions. The Borrower covenants and agrees that if any Release or
disposal of Hazardous Substances shall occur or shall have occurred on any Real Estate Asset owned
directly or indirectly by the Borrower, any of the Subsidiary Guarantors, any of the Unsecured
Revolver Subsidiary Guarantors or the Trust, in violation of applicable Environmental Laws, the
Borrower will cause the prompt containment and removal of such Hazardous Substances and remediation
of such wholly-owned Real Estate Asset as necessary to comply with all Environmental Laws
or to preserve the value of any applicable Eligible Borrowing Base Property.
§8.18. Environmental Assessments. If the Agent reasonably believes, after discussion
with the Borrower and review of any environmental reports provided by the Borrower, that a
Disqualifying Environmental Event has occurred with respect to any one or more of the Eligible
Borrowing Base Properties, whether or not a Default or an Event of Default shall have occurred, the
Agent may, from time to time, for the purpose of assessing and determining whether a Disqualifying
Environmental Event has in fact occurred, cause the Borrower to obtain one or more environmental
assessments or audits of such Eligible Borrowing Base Property prepared by a hydrogeologist, an
independent engineer or other qualified consultant or expert approved by the Agent to evaluate or
confirm (i) whether any Hazardous Substances are present in the soil or water at such Eligible
Borrowing Base Property and (ii) whether the use and operation of such Eligible Borrowing Base
Property complies with all Environmental Laws. Environmental assessments may include without
limitation detailed visual inspections of such Eligible Borrowing Base Property including, without
limitation, any and all storage areas, storage tanks, drains, dry xxxxx and leaching areas, and, if
and to the extent reasonable, appropriate and required pursuant to applicable Environmental Laws,
the taking of soil samples, surface water samples and ground water samples, as well as such other
investigations or analyses as the Agent deems appropriate. All such environmental assessments
shall be at the sole cost and expense of the Borrower.
-76-
§8.19. Employee Benefit Plans.
(a) Notice. The Borrower and the Trust will notify the Agent (with copies to
the Agent for each Lender) at least thirty (30) days prior to the establishment of any Employee
Benefit Plan, Multiemployer Plan oror becoming obligated to
contribute to or to increase its contribution to any Multiemployer Plan or the establishment of any
Guaranteed Pension Plan or the amendment of any such Guaranteed Pension Plan in a manner so as to
materially increase the benefits or funding obligations under such Guaranteed Pension Plan by
any of them or any of their respective ERISA Affiliates other than those Employee Benefit
Plans, Multiemployer Plans or Guaranteed Pension Plans disclosed on Schedule 8.19
attached hereto or disclosed in the SEC Filings, and neither the Borrower nor the Trust will
establish any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan which could
reasonably be expected to have a material adverse effect on FPLP, the Trust or any
member of the Potomac GroupMaterial Adverse Effect.
(b) In General. Each Employee Benefit Plan maintained by the Borrower, the
Trust or any of their respective ERISA Affiliates will be operated in compliance with the
provisions of ERISA and, to the extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions.
(c) Terminability of Welfare Plans. With respect to each Employee Benefit Plan
maintained by the Borrower, the Trust or any of their respective ERISA Affiliates which is an
employee welfare benefit plan within the meaning of §3(l) or §3(2)(B) of ERISA, the Borrower, the
Trust, or any of their respective ERISA Affiliates, as the case may be, shall have the right to
terminate each such plan at any time (or at any time subsequent to the expiration of any applicable
bargaining agreement) without liability other than liability to pay claims incurred prior to the
date of termination.
(d) Unfunded or Underfunded Liabilities.
TheNone of the Borrower
and, the Trust nor any ERISA Affiliate will not
at any time have accruing or accrued unfunded or underfunded liabilities with
respect to any Employee Benefit Plan (other than with respect to any employee welfare benefit
plan within the meaning of §3(l) or §3(2)(B) of ERISA or any plan that is described in §201(2) or
§201(7) of ERISA), Guaranteed Pension Plan or Multiemployer Plan, or permit any condition to
exist under any Multiemployer Plan that would create a withdrawal liability. With respect to
any Employee Benefit Plan that is an employee welfare benefit plan within the meaning of §3(l) or
§3(2)(B) of ERISA or any plan that is described in §201(2) or §201(7) of ERISA, none of the
Borrower, the Trust nor any ERISA Affiliate has any accrued liability in excess of $5,000,000 that
was not incurred in the ordinary course or any accrued liability in excess of $10,000,000.
§8.20. No Amendments to Certain Documents. The Borrower and the Trust will not at
any time cause or permit its certificate of limited partnership, agreement of limited partnership
(including without limitation the Agreement of Limited Partnership of the Borrower), articles of
incorporation, by-laws, operating agreement or other Organizational Documents, as the case may be,
to be modified, amended or supplemented in any respect whatever, without (in each case) the express
prior written consent or approval of the Agent, if such changes could reasonably be expected to
affect the Trust’s REIT status or otherwise adversely affect the rights of the Agent and the
Lenders hereunder or under any other Loan Document.
-77-
§8.21. Additional Guaranties
(a) The Borrower and/or the Trust shall cause each Subsidiary (other than
any Subsidiary Guarantor) that is (i) at any time and from time to time required to enter into a
guaranty of the obligations under the Unsecured Revolver Agreement or a joinder agreement in
respect of an existing guaranty of such obligations pursuant to the terms of §8.21(a) of the
Unsecured Revolver Agreement, or (ii) an Unsecured Revolver Borrower that, at any time and from
time to time, becomes, directly or indirectly, an obligor, borrower or guarantor in respect of any
Indebtedness that is not secured by a Lien evidenced by a mortgage, deed of trust, assignment of
partnership interests or other security interest or otherwise (other than Indebtedness pursuant to
the Unsecured Revolver Agreement or 2011 Term Loan Agreement), to enter into an Additional
Subsidiary Guaranty Joinder Agreement in respect of the Additional Subsidiary Guaranty in the form
attached hereto as Exhibit F, at the same time that such Subsidiary becomes a guarantor under the
Unsecured Revolver Guaranty or on or before the date such Unsecured Revolver Borrower becomes an
obligor, borrower or guarantor in respect of such Indebtedness, as the case may be, and
concurrently therewith (or at such later date as the Agent may approve, in its sole discretion),
the Borrower and/or the Trust shall cause the applicable Subsidiary to deliver (x) an executed
original counterpart of Additional Subsidiary Guaranty Joinder Agreement, (y) the items identified
in §§12.2, 12.3, 12.4, 12.5 (with respect to §12.5, if requested by the Agent, in its sole
discretion, and, unless otherwise requested by the Agent, such opinion may be an opinion of
in-house counsel) and 12.7 (with respect to §12.7, except that government certifications may be in
short form, unless otherwise requested by the Agent) of this Agreement with respect to such
Subsidiary, and (z) any other items, documents, certificates, instruments or agreements reasonably
requested by the Agent, in each case in form and substance satisfactory to the Agent.
(b) At any time and from time to time, but only for so long as no Default or
Event of Default shall then exist, the Borrower may provide the Agent with a written notice (each,
an “Unsecured Revolver Subsidiary Guarantor Release Notice”), that the Borrower would like an
Unsecured Revolver Subsidiary Guarantor to be released from the Additional Subsidiary Guaranty to
which it is a party, and such Unsecured Revolver Subsidiary Guarantor shall be released from such
Additional Subsidiary Guaranty provided that (i) prior to or simultaneously with such release, such
Unsecured Revolver Subsidiary Guarantor has been released as an obligor, borrower and guarantor in
respect of any and all Indebtedness that is not secured by a Lien evidenced by a mortgage, deed of
trust, assignment of partnership interests or other security interest or otherwise (other than
Indebtedness pursuant to the Unsecured Revolver Agreement or 2011 Term Loan Agreement), and (ii)
the Unsecured Revolver Subsidiary Guarantor Release Notice is accompanied by a certificate as of a
recent date, in form and substance reasonably satisfactory to the Agent, executed by a duly
authorized officer of the Trust, in its capacity as general partner of FPLP, certifying as to (A)
the satisfaction of the conditions in the immediately preceding clause (i) and including such other
information in reasonable detail as the Agent may reasonably require to evidence such satisfaction
and (B) no Default or Event of Default either before or after giving effect to the requested
release.
-78-
§9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE TRUST. The Borrower
and the Trust, on itstheir own behalf and on behalf of
itstheir respective Subsidiaries, covenants and
agreesjointly and severally covenant and agree that neither the Borrower,
the Subsidiary Guarantors nor the Trust will:
§9.1. Restrictions on Indebtedness. Create, incur, assume, guarantee or be or remain
liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Agent and the Lenders (and their respective
Affiliates) arising under any of the Loan Documents, the Unsecured Revolver
Agreement and the 2011 Term Loan Agreement;
(b) current liabilities of the Borrower or the Subsidiary
Guarantorsand its Subsidiaries incurred in the ordinary course of business
other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on
an open account basis customarily extended and in fact extended in connection with normal purchases
of goods and services;
(c) Indebtedness (other than relating to the Eligible Borrowing Base
Properties) in an aggregate amount not in excess of $250,000 in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and supplies to the extent that
payment therefor shall not at the time be required to be made in accordance with the provisions of
§8.9; [Intentionally omitted];
(d) Indebtedness (other than relating to the Eligible Borrowing Base
Properties) in an aggregate amount not in excess of $1,000,000 in respect of judgments or awards
that have been in force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which, at the time, a good faith appeal or
proceeding for review is being prosecuted, and in respect of which a stay of execution shall have
been obtained pending such appeal or review; [Intentionally omitted];
(e) endorsements for collection, deposit or negotiation incurred in the ordinary course
of business;
(f) Secured Indebtedness of the Borrower incurred after the Closing
Dateand its Subsidiaries, provided that: (i) such Indebtedness is
Without Recourse to the Borrower or the Trust and is Without Recourse to any of the respective
assets of any of the Borrower or the Trust other than to the specific Real Estate Asset or Assets
acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, except that,
notwithstanding the foregoing, a portion of such Indebtedness at any time outstanding not in excess
of fifteen percent (15%) of Consolidated Gross Asset Value may be Recourse Indebtedness of the
-79-
Borrower and its Subsidiaries so long as such Indebtedness is not secured by any Eligible
Unencumbered Property (as defined in the Unsecured Revolver Agreement)
or a pledge of the equity of any Subsidiary that owns an Eligible Unencumbered
Property (as defined in the Unsecured Revolver Agreement it being
acknowledged, for the avoidance of doubt, that the outstanding Indebtedness
under the Term Loan shall count against the fifteen percent (15%) basket
referred to in this clause (i)), (ii) at the time any such Indebtedness is incurred and after
giving effect thereto, there exists no Default or Event of Default hereunder and (iii) such
Indebtedness, in the aggregate, does not exceed forty percent (40%) of Consolidated Gross Asset
Value (it being acknowledged, for the avoidance of doubt, that the outstanding
Indebtedness hereunder and under the 2008 Term Loan shall count against the fifteen percent (15%)
basket referred to in clause (i) above);
(g) contingent liabilities of the Borrower or the Subsidiary
Guarantorsand its Subsidiaries disclosed in the financial statements
referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent liabilities of
the Borrower having a combined aggregate potential liability of not more than $1,000,000 at any
time;
(h) Indebtedness of the Borrower or the Subsidiary
Guarantorsand its Subsidiaries for the purchase price of capital assets
(other than Real Estate Assets but including Indebtedness in respect of Capitalized Leases)
incurred in the ordinary course of business, provided that the aggregate principal amount
of Indebtedness permitted by this clause (h) shall not exceed $500,000 at any time outstanding;
(i) (j) unsecured Indebtedness of the
Borrower and its Subsidiaries (including subsidiary guarantees by any Subsidiary of FPLP)
and unsecured guarantees by the Trust with respect to such unsecured Indebtedness, provided
that (i) such Indebtedness shall at all times remain unsecured in all respects (including, for the
avoidance of doubt, that the Equity Interests of the Borrower or any Subsidiary Guarantor shall not
be pledged as security for any such Indebtedness), (ii) both before and immediately after giving
effect to the incurrence of any such unsecured Indebtedness, no Default or Event of Default
has occurred or is continuing, (iii) prior to incurring any such unsecured Indebtedness, the
Borrower has provided the Agent with a certificate in the form of Exhibit C-2
evidencingshall be in compliance with each of the financial covenants set
xxxxx xx §00 of the Credit Agreementhereof on a pro
forma basis immediately after giving effect to such unsecured Indebtedness, and (iv) such
unsecured Indebtedness shall not be in the nature of a revolving credit
facility. ;
-80-
It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness
of any Partially--Owned Entity which is Without Recourse to
the Borrower, any Subsidiary Guarantor or the Trust, or any of their respective assets.
The terms and provisions of this §9.1 are in addition to, and not in limitation of, the
covenants set forth in §10.
§9.2. Restrictions on Liens, Etc. (a) Create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge,
attachment, security interest or other rights of third parties of any kind upon any of the Eligible
Borrowing Base Properties, the Equity Interests of the Borrower or any Subsidiary Guarantor or any
other Collateral, whether now owned or hereafter acquired, or upon the income or profits therefrom
or the Distributions attributable thereto, as applicable; (b) acquire, or agree or have an option
to acquire, any property or assets upon conditional sale or other title retention or purchase money
security agreement, device or arrangement in connection with the operation of the Eligible
Borrowing Base Properties; (c) suffer to exist with respect to the Eligible Borrowing Base
Properties, any taxes, assessments, and other governmental
charges and claims for labor, materials and supplies that are more than 30 days past due,
for which payment thereof is not being contested or for which payment notwithstanding a contest is
required to be made in accordance with the provisions of §8.9 and has not been timely made; or (d)
sell, assign, pledge or otherwise transfer for security any accounts, contract rights, general
intangibles, chattel paper or instruments, with or without recourse, relating to the Eligible
Borrowing Base Properties, the Equity Interests of the Borrower or any Subsidiary Guarantor or any
other Collateral (the foregoing types of liens and encumbrances described in clauses (a) through
(d) being sometimes referred to herein collectively as “Liens”), provided that the Borrower
and the Subsidiary Guarantors may create or incur or suffer to be created or incurred or to exist:
(i) Liens securing taxes, assessments, or other
governmental charges or levies or claims for labor, materials and supplies which are not
yet due and payable or which are not yet required to be paid under §8.9;
(ii) Liens arising out of deposits or pledges made in connection with, or to secure
payment of, worker’s compensation, unemployment insurance, old age pensions or other social
security obligations; and deposits with utility companies and other similar deposits made in the
ordinary course of business;
-81-
(iii) Liens (other than affecting the Eligible Borrowing Base Properties) in respect of
judgments or awards, the Indebtedness with respect to which is not prohibited by
§9.1(d not constituting an Event of Default under §14.1(i);
(iv) Encumbrances on properties consisting of easements, rights of way, covenants,
zoning and other land-use restrictions, building restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto; landlord’s or lessor’s Liens under
Leases to which the Borrower is a party or bound; purchase options granted at a price not less than
the market value of such property; and other minor Liens or encumbrances on properties, none of
which interferes materially and adversely with the use of the property affected in the ordinary
conduct of the business of the Borrower, and which matters (x) do not individually or in the
aggregate have a material adverse effect on the business of FPLP, the Trust or any
member of the Potomac GroupMaterial Adverse Effect and (y) do not make title
to such property unmarketable by the conveyancing standards in effect where such property is
located;
(v) (A) any Leases entered into in the ordinary course of business, and (B)
bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to Cash and
Cash Equivalents on deposit in one or more of accounts maintained by the Borrower, in each case in
the ordinary course of business in favor of the bank or banks with which such accounts are
maintained, securing solely the customary amounts owing to such bank with respect to cash
management and operating account arrangements; provided, that in no case shall any such Liens
secure (either directly or indirectly) the repayment of any Indebtedness;
(vi) as to Real Estate Assets which are acquired after the date of this Agreement, Liens
and other encumbrances or rights of others which exist on the date of acquisition and which do not
otherwise constitute a breach of this Agreement; provided that nothing in this clause (vi)
shall be deemed or construed to permit an Eligible Borrowing Base Property to be subject to a Lien
to secure Indebtedness, except as permitted by §9.2(xix);
(vii) Liens affecting the Eligible Borrowing Base Properties in respect of judgments or
awards that are under appeal or have been in force for less than the applicable period for taking
an appeal, so long as execution is not levied thereunder or in respect of which, at the time, a
good faith appeal or proceeding for review is being diligently prosecuted, and in respect of which
a stay of execution shall have been obtained pending such appeal or review; provided that
the Borrower shall have obtained a bond or insurance or made other arrangements with respect
thereto, in each case reasonably satisfactory to the Agent;
(viii) Liens securing Indebtedness for the purchase price of capital assets (other than
Real Estate Assets but including Indebtedness in respect of Capitalized Leases for equipment and
other equipment leases) to the extent not otherwise prohibited by §9.1; and
-82-
(ix) first priority mortgages and related financing statements and first priority
security agreements on the Eligible Borrowing Base Properties in existence on the date hereof
that are not Mortgage Collateral Properties or encumbering a Real Estate Asset on or after
the date hereof which becomes an Eligible Borrowing Base Property that is not a Mortgage
Collateral Property after the date hereof pursuant to §8.13(a)(i) and any first priority
mortgages and related financing statements and first priority security agreements in connection
with a refinancing of any such Property Level Debt, provided that the existence of such
mortgages and the Indebtedness secured thereby does not cause the Borrower to be in violation of
§10, and provided, further that prior to Borrower or any of its Subsidiaries
obtaining any such refinancing of any Pledged Property, Borrower shall provide to Agent
contemporaneously with or prior to such refinance (a) a Certificate of Compliance demonstrating
that after giving effect to such refinance, no Default or Event of Default shall exist with respect
to the covenants set forth in §10, (b) evidence satisfactory to Agent that the loan documents
evidencing such new indebtedness do not restrict or prohibit the pledge, assignment and/or transfer
of the applicable Pledged Interests and (c) such replacements or amendments to the applicable
Account Agreement as Agent may reasonably deem necessary or advisable.
(x) other Liens (other than Liens affecting the Eligible Borrowing Base Properties)
in connection with any Indebtedness permitted under §9.1 (other than the unsecured Indebtedness
permitted under clause (i) of §9.1).
Nothing contained in this §9.2 shall (i) restrict or limit the Borrower or any of
their respective Wholly-owned Subsidiaries from creating a Lien
in connection withon any Real Estate Asset which is not an
Eligible Borrowing Base Property and otherwise in compliance with the other terms of this
Agreement or (ii) limit the ability of the Borrower to enter into a contract for the sale of an
Eligible Borrowing Base Property provided that no Default or Event of Default shall have occurred
both before and immediately after giving effect to such sale, including, without limitation, with
respect to each of the financial covenants set forth in §10 of this Agreement on a pro forma basis
both before and immediately after giving effect to such sale.
The Trust shall not create or incur or suffer to be created or incurred any Lien on any of its
directly-owned properties or assets, including, in any event, its general partner interests and
limited partner interests in the Borrower.
§9.3. Restrictions on Investments. Make or permit to exist or to remain
outstanding any Investment except, with respect to the Borrower and its Subsidiaries only,
Investments in:
(a) marketable direct or guaranteed obligations of the United States of America that
mature within one (1) year from the date of purchase (including investments in securities
guaranteed by the United States of America such as securities in
so--called “overseas private investment corporations”);
-83-
(b) demand deposits, certificates of deposit, bankers acceptances and time deposits of
United States banks having total assets in excess of $1,000,000,000;
(c) securities commonly known as “commercial paper” issued by a corporation organized
and existing under the laws of the United States of America or any state thereof that at the time
of purchase have been rated and the ratings for which are not less than
” “ P 1” if rated by Xxxxx’x, and not less than “A 1” if rated
by S&P and (ii) investments, classified in accordance with GAAP as current assets of the
Borrower or any of its Subsidiaries, in money market investment programs registered under the
Investment Company Act of 1940, which are administered by financial institutions that have a rating
of not less than “P 1” if rated by Xxxxx’x, and not less than “A 1” if rated by S&P, and the
portfolios of which are limited solely to Investments of the character, quality and maturity
described in clauses (a) and (b) above;
(d) Investments existing on the ClosingAmendment No. 5
Effective Date and listed in the financial statements referred to in §7.4;
(e) other Investments hereafter made in connection with the acquisition and
development of Investment Permitted Properties by the Borrower or any
Wholly-ownedOwned Subsidiary of the Borrower, provided
that the aggregate amounts actually invested by Borrower (or if not invested directly by Borrower,
actually invested by an Affiliate of the Borrower for which the Borrower has any funding
obligation) and such Wholly-ownedOwned Subsidiary at any time
in Real Estate Assets underUnder Development (including all
development costs) will not exceed tentwenty percent
(1020%) of the Consolidated Gross Asset Value at the time of
any such Investment; and Investments in raw land intended to be developed by the Borrower or any
Wholly-ownedOwned Subsidiary of the Borrower for use as
aan Investment Permitted Property, provided that the
aggregate amounts actually invested by Borrower (or if not invested directly by Borrower, actually
invested by an Affiliate of the Borrower for which the Borrower has any funding obligation) and
such Wholly-ownedOwned Subsidiary at any time in raw land will
not exceed five percent (5%) of the Consolidated Gross Asset Value at the time of any such
Investment;
(f) any Investments now or hereafter made in (i) any
Wholly-ownedOwned Subsidiary; and Investments
now or hereafter made in any and (ii) any Subsidiary (other than a Wholly-Owned
Subsidiary) or Partially-Owned Entity (or other Person for which the Borrower has
any funding obligation) so long as, in the case of clause (ii), such
Investment is made in connection with Investment Permitted Properties and provided
that the aggregate amounts actually invested by Borrower (or if not invested directly by Borrower,
actually invested by an Affiliate of the Borrower for which the Borrower has any funding
obligation) and such Wholly-owned Subsidiary at any time in
any Partially-Owned Entity (or other such
Person) Entities will not exceed
twentyten percent (2010%)
of the Consolidated Gross Asset Value at the time of any such Investment;
and
-84-
(g) Investments in respect of (1) equipment, inventory and other tangible personal
property acquired in the ordinary course of business, (2) current trade and customer accounts
receivable for services rendered in the ordinary course of business and payable in accordance with
customary trade terms, (3) advances in the ordinary course of business to employees for travel
expenses, drawing accounts and similar expenditures, and (4) prepaid expenses made in the
ordinary course of business. ; and
(h) Investments by the Borrower in Mortgage
NotesStructured Finance Investments, provided that the aggregate
investmentinvestments in such Mortgage Notes
willStructured Finance Investments shall not exceed
fiveten percent (510%) of
the Consolidated Gross Asset Value at the time of any such Investment, and further provided
that with respect to any such Investment in mezzanine loans or preferred equity, the documents
governing the terms of such Investments shall be delivered to the Agent promptly upon the Agent’s
request therefor.
In no event shall the aggregate of Investments made pursuant to subclauses (e),
(f), (gii) and (h) above exceed
twenty-fivethirty percent
(2530%) of Consolidated Gross Asset Value at any time.
Notwithstanding the foregoing, the Trust shall be permitted to make and maintain Investments
in the Borrower and the Trust shall contribute to the Borrower, promptly upon, and in any event
within 3 Business Days of, the Trust’s receipt thereof, 100% of the aggregate proceeds received by
the Trust in connection with any offering of stock or debt in the Trust (net of fees and expenses
customarily incurred in such offerings).
§9.4. Merger, Consolidation and Disposition of Assets; Assets of the
Trust Secured Debt Incurrence.
(a) Become a party toconsummate any merger,
consolidation, spin-off or other material business
changedissolution or liquidation without the prior written approval of the
Majority Lenders (provided that any agreement to do any of the foregoing that would require the
consent of the Majority Lenders hereunder shall be conditioned upon receipt of such consent or the
payment in full of all Obligations), except that so long as no Default or Event of Default has
occurred and is continuing, or would occur after giving effect thereto, (i) the merger or
consolidation of one or more Persons with and into the Borrower or the Trust shall be permitted in
connection with the acquisition of Real Estate Assets if the Borrower or the Trust (as applicable)
is the surviving entity; provided that prior to any such merger or consolidation (other than
(x) the merger or consolidation of one or more
Wholly-ownedOwned Subsidiaries with and into the Borrower or
(y) the merger or consolidation of two or more Wholly
owned-Owned Subsidiaries of the Borrower so long as, in each
case, ), the Borrower shall provide to the Agent a statement in the form of
Exhibit C hereto signed by the chief financial officer or chief accounting officer of the Borrower
and setting forth in reasonable detail computations evidencing
-85-
compliance with the covenants contained in §10 hereof and certifying that no Default or
Event of Default has occurred and is continuing, or would occur and be continuing after giving
effect to such merger or consolidation and all liabilities, fixed or contingent, pursuant
thereto, (ii) the merger or consolidation of any Subsidiary with and into the Borrower or a
Subsidiary Guarantor, so long as (x) the Borrower or such Subsidiary Guarantor, as applicable, is
the surviving entity or (y) in the case of a merger or consolidation between any Subsidiary
Guarantor and any Subsidiary, the surviving entity of such merger or consolidation becomes a
Subsidiary Guarantor concurrently with the consummation thereof, (iii) the merger or consolidation
of a Subsidiary with another Subsidiary or any other Person shall be permitted if none of the
parties to such merger or consolidation) is the Borrower or a
Subsidiary Guarantor hereunder, and (iv) any Subsidiary (other than a Subsidiary Guarantor) may
dissolve or liquidate in connection with a transaction otherwise permitted hereunder that results
in such Subsidiary owning no assets; or
(b) sell, transfer or otherwise dispose of any Real Estate Assets or other property,
including any equity interest Equity Interest (excluding Equity
Interests issued by the Trust or FPLP) in any Person in any one or more transactions in any
12-month period four-quarter period
(collectively and individually, “Sell” or a “Sale”) (other than Investments
permitted under §9.3 and Distributions permitted under §9.6)having a sales price (net of
(i) any Indebtedness secured by a Lien on such Real Estate Assets, if
any or other property, if any, and (ii) the purchase price of any Real Estate
Assets or other property acquired during such four-quarter period, minus closing costs and any
Indebtedness secured by a Lien on such acquired Real Estate Assets or other property), in an
amount in excess of twenty percent (20%) of the most recently reported Consolidated Gross
Asset Value (collectively and individually, “Sell” or a “Sale”) or
xxxxx x Xxxx to secure Indebtedness (an “Indebtedness Lien” other
than in connection with the refinancing of other Secured Indebtedness incurred in connection with
the acquisition of Real Estate Assets) in any one or more transactions in a
12-monthfour-quarter period (collectively and
individually, an “Indebtedness Lien”) in an amount in excess of
twenty percent (20%) of the most recently reported Consolidated Gross Asset Value unless,
in each such event, the Majority Lenders have given their prior written consent thereto. In
addition, prior to any Sale or grant of an Indebtedness Lienthe
consummation of any Sale having a net sales price (net of any Indebtedness secured by a Lien on the
applicable Real Estate Asset) in an amount in excess of two percent (2%) of the most recently
reported Consolidated Gross Asset Value or the granting of any Indebtedness Lien in an amount in
excess of two percent (2%) of the most recently reported Consolidated Gross Asset Value, the
Borrower shall have provided to the Agent (with copies to the Agent for each Lender) a compliance
certificate in the form of Exhibit C, hereto signed by the chief financial officer or chief
accounting officer of the Borrower, setting forth in reasonable detail computations evidencing
compliance with the covenants contained in §10 hereof and certifying that no Default or Event of
Default would exist or occur and be continuing after giving effect to all such proposed Sales or
Indebtedness Liens (and the use of proceeds of such Sales or Indebtedness Liens to pay Indebtedness
outstanding hereunder).
-86-
§9.5. Compliance with Environmental Laws. (a) Use any of the Real Estate Assets or
any portion thereof as a facility for the handling, processing, storage or disposal of Hazardous
Substances except for quantities of Hazardous Substances used in the ordinary course of business
and in material compliance with all applicable Environmental Laws, (b) cause or permit to
be located on any of the Real Estate Assets any underground tank or other underground storage
receptacle for Hazardous Substances except in material compliance with Environmental Laws,
(c) generate any Hazardous Substances on any of the Real Estate Assets except in material
compliance with Environmental Laws, or (d) conduct any activity at any Real Estate Asset or use
any Real Estate Asset in any manner so as to cause a Release in violation of applicable
Environmental Laws, unless, with respect to clause (d) above, any such occurrence would not
result in a Material Adverse Effect.
§9.6. Distributions.
(a) The Borrower will not make or declare (i) annual Distributions in excess of 95% of
“funds from operations”; or Core FFO except to the extent (after
taking into account all available funds of the Trust from all other sources) required in order to
eliminate all taxable income of the Trust; and (ii) any Distributions during any period after
any monetary Event of Default has occurred; provided, however, (a) that the
Borrower may at all times (including while an Event of Default is continuing) make Distributions to
the extent (after taking into account all available funds of the Trust from all other sources)
required in order to enable the Trust to continue to qualify as a REIT and (b) in the event that
the Borrower cures any such Event of Default in clause (ii) above and the Agent has accepted such
cure prior to accelerating the Loan, the limitation of clause (ii) above shall cease to apply with
respect to such Event of Default.
(b) The Trust will not, during any period when any monetary Event of Default has
occurred and is continuing, make any Distributions in excess of the minimum Distributions required
to be made by the Trust in order to maintain its status as a REIT.
(c) Neither the Borrower nor any Subsidiary Guarantor will enter into any contract or
agreement pursuant to which it agrees not to pledge its legal, equitable or beneficial right, title
and interest in and to Distributions from its Subsidiaries.
§9.7. Government Regulation. The Borrower and the Trust shall not, and shall not
permit any of their respective Subsidiaries to, (a) be or become subject at any time to any law,
regulation, or list of any government agency (including, without limitation, the U.S. Office of
Foreign Asset Control list) that prohibits or limits the Agent or any Lender from making any
advance or extension of credit to the Borrower or from otherwise conducting business with the
Borrower, or (b) fail to provide documentary and other evidence of the Borrower’s identity as may
be requested by the Agent or any Lender at any time to enable the Agent or any Lender to verify the
Borrower’s identity or to comply with any applicable law or regulation, including, without
limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section
5318. .
-87-
§10. FINANCIAL COVENANTS; COVENANTS REGARDING ELIGIBLE BORROWING BASE PROPERTIES.
The Borrower and the Trust, on itstheir own behalf and
on behalf of itstheir respective Subsidiaries,
covenants and agreesjointly and severally covenant and agree
that:
§10.1. Consolidated Total Leverage Ratio. At any
timeall times, (i) from the Closing Date through the fiscal quarter ending
September 30, 2010, 2011, Consolidated Total
Indebtedness as at the last day of the each fiscal quarter shall not exceed
sixty-five percent (65%) of Consolidated Gross Asset Value as of the last day of such fiscal
quarter, (ii) from the fiscal quarter ending December 31, 2010 through the fiscal quarter ending
September 30, 2011, Consolidated Total Indebtedness as at the last day of each fiscal
quarter shall not exceed sixty-two and one half of one percent (62.5%) of
Consolidated Gross Asset Value as of the last day of such, and
(ii) for each fiscal quarter, and (iii) from and ending on
or after the fiscal quarter ending December 31, 2011, Consolidated
Total Indebtedness as at the last day of the applicable fiscal quarter
shall not exceed sixty percent (60%) of Consolidated Gross Asset Value as of the last day of such
fiscal quarter. This covenant shall be tested quarterly as of the last day of the applicable
quarter.
§10.2. Consolidated Debt Yield . AsAt all times, as
tested at the end of anyeach fiscal quarter, (i)
from the Closing Date through the fiscal quarter ending September 30, 2010, the
Consolidated Debt Yield shall not be less than ten percent (10%), (ii) from the fiscal quarter
ending December 31, 2010 through the fiscal quarter ending September 30, 2011, the
Consolidated Debt Yield shall not be less than ten and one half of one percent (10.5%), and
(iii) from and after theii) for each fiscal quarter ending
on or after December 31, 2011, the Consolidated Debt Yield shall not be less than eleven
percent (11%).
§10.3. Fixed Charge Coverage Ratio. AsAt all times,
as tested at the end of anyeach fiscal quarter, the ratio
of (i) Adjusted EBITDA for the four consecutive fiscal quarters ending on the last day of such
fiscal quarter to (ii) Consolidated Fixed Charges for the four consecutive fiscal quarters ending
on the last day of such fiscal quarter must exceed 1.50 to 1.0.
§10.4. Net Worth. AsAt all times, as tested at
the end of anyeach fiscal quarter
xxxxx any other date of measurement, the Consolidated Tangible
Net Worth of the Borrower and its Subsidiaries shall not be less than the sum of (i)
$322,201,600690,289,992 plus (ii) 80% of the aggregate
proceeds received by the Trust (net of fees and expenses customarily incurred in transactions of
such type) in connection with any offering of stock in the Trust, plus (iii) 80% of the
aggregate value of operating units issued by the Borrower in connection with asset or stock
acquisitions (valued at the time of issuance by reference to the terms of the agreement pursuant to
which such units are issued), in each case after the Closing Date and on or prior to the date such
determination of Consolidated Net Worth is made.
-88-
§10.5. Borrowing Base Pool Leverage. AsAt all
times, as tested at the end of anyeach fiscal quarter
xxxxx any other date of measurement, (i) from the Closing Date
through the fiscal quarter ending December 31, 2010, Borrower shall not permit
Consolidated Borrowing Base Indebtedness to exceed sixty-seven and one-half of one percent (67.5%)
of the aggregate Value of Eligible Borrowing Base Properties, (ii) from the fiscal quarter ending
March 31, 2011 through the fiscal quarter ending December 31, 2011, the
Borrower shall not permit Consolidated Borrowing Base Indebtedness as at the last day of
each fiscal quarter to exceed sixty-five percent (65%) of the aggregate Value of Eligible
Borrowing Base Properties, (iii) from the on the last day of such
fiscal quarter, (ii) for each fiscal quarter ending on or after March 31, 2012 through
the fiscal quarter ending December 31, 2012, Borrower shall not permit Consolidated Borrowing Base
Indebtedness as at the last day of each fiscal quarter to exceed sixty-two and one-half of
one percent (62.5%) of the aggregate Value of Eligible Borrowing Base Properties on the last
day of such fiscal quarter, and (iviii) from and after the
fiscal quarter ending March 31, 2013, Borrower shall not permit Consolidated Borrowing Base
Indebtedness as at the last day of each fiscal quarter to exceed sixty percent (60%) of the
aggregate Value of Eligible Borrowing Base Properties. on the last
day of such fiscal quarter.
§10.6. Borrowing Base Pool Debt Service Coverage Ratio.
AsAt all times, as tested at the end of
anyeach fiscal quarter or any other date of measurement, the
ratio of (i) Adjusted Net Operating Income for the applicable quarter, annualized; divided by (ii)
Implied Debt Service for the applicable period quarter,
annualized, shall not be less than (a) from the Closing Date through the fiscal quarter ending
December 31, 2010, 1.40 to 1.00, (b) from the fiscal quarter ending March 31, 2011 through the
fiscal quarter ending December 31, 2011, 1.45 to 1.00, (c) from the fiscal quarter ending March 31,
2012 through the fiscal quarter ending December 31, 2012, 1.50 to 1.00, and (d) from and after the
fiscal quarter ending March 31, 2013, 1.55 to 1.00.
§10.7. Occupancy. Eligible Borrowing Base Properties shall at all
times maintain a stabilized occupancy of more than 80% in the aggregate, provided that (i)
any Eligible Borrowing Base Property acquired after the date hereof during the first half of any
quarter shall be excluded from the foregoing calculation for the fiscal quarter in which it was
acquired and for the immediately following fiscal quarter, and (ii) any Eligible Borrowing Base
Property acquired after the date hereof during the last half of any quarter shall be excluded from
the foregoing calculation for the fiscal quarter in which it was acquired and for the immediately
two following fiscal quarters. [Reserved]
§11. [Reserved.]
§12. CONDITIONS TO THE FIRST ADVANCE. The obligations of any Lender to make the
Term Loan (and to maintain the existing outstanding Term Loan) shall be subject to the satisfaction
of the following conditions precedent on or prior to the Closing Date with, in each instance, the
Agent, acting on behalf of the Lenders, having approved in its sole discretion each matter
submitted to it in compliance with such conditions:
§12.1. Loan Documents. Each of the Loan Documents shall have been duly executed and
delivered by the respective parties thereto and shall be in full force and effect.
-89-
§12.2. Certified Copies of Organization Documents. The Agent shall have received (i)
from the Borrower a copy, certified as of a recent date by a duly authorized officer of the Trust,
in its capacity as general partner of the Borrower, to be true and complete, of the Agreement of
Limited Partnership of FPLP and all other Organizational Documents or other agreements governing
the rights of the partners or other equity owners of the Borrower and each Subsidiary Guarantor,
and (ii) from the Trust a copy, certified as of a recent date by the appropriate officer of the
State of Maryland to be true and correct, of the corporate charter of the Trust, in each case along
with any other organization documents of the Borrower or the Trust and their respective general
partners, as the case may be, and each as in effect on the date of such certification.
§12.3. By-laws; Resolutions. All action on the part of the Borrower, each Subsidiary
Guarantor and the Trust necessary for the valid execution, delivery and performance by the
Borrower, the Subsidiary Guarantors and the Trust of this Agreement and the other Loan Documents to
which any of them is or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Agent shall have been provided to the Agent. The Agent shall
have received from the Trust true copies of its by-laws and the resolutions adopted by its board of
directors or trustees authorizing the transactions described herein and evidencing the due
authorization, execution and delivery of the Loan Documents to which the Trust and/or the Borrower
is a party, each certified by the secretary as of a recent date to be true and complete.
§12.4. Incumbency Certificate; Authorized Signers. The Agent shall have received
from the Trust an incumbency certificate, dated as of the Closing Date, signed by a duly authorized
officer of the Trust, the Borrower and/or each Subsidiary Guarantor, as applicable, and giving the
name of each individual who shall be authorized: (a) to sign, in the name and on behalf of the
Borrower, the Subsidiary Guarantors and the Trust, as the case may be, each of the Loan Documents
to which the Borrower, a Subsidiary Guarantor or the Trust is or is to become a party; (b) to make
the Completed Loan Request and Conversion Requests on behalf of the Borrower and (c) to give
notices and to take other action on behalf of the Borrower, the Subsidiary Guarantors or the Trust,
as applicable, under the Loan Documents.
§12.5. Opinion of Counsel Concerning Organization and Loan Documents. Each of the
Lenders and the Agent shall have received favorable opinions addressed to the Lenders and the Agent
in form and substance reasonably satisfactory to the Lenders and the Agent from
Xxxxxxxxx TeasdaleHogan Lovells LLP and, if any, state
specific local counsel who are reasonably satisfactory to Agent, each as counsel to the Borrower,
each Subsidiary Guarantor, the Trust and their respective Subsidiaries, the Pledged Interests, and
the Loan Documents with respect to applicable law.
§12.6. Guarantees. The Trust Guaranty shall have been duly executed and delivered by
the Trust. The Subsidiary Guaranty shall have been duly executed and delivered by each Subsidiary
Guarantor.
-90-
§12.7. Financial Analysis of Eligible Borrowing Base Properties; Diligence
on Eligible Borrowing Base Properties. Each of the Lenders shall have completed to its
satisfaction a financial analysis of each Eligible Borrowing Base Property. The Agent shall have
received and be satisfied with (i) the Property Level Loan Documents and (ii) such other due
diligence materials it shall request with respect to any prospective Eligible Borrowing Base
Property, including information and documentation with respect to title, survey, insurance, zoning,
permitting and environmental matters.
The Agent shall have received (i) long--form
certifications from government officials evidencing the legal existence, good standing and foreign
qualification of the Borrower, each Subsidiary Guarantor and the Trust, along with a certified copy
of the Organizational Documents filed with any Secretary of State for the Borrower, each Subsidiary
Guarantor and the Trust, all as of the most recent practicable date; and (ii) UCC-11 search results
from the appropriate jurisdictions for the Borrower, each Subsidiary Guarantor and the Trust.
§12.10. 12.8. Proceedings and Documents. All
proceedings in connection with the transactions contemplated by this Agreement, the other Loan
Documents and all other documents incident thereto shall be satisfactory in form and substance to
each of the Lenders and to the Agent’s counsel, and the Agent, each of the Lenders and such counsel
shall have received all information and such counterpart originals or certified or other copies of
such documents as the Agent may reasonably request.
§12.11. 12.9. Fees. The Borrower shall have
paid to the Agent, for the accounts of the Lenders or for its own account, as applicable, all of
the fees and expenses that are due and payable as of the Closing Date in accordance with this
Agreement or any separate fee letter entered into by the Borrower and the Trust and the Agent.
§12.12. 12.10. Closing Certificate. The
Borrower and the Guarantor shall have delivered a Closing Certificate to the Agent, in form and
substance satisfactory to the Agent, including, without limitation, a certification that as of the
Closing Date, neither the Borrower nor any Subsidiary Guarantor is in default under any
Indebtedness.
§12.13. 12.11. Other Matters. The Borrower,
the Subsidiary Guarantors and the Trust shall have delivered to the Agent, in form and substance
satisfactory to the Agent, such other information, documents, certificates and other items
reasonably requested by the Agent.
§13. [RESERVED] .
-91-
§14. EVENTS OF DEFAULT; ACCELERATION; ETC.
§14.1. Events of Default and Acceleration. If any of the following events (“Events
of Default”) shall occur:
(a) Except as permitted hereunder, the Borrower shall fail to pay any principal
of Term Loan A, Term Loan B, Term Loan C or Term Loan D when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity or at any other date
fixed for payment;
(b) the Borrower shall fail to pay any interest on Term Loan A, Term Loan B, Term Loan
C or Term Loan D or any other sums due hereunder or under any of the other Loan Documents or any
fee letter (including, without limitation, amounts due under §8.16) when the same shall become due
and payable, and such failure continues for three (3) days;
(c) the Borrower, any Subsidiary Guarantor, the Trust or any of their respective
Subsidiaries shall fail to comply, or to cause the Trust to comply, as the case may be, with any of
the respective covenants contained in the following: §8.1 (except with respect to principal,
interest and other sums covered by clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive;
§8.12; §8.13; §8.15; §8.19; §8.20; §98.21;
§109 and §1110;
(d) the Borrower, any Subsidiary Guarantor, the Trust or any of their respective
Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any
of the other Loan Documents (other than those specified elsewhere in this §14) and such failure
continues for thirty (30) days after the earlier of the knowledge of any responsible officer of
the Borrower or notice thereof from the Agent;
(e) any representation or warranty made by or on behalf of the Borrower, any Subsidiary
Guarantor, the Trust or any of their respective Subsidiaries in this Agreement or any of the other
Loan Documents shall prove to have been false in any material respect upon the date when made or
deemed to have been made or repeated;
(f) (i) the Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or,
to the extent of Recourse to the Borrower, the Subsidiary Guarantor, the Trust or such Subsidiaries
thereunder, any Partially-Owned Entity or other of their respective Affiliates, shall (x)
fail to pay at maturity, or within any applicable period of grace, any Indebtedness for borrowed
money or credit received or in respect of any Capitalized Leases, which is in excess of (A)
$25,000,000, 60,000,000, either individually or in the
aggregate, if such Indebtedness is Without Recourse and (B)
$5,000,000, 20,000,000, either individually or in the
aggregate, if such Indebtedness is Recourse, or(y) with respect to
any Indebtedness that is Recourse and in excess of $20,000,000, either individually or in the
aggregate, fail to observe or perform any material term, covenant, condition or agreement
contained in any agreement, document or instrument by which it is bound evidencing, securing or
otherwise relating to such Indebtedness or Recourse
-92-
obligations, evidencing or securing borrowed money or credit received or in respect of any
Capitalized Leases for such period of time (after the giving of appropriate notice if required) as
would permit the holder or holders thereof or of any obligations issued thereunder in
excess of (Ai) $25,000,000, either individually or in the aggregate, if such Indebtedness is
without Recourse and (B) $5,000,000, either individually or in the aggregate, if such Indebtedness
is Recourse, to accelerate the maturity thereof or (z) with respect to any
Indebtedness that is Without Recourse and in excess of $60,000,000, either individually or in the
aggregate, (1) fail to pay at maturity, or within any applicable period of grace, any such
Indebtedness or (2) fail to observe or perform any material term, covenant, condition or agreement
contained in any agreement, document or instrument by which it is bound evidencing, securing or
otherwise relating to such Indebtedness or obligations, evidencing or securing borrowed money or
credit received or in respect of any Capitalized Leases for such period of time (after the giving
of appropriate notice if required) that results in the holder or holders thereof or of any
obligations issued thereunder accelerating the maturity thereof; provided, however, that any such
Indebtedness that is Without Recourse shall be treated as Indebtedness that is Recourse to the
extent that the same has become Recourse to the Borrower, the Trust or any of its Subsidiaries upon
the occurrence of an event constituting an exception to non-recourse liability, such as fraud,
misapplication of funds, violations of Environmental Laws, and other similar exceptions, under any
agreement, document or instrument evidencing, securing or otherwise relating to such
Indebtedness; (ii) any Event of Default shall occur under (and as defined in) the Unsecured
Revolver Agreement; or (iii) or under (and as defined in) the 2011
Term Loan Agreement; or (iii) subject to the Borrower’s ability to remove Real Estate Assets from
the Borrowing Base Pool in accordance with the provisions set forth in this §14, any event of
default (beyond any applicable notice and grace periods) shall occur under any Property Level Loan
Document; or
(g) any of FPLPthe Borrower,
anya Subsidiary Guarantor, the Trust or any of their
respective Subsidiaries shall make an assignment for the benefit of creditors, or admit in writing
its inability to pay or generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of
any of FPLPthe Borrower, a Subsidiary Guarantor, the Trust or
any of their respective Subsidiaries or of any substantial part of the properties or assets of any
of such parties or shall commence any case or other proceeding relating to any of
FPLPthe Borrower, a Subsidiary Guarantor, the Trust or any of
their respective Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or shall take any action to authorize or in furtherance of any of the
foregoing, or if any such petition or application shall be filed or any such case or other
proceeding shall be commenced against any of FPLPthe Borrower,
a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries and (i) any of
FPLPthe Borrower, a Subsidiary Guarantor, the Trust or any of
their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence
therein or (ii) any such petition, application, case or other proceeding shall continue
undismissed, or unstayed and in effect, for a period of forty-five (45)
dayssixty (60) days provided that the foregoing, to the extent applicable solely
to one or more Subsidiaries of FPLP to which no more than 5% (individually and in the aggregate) of
the most recently reported Consolidated Gross Asset Value is attributable, shall not be an Event of
Default hereunder so long as no motion to consolidate the Borrower, the Trust or any other
Subsidiaries has been made;
-93-
(h) a decree or order is entered appointing any trustee, custodian, liquidator or
receiver or adjudicating any of FPLPthe Borrower, a Subsidiary
Guarantor, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a
petition in any such case or other proceeding, or a decree or order for relief is entered in
respect of any of FPLPthe Borrower, a Subsidiary Guarantor,
the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy
laws as now or hereafter constituted provided that the foregoing, to the extent applicable
solely to one or more Subsidiaries of FPLP to which no more than 5% (individually and in the
aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, shall not
be an Event of Default hereunder so long as no motion to consolidate the Borrower, the Trust or any
other Subsidiaries has been made at any time prior thereto or in connection therewith;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than
thirty (30) days, whether or not consecutive, any uninsured final judgment against any of
FPLPthe Borrower, a Subsidiary Guarantor, the Trust or any of
their respective Subsidiaries that, with other outstanding uninsured final judgments, undischarged,
unsatisfied and unstayed, against any of such parties exceeds in the aggregate
$2,000,0005,000,000; provided that the foregoing, to the extent
applicable solely to one or more Subsidiaries of FPLP to which no more than 5% (individually and in
the aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, it
shall not be an Event of Default hereunder so long as neither the Borrower, the Trust or any
Subsidiaries not meeting the de minimus test above are liable for such judgments;
(j) any of the Loan Documents or any material provision of any Loan Document shall be
canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or
with the express prior written agreement, consent or approval of the Agent, or any action at law,
suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of
the Loan Documents shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or
any of their Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall make a determination
that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan
Documents is illegal, invalid or unenforceable as to any material terms thereof; or the Agent shall
fail to have a perfected first-priority security interest in any of the Collateral; or
(k) any “Event of Default” or default (after notice and expiration of any
period of grace, to the extent provided, as defined or provided in any of the other
Loan Documents, shall occur and be continuinghas occurred;
-94-
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have
occurred and the Majority Lenders shall have determined in their reasonable discretion that such
event reasonably could be expected to result in liability of the Borrower or any of its
Subsidiaries or the Trust or any of its Subsidiaries or any ERISA Affiliate of any such entity
to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$2,000,000 and5,000,000 or such event in the
circumstances occurring reasonably could constitute grounds for the termination of
such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States
District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have
been appointed by the United States District Court to administer such Plan; or the PBGC shall have
instituted proceedings to terminate such Guaranteed Pension Plan; or with respect to any
Multiemployer Plan, the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries
or any ERISA Affiliate of any such entity shall have become subject to a withdrawal liability (or
with the passage of time will become subject to a withdrawal liability) in an aggregate amount
exceeding $5,000,000;
(m) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing
Base Pool in accordance with the provisions set forth below in this §14, the failure of any of the
Real Estate Assets being included from time to time as part of the Borrowing Base Pool to comply
with any of the conditions set forth in the definition of Eligible Borrowing Base Properties;
(n) the occurrence of any transaction in which any “person” or “group”
(within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes
the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934),
directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding
of the Trust ordinarily entitled to vote in the election of directors, empowering such “person” or
“group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did
not have such power before such transaction; or during any twelve-month period on or after the
Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of
the Trust (together with any new directors whose election by the Board of Trustees or whose
nomination for election by the shareholders of the Trust was approved by a vote of at least a
majority of the members of the Board of Trustees then in office who either were members of the
Board of Trustees at the beginning of such period or whose election or nomination for election was
previously so approved) ceased for any reason to constitute a majority of the members of the Board
of Trustees of the Trust then in office; there occurs any Change of Control;
or
(o) without limitation of the other provisions of this §14.1, the Trust shall at any
time fail to be the sole general partner of FPLP (or shall enter into any agreement to permit any
other Person to acquire a general partner interest in FPLP) or shall at any time be in
contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3
(including, without limitation, the last paragraph of §9.3); or
-95-
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon shall, at the direction of the Majority Lenders, or may, with
the requestconsent of the Majority Lenders
shall, declare all amounts owing with respect to this Agreement, the Notes and the
other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower, each Subsidiary Guarantor, the Trust and each of their respective
Subsidiaries; provided that in the event of any Event of Default specified in §14.1(g) or
14.1(h), all such amounts shall become immediately due and payable automatically and without any
requirement of notice from any of the Lenders or the Agent or action by the Lenders or the Agent.
Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of
Default arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base Pool at
any particular time of reference, if such Default or Event of Default is capable of being cured by
the exclusion of such Real Estate Asset from the Borrowing Base Pool in accordance with, and
subject to, §8.13 and fromwith all other covenant calculations
under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to
submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form
of Exhibit C hereto evidencing compliance with the covenants set forth in §10 (with
calculations evidencing such compliance after excluding from Adjusted Net Operating Income all of
the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the
Borrowing Base Pool) and with the Borrowing Base Property Conditions, and otherwise certifying
that, after giving effect to the exclusion of such Real Estate Asset from the Borrowing Base Pool,
no Default or Event of Default will be continuing.
§14.2. Default under Property Level Debt. The Borrower, for itself and on behalf of
each of its Subsidiaries, hereby agrees that that upon the occurrence and during the continuation
of an Event of Default, the Agent shall have the right, but not the obligation, to pay any sums or
to take any action, to the extent that the applicable Subsidiary Guarantor is permitted to take
such action under the terms of the Property Level Loan Documents, which the Agent deems necessary
or advisable to cure any default or event of default under the Property Level Loan Documents
(whether or not the Subsidiary Guarantors are undertaking efforts to cure such default or event of
default under the Property Level Loan Documents or an Event of Default hereunder), and such payment
or such action is hereby authorized by the Borrower, for itself and on behalf of each of its
Subsidiaries, and any sum so paid and any expense incurred by the Agent in taking any such action
shall be evidenced by this Agreement and secured by the Security Documents and shall be immediately
due and payable by Borrower to the Agent with interest at the rate for overdue amounts set forth in
§4.9 until paid. The Agent shall be authorized to take such actions upon the written assertion by
any holder of any of the Property Level Loan Documents of the existence of such default or event of
default without any duty to inquire or determine whether such default or event of default exists.
The Borrower shall cause the Subsidiary Guarantors to permit the Agent to enter upon the Eligible
Borrowing Base Properties for the purpose of curing any actual or alleged default or event of
default under the Property Level Loan
-96-
Documents or hereunder. The Borrower, for itself and on behalf of each of its Subsidiaries, hereby
transfers and assigns to the Agent any excess proceeds arising from any foreclosure or sale under
power pursuant to the Property Level Loan Documents, and the Borrower, for itself and on behalf of
each of its Subsidiaries, hereby authorizes and directs the holder or holders of the Property Level
Loan Documents to pay such excess proceeds directly to the Agent up to the amount of the
obligations owed to the Agent and the Lenders under the Loan Documents.
§14.3. Remedies. In the event that one or more Events of Default shall have occurred
and be continuing, whether or not the Lenders shall have accelerated the maturity of the Term Loan
pursuant to §14.1, the Majority Lenders may direct the Agent to proceed to protect and enforce the
rights and remedies of the Agent and the Lenders under this Agreement, the Notes, any or all of the
other Loan Documents or under applicable law by suit in equity, action at law or other appropriate
proceeding (including for the specific performance of any covenant or agreement contained in this
Agreement or the other Loan Documents or any instrument pursuant to which the Obligations are
evidenced and, to the full extent permitted by applicable law, the obtaining of the ex
parte appointment of a receiver), and, if any amount shall have become due, by declaration or
otherwise, proceed to enforce the payment thereof or any other legal or equitable right or remedy
of the Agent and the Lenders under the Loan Documents or applicable law. No remedy herein
conferred upon the Lenders or the Agent or the holder of any Note is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or under any of the other Loan Documents or now or hereafter existing
at law or in equity or by statute or any other provision of law.
§14.4. Application of Funds
After the exercise of remedies provided for herein (or after the Loans have automatically
become immediately due and payable), any amounts received on account of the Obligations shall,
subject to the provisions of §4.11, be applied by the Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to
the Agent and amounts payable under §§4.4, 4.5, 4.6, 4.8 and 17) payable to the Agent in its
capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders (including
fees, charges and disbursements of counsel to the respective Lenders and amounts payable under
§§4.4, 4.5, 4.6, 4.8 and 17), ratably among them in proportion to the respective amounts described
in this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them;
-97-
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Lenders in proportion to the respective amounts described
in this clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrower or as otherwise required by law.
§15. SECURITY INTEREST AND SET-OFF.
§15.1 Security Interest. Borrower hereby grants to the Agent, on
behalf of and for the benefit of the Lenders, and to each Lender, a lien, security interest and
right of setoff as security for all liabilities and obligations to the Lenders, whether now
existing or hereafter arising, upon and against all deposits, credits, collateral and property, now
or hereafter in the possession, custody, safekeeping or control of the Agent or any Lender or any
entity under the control of KeyCorp. and its successors and assigns, or in transit to any of
them. [Reserved]
§15.2 Set-Off and Debit. (i) If any Event of Default or other event which would
entitle the Agent to accelerate the Term Loan occurs, or (ii) at any time, whether or not any
Default or Event of Default exists, in the event any attachment, trustee process, garnishment, or
other levy or lien is, or is sought to be, imposed on any property of the Borrower or
a, a Subsidiary Guarantor or an Unsecured Revolver Subsidiary Guarantor;
then, in any such event, any such deposits, balances or other sums credited by or due from the
Agent or any Lender, or from any such affiliate of the Agent or any Lender, to the
Borrower or a, a Subsidiary Guarantor or an Unsecured Revolver
Subsidiary Guarantor may to the fullest extent not prohibited by applicable law at any time or from
time to time, without regard to the existence, sufficiency or adequacy of any other collateral, and
without notice or compliance with any other condition precedent now or hereafter imposed by
statute, rule of law or otherwise, all of which are hereby waived, be set off, debited and
appropriated, and applied by the Agent or any Lender, as the case may be, against any or all of the
Obligations irrespective of whether demand shall have been made and although such Obligations may
be unmatured, in such manner as the Agent or the applicable Lender in its sole and absolute
discretion may determine. Within five (5) Business Days of making any such set off, debit or
appropriation and application, the Agenteach Lender agrees to
notify the Agent and the Borrower thereof (or in the case of any such set off, debit or
appropriation and application by the Agent, the Agent agrees to notify the Borrower thereof),
provided that the failure to give such notice shall not affect the validity of such set
off, debit or appropriation and application. ANY AND ALL RIGHTS TO REQUIRE THE AGENT OR ANY LENDER
TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF
THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees
with each other Lender that (a) if an amount to be set off is to be applied to indebtedness of the
Borrower to such Lender, other than the obligations evidenced by the Note held
byObligations owing to such Lender, such amount shall be applied ratably to
-98-
such other indebtedness and to the obligations evidenced by the Note held byObligations owing to such Lender, and (b) if such Lender shall receive from the
Borrower, whether by voluntary payment, exercise of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by the Note held byObligations owing
to such Lender by proceedings against the Borrower or a, a Subsidiary
Guarantor or an Unsecured Revolver Subsidiary Guarantor at law or in equity or by proof thereof
in bankruptcy, reorganization liquidation, receivership or similar proceedings, or otherwise, and
shall retain and apply to the payment of the Note held byObligations owing
to such Lender any amount in excess of its ratable portion of the payments received by all of
the Lenders with respect to the Note held byObligations owing to all of
the Lenders, such Lender will make such disposition and arrangements with the other Lenders with
respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation
or otherwise as shall result in each Lender receiving in respect of the Note held
byObligations owing to it its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is thereafter recovered from
such Lender, such disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
§15.3 Right to Freeze. The Agent and each of the Lenders shall also have the right, at
its option, upon the occurrence of any event which would entitle the Agent or any Lender to set off
or debit as set forth in §15.2, to freeze, block or segregate any such deposits, balances and other
sums so that the Borrower and the Subsidiary Guarantors may not access, control or draw upon the
same. [Reserved]
§15.4 Additional Rights. The rights of the Agent, the Lenders and each affiliate of
Agent and each of the Lenders under this Section 15 are in addition to, and not in limitation of,
other rights and remedies, including other rights of set off, which the Agent or any Lender may
have.
§16. THE AGENT.
§16.1. Authorization. (a) The Agent is authorized to take such action on behalf of
each of the Lenders and to exercise all such powers as are hereunder and under any of the other
Loan Documents and any related documents delegated to the Agent, together with such powers as are
reasonably incident thereto, provided that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the Agent. The relationship
between the Agent and the Lenders is and shall be that of agent and principal only, and nothing
contained in this Agreement or any of the other Loan Documents shall be construed to constitute the
Agent as a trustee or fiduciary for any Lender.
(b) The Borrower, without further inquiry or investigation, shall, and is hereby authorized by
the Lenders to, assume that all actions taken by the Agent hereunder and in connection with or
under the Loan Documents are duly authorized by the Lenders. The Lenders shall notify Borrower of any successor to Agent by a writing signed by Majority
Lenders, which successor shall be reasonably acceptable to the Borrower so long as no Default or
Event of Default has occurred and is continuing. The Borrower acknowledges that any Lender which
acquires KeyBank is acceptable as a successor to the Agent.
-99-
§16.2. Employees and Agents. The Agent may exercise its powers and execute its duties
by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons as the Agent in its sole discretion
may reasonably determine, and all reasonable fees and expenses of any such Persons shall be paid by
the Borrower.
§16.3. No Liability. Neither the Agent, nor any of its shareholders, directors,
officers or employees nor any other Person assisting them in their duties nor any agent or employee
thereof, shall be liable for any waiver, consent or approval given or any action taken, or omitted
to be taken, in good faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any oversight or error
of judgment whatsoever, except that the Agent may be liable for losses due to its willful
misconduct or gross negligence, as finally determined by a court of competent jurisdiction.
§16.4. No Representations. The Agent shall not be responsible for the execution or
validity or enforceability of this Agreement, the Notes or any of the other Loan Documents or for
the validity, enforceability or collectibilitycollectability of any such
amounts owing with respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Trust or the Borrower or any of their
respective Subsidiaries, or be bound to ascertain or inquire as to the performance or observance of
any of the terms, conditions, covenants or agreements in this Agreement or the other Loan
Documents. The Agent shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower, a Subsidiary Guarantor, an Unsecured Revolver
Subsidiary Guarantor or the Trust or any holder of any of the Notes shall have been duly authorized
or is true, accurate and complete. The Agent has not made nor does it now make any representations
or warranties, express or implied, nor does it assume any liability to the Lenders, with respect to
the credit worthiness or financial condition of the Borrower or a, a
Subsidiary Guarantor, an Unsecured Revolver Subsidiary Guarantor or any of their respective
Subsidiaries or the Trust or any of the Subsidiaries or any tenant under a Lease or any other
entity. Each Lender acknowledges that it has, independently and without reliance upon the Agent or
any other Lender, and based upon such information and documents as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement.
-100-
§16.5. Payments.
(a) A payment by the Borrower to the Agent hereunder or any of the other Loan Documents for
the account of any Lender shall constitute a payment to such Lender on the date received, if before
1:00 p.m. (Cleveland, Ohio time), and if after 1:00 p.m. (Cleveland, Ohio time), on the next
Business Day. The Agent agrees to distribute to each Lender such Lender’s pro rata share
of payments received by the Agent for the accounts of all the Lenders, as provided herein or in any
of the other Loan Documents. All such payments by the Agent to the Lenders shall be made on the
date received, if before 1:00 p.m., and if after 1:00 p.m., on the next Business Day.
(b) If in the reasonable opinion of the Agent the distribution of any amount received by it in
such capacity hereunder, under the Notes or under any of the other Loan Documents might involve it
in material liability, it may refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction, provided that the Agent
shall invest any such undistributed amounts in overnight obligations on behalf of the Lenders and
interest thereon shall be paid pro rata to the Lenders. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
-101-
§16.6. Holders of Notes. The Agent may deem and treat the payee of any Notes as the
absolute owner or purchaser thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder, assignee or transferee.
§16.7. Indemnity. The Lenders ratably and severally agree hereby to indemnify and
hold harmless the Agent and its Affiliates from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including any expenses for
which the Agent has not been reimbursed by the Borrower as required by §17), and liabilities of
every nature and character arising out of or related to this Agreement, the Notes, or any of the
other Loan Documents or the transactions contemplated or evidenced hereby or thereby, or the
Agent’s actions taken hereunder or thereunder, except to the extent that any of the same shall be
directly caused by the Agent’s willful misconduct or gross negligence, as finally determined by a
court of competent jurisdiction.
§16.8. Agent as Lender. In its individual capacity as a Lender, KeyBank shall have
the same obligations and the same rights, powers and privileges in respect to its Commitment and
the Term Loan made by it, and as the holder of any of the Notes, as it would have were it not also
the Agent.
§16.9. Notification of Defaults and Events of Default. Each Lender hereby agrees
that, upon learning of the existence of a Default or an Event of Default, it shall (to the extent
notice has not previously been provided) promptly notify the Agent thereof. The Agent hereby
agrees that upon receipt of any notice under this §16.9 it shall promptly notify the other Lenders
of the existence of such Default or Event of Default.
§16.10. Duties in Case of Enforcement. In the case one or more Events of Default
have occurred and shall be continuing, and whether or not acceleration of the Obligations shall
have occurred, the Agent shall, at the request, or may, upon the consent, of the Majority Lenders,
and provided that the Lenders have given to the Agent such additional indemnities and assurances
against expenses and liabilities as the Agent may reasonably request, proceed to enforce the
provisions of this Loan Agreement and the other Loan Documents and the exercise of any other legal
or equitable rights or remedies as it may have hereunder or under any other Loan Document or
otherwise by virtue of applicable law, or to refrain from so acting if similarly requested by the
Majority Lenders. The Agent shall be fully protected in so acting or refraining from acting upon
the instruction of the Majority Lenders, and such instruction shall be binding upon all the
Lenders. The Majority Lenders may direct the Agent in writing as to the method and the
extent of any such foreclosure, sale or other disposition or the exercise of any other right or
remedy, the Lenders hereby agreeing to severally indemnify and hold the Agent harmless from all
costs and liabilities incurred in respect of all actions taken or omitted in accordance with such
direction, provided that the Agent need not comply with any such direction to the extent
that the Agent reasonably believes the Agent’s compliance with such direction may expose the Agent
to liability or be contrary to the Loan Documents or applicable law. The Agent may, in its
discretion but without obligation, in the absence of direction from the Majority
-102-
Lenders, take such
interim actions as it believes reasonably necessary to preserve the rights of the Lenders
hereunder, including but not limited to petitioning a court for injunctive relief or appointment of
a receiver. Each of the Lenders acknowledges and agrees that, except for any rights of set-off
pursuant to and in accordance with §15.2 hereof, no individual Lender may separately enforce or
exercise any of the provisions of any of the Loan Documents, including without limitation the
Notes, other than through the Agent. The Agent shall advise the Lenders of all such action taken
by the Agent.
§16.11. Successor Agent. KeyBank, or any successor Agent, may resign as Agent at any
time by giving at least 30 days prior written notice thereof to the Lenders and to the Borrower.
Any such resignation shall be effective upon appointment and acceptance of a successor Agent, as
hereinafter provided. Upon any such resignation, or removal pursuant to the
last sentence of this § 16.11, the Majority Lenders shall have the right to appoint a successor
Agent, which is a Lender under this Agreement, provided that so long as no Default or Event
of Default has occurred and is continuing the Borrower shall have the right to approve any
successor Agent, which approval shall not be unreasonably withheld. If, in the case of a
resignation by the Agent, no successor Agent shall have been so appointed by the Majority Lenders
and approved by the Borrower, and shall have accepted such appointment, within thirty (30) days
after the retiring Agent’s giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint any one of the other Lenders as a successor Agent. The Borrower
acknowledges that any Lender which acquires KeyBank is acceptable as a successor Agent. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from all further duties and obligations
as Agent under this Agreement. After any Agent’s resignation hereunder as Agent, the provisions of
this §16 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement. The Agent agrees that it shall not assign any of its rights or
duties as Agent to any other Person. The Agent may be removed at the direction of the Majority
Lenders in the event of a final judicial determination (in which the Agent had an opportunity to be
heard) that the Agent had acted in a grossly negligent manner or in willful misconduct.
§16.12. Notices. Any notices or other information required hereunder to be provided
to the Agent (with copies to the Agent for each Lender) shall be promptly forwarded by the Agent to
each of the Lenders.
§17. EXPENSES AND INDEMNIFICATION.
(a) §17.
EXPENSESExpenses. The Borrower agrees to pay (a) the reasonable costs
of producing and reproducing this Agreement, the other Loan Documents and the other agreements and
instruments mentioned herein, (b) the reasonable fees, expenses and disbursements of the
Agent’si) the reasonable and documented out-of-pocket fees, expenses and disbursements
incurred by the Agent (including the reasonable and invoiced out-of-pocket fees, expenses and
disbursements of outside counsel or any local counsel to the
-103-
Agent
incurred) in connection with the preparation,
administration, negotiation or interpretation of the Loan Documents and other instruments mentioned herein, each closing
hereunder, and amendments, modifications, approvals, consents or waivers hereto or hereunder,
(c) the fees, expenses and disbursements of the Agent incurred by the Agent in connection
with the preparation, administration or interpretation of the Loan Documents and other instruments
mentioned herein, including, without limitation, the costs incurred by the Agent in connection with
its inspection of the Eligible Borrowing Base Properties, and, without double-counting amounts
under clause (b) above, the fees and disbursements of the Agent’s counsel in preparing the
documentation, (d) the fees, costs, expenses and disbursements of the Agent and its Affiliates
incurred in connection with the syndication and/or participations of the Term Loan (whether
occurring before or after the closing hereunder), including, without limitation, reasonable legal
fees, travel costs, costs of preparing syndication materials and photocopying costs, (e) all
reasonable ii) all reasonable and documented out-of-pocket fees, expenses and
disbursements (including reasonable and documented out-of-pocket attorneys’
fees and costs, which attorneys may be employees of any Lender or the Agent,
expenses and disbursements, and the fees and costs of engineers, appraisers, surveyors,
investment bankers, or other experts retained by any Lender or the Agent in connection with
any such enforcement proceedings) incurred by any Lender or the Agent in
connection with (iA) the enforcement of or preservation of rights under
any of the Loan Documents against the Borrower, any Subsidiary Guarantor or any of
theirits Subsidiaries or the Trust or the administration thereof after the
occurrence and during the continuance of a Default or Event of Default (including, without
limitation, expenses incurred in any restructuring and/or “workout” of the Term
LoanLoans), and (iiB) any litigation, proceeding or
dispute whether arising hereunder or otherwise, in any way related to any Lender’s or the
Agent’s relationship with the Borrower, any Subsidiary Guarantor or any of their respective
Subsidiaries or the Trust, (f) all reasonable fees, expenses and disbursements of the Agent
incurred in connection with UCC searches and filings, UCC terminations or mortgage discharges, or
otherwise in connection with the Collateral, and (g) allarising out of, in connection
with or as a result of this Agreement or the financing contemplated hereby; provided, however, that
in connection with any one such action or any separate but substantially similar or related actions
in the same jurisdiction, in each case described in this clause (ii), the Borrower shall not be
liable for the fees and expenses of more than one counsel to the Agent and the Lenders (along with
one local counsel in each applicable jurisdiction), unless there shall exist an actual
conflict of interest among such Persons, and in such case, not more than one additional counsel
to the affected parties (along with one additional local counsel in each applicable jurisdiction),
and (iii) all reasonable and documented out-of-pocket costs incurred by the Agent in the future
in connection with (x) an inspection pursuant to §8.10, but only if the Person acting as Agent
hereunder is not also the “Agent” (or such other similar term as used therein) under the Unsecured
Revolver Agreement or the 2011 Term Loan Agreement, and (y) its inspection of the Eligible
Borrowing Base Properties (or any proposed Eligible Borrowing Base Property) or with the addition
of any Eligible Borrowing Base Property. The covenants of this §17 shall survive the
repayment of the amounts owing under the Notes and this Agreement and the termination of this
Agreement and the obligations of the Lenders hereunder.
-104-
(b) §18. INDEMNIFICATIONIndemnification. The Borrower agrees to indemnify and
hold harmless the Agent and each of the Lenders and the shareholders, directors, agents,
officers, subsidiaries and affiliates of the Agent and each of the Lenders, the
Arranger, the Lenders and each of their respective Related Parties (each, an “Indemnitee”) from
and against any and all claims, actions and suits, whether groundless or otherwise, and from and
against any and all liabilities, losses (including amounts, if any, owing to any Lender
pursuant to §§4.4, 4.5, 4.6 and 4.8), settlement payments, obligations, damages and
expenses of every nature and character arising out of, in connection therewith,
arising outwith, or as a result of this Agreement or any of the other Loan
Documents or the transactions contemplated hereby or thereby or which otherwise arise in connection
with thethis financing, including, without limitation,
(ai) any actual or proposed use by the Borrower or any of its Subsidiaries
of the proceeds of any of the Term Loans, (bii)
(a) the Borrower or any of its Subsidiaries entering into or performing this Agreement or any
of the other Loan Documents, or (c or (b) the Agent or any Lender entering
into or exercising any of its rights or remedies under this Agreement or any of the other Loan
Documents; provided, however, that for clarity, this clause (ii)(b) shall not apply to expenses
incurred by any Lender unless incurred by such Lender as an Indemnitee as a result of a third party
claim, action or suit, or (iii) pursuant to §8.16, in each case including, without limitation,
the reasonable fees and disbursements of counsel and allocated costs of internal counsel incurred in connection with any such investigation,
litigation or other proceeding(including, without limitation, any proceeding under any Debtor
Relief Law), provided, however, that the Borrower shall not be obligated under this
§1817(b) to indemnify any Person for (x) liabilities arising from
such Person’s own gross negligence, willful misconduct or breach of this Agreement, as finally
determined by a court of competent jurisdiction. In litigation, or the preparation
therefor, the Borrower shall be entitled to select counsel reasonably acceptable to the Majority
Lenders, and the Agent (as approved by the Majority Lenders) shall be entitled to select their own
supervisory counsel, and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of each such counsel. Prior to any settlement of any such
litigation by the Lenders, the Lenders shall provide the Borrower and the Trust with notice and an
opportunity to address any of their concerns with the Lenders, and the Lenders shall not settle any litigation without first
obtaining Borrower’s consent thereto, which consent shall not be unreasonably withheld or delayed,
provided that such consent shall not be required at any time that an Event of Default has
occurred and is continuing, (y) amounts constituting Excluded Taxes or (z) result from
any dispute solely among the Indemnitees. If and to the extent that the obligations of the
Borrower under this §1817(b) are unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The indemnification provisions of
this §18 shall survive the repayment of the amounts owing under the Notes and this
Agreement and the termination of this Agreement and the obligations of the Lenders hereunder and
shall continue in full force and effect as long as the possibility of any such claim, action, cause
of action or suit exists§17(b) shall apply to any indemnity proceeding arising during
the pendency of any bankruptcy proceeding filed by or against the Borrower and/or any of its
Subsidiaries.
-105-
(c) Limitation. It is understood that, with respect to any particular action, suit,
proceeding or investigation subject to indemnification hereunder, the Borrower shall not be
required to reimburse, or indemnify and hold harmless for, the reasonable and documented legal fees
and expenses of more than one outside counsel (in addition to up to one local counsel in each
applicable local jurisdiction) for all Indemnitees that are the subject of such action, suit,
proceeding or investigation unless there shall exist an actual conflict of interest, in which case
the Borrower shall be required to reimburse, or indemnify and hold harmless for, the reasonable and
documented legal fees and expenses of one additional counsel to the affected parties (along with
one additional local counsel in each applicable jurisdiction).
(d) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsections (a) or (b) of this §17 to be paid by it to
the Agent or any Related Party of the Agent, each Lender severally agrees to pay to the Agent or
such Related Party, as the case may be, such Lender’s pro rata portion (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agent in its capacity as such,
or against such Related Party acting for the Agent in connection with such capacity.
(e) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable
law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby or thereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee shall
be liable for any damages arising from the use by unintended recipients of any information or other
materials distributed to such unintended recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this Agreement or
the other Loan Documents or the transactions contemplated hereby or thereby other than for direct
or actual damages resulting from the fraud, gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.
(f) Payments. All amounts due under this §17 shall be payable not later than fifteen (15)
Business Days after receipt by Borrower of a reasonably detailed invoice therefor.
(g) Survival. The agreements in §17 shall survive the resignation or removal of the
Agent, the replacement of any Lender, the termination of the Commitments in whole or in part, the
termination of this Agreement and the repayment, satisfaction or discharge of all the
Obligations.
§18. [RESERVED].
-106-
§19. SURVIVAL OF COVENANTS, ETC. All covenants, agreements, representations and
warranties made herein, in the Notes, in any of the other Loan Documents or in any documents or
other papers delivered by or on behalf of the Borrower, any Subsidiary Guarantor, any Unsecured
Revolver Subsidiary Guarantor or any of their respective Subsidiaries or the Trust pursuant
hereto shall be deemed to have been relied upon by the Lenders and the Agent, notwithstanding any
investigation heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of the Term Loan as herein contemplated, and shall continue in full force and effect so
long as any amount due under this Agreement or the Notes or any of the other Loan Documents remains
outstanding. The indemnification obligations of the Borrower provided herein and in the other Loan
Documents shall survive the full repayment of amounts due and the termination of the obligations of
the Lenders hereunder and thereunder to the extent provided herein and therein. All statements
contained in any certificate or other paper delivered to any Lender or the Agent at any time by or
on behalf of the Borrower, any Subsidiary Guarantor, any Unsecured Revolver Subsidiary
Guarantor or any of their respective Subsidiaries or the Trust pursuant hereto or in connection
with the transactions contemplated hereby shall constitute representations and warranties by the
Borrower, such Subsidiary Guarantor, such Unsecured Revolver Subsidiary Guarantor or such
Subsidiary or the Trust hereunder.
§20. ASSIGNMENT; PARTICIPATIONS; ETC.
§20.1. Conditions to Assignment by Lenders. Except as provided herein, each Lender
may assign to one or more Eligible Assignees all or a portion (in a minimum amount of $5,000,000)
of its interests, rights and obligations under this Agreement (including all or a portion of its
Commitment Percentage and Commitment and the same portion of the Loans at the time owing to it
and the Notes held by it); provided that (a) other than during the continuance of an
Event of Default, the Agent and the Borrower each shall have the right to approve any assignment to an Eligible Assignee, which approval
shall not be unreasonably withheld or delayed, (b) subject to the provisions of
§2.7, each Lender shall have at all times an amount of its Commitment of not less than
$5,000,000 unless otherwise consented to by the Agent and (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as hereinafter defined), an
assignment and assumption, substantially in the form of Exhibit D hereto (an “Assignment
and Assumption”), together with any Notes subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified in each Assignment
and Assumption, which effective date shall be at least two (2) Business Days after the execution
thereof unless otherwise agreed or accepted by the Agent (provided any assignee has assumed
the obligation to fund any outstanding Libor Rate Loans), (i) the assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and Assumption, have the rights and
obligations of a Lender hereunder and thereunder, and (ii) the assigning Lender shall, to the
extent provided in such assignment and upon payment to the Agent of the registration fee referred
to in §20.3, be released from its obligations under this Agreement. Any such Assignment and
Assumption shall run to the benefit of the Borrower and a copy of any such Assignment and
Assumption shall be delivered by the Assignor to the Borrower.
-107-
Notwithstanding the provisions of subclause (a) of the preceding paragraph, any Lender may,
without the consent of the Borrower, make an assignment otherwise permitted hereunder to (x)
another Lender, and (y) an Affiliate of such Lender, provided that such Affiliate is an
Eligible Assignee. In no event may any Lender assign or participate (under §20.5) all or any
portion of its Loans or Commitment to the Borrower or any of its Subsidiaries or Affiliates.
§20.2. Certain Representations and Warranties; Limitations; Covenants. By executing
and delivering an Assignment and Assumption, the parties to the assignment thereunder confirm to
and agree with each other and the other parties hereto as follows: (a) other than the
representation and warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto; (b) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower, any Subsidiary Guarantor, any Unsecured Revolver Subsidiary Guarantor or
their respective Subsidiaries or the Trust or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by the Borrower, any Subsidiary
Guarantor, any Unsecured Revolver Subsidiary Guarantor or their respective Subsidiaries or
the Trust or any other Person primarily or secondarily liable in respect of any of the Obligations
of any of their obligations under this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (c) such assignee confirms that it has received a copy of this Agreement, together with copies of the
most recent financial statements referred to in §7.4 and §8.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Assumption; (d) such assignee will, independently and without reliance upon the
assigning Lender, the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (e) such assignee represents and warrants that it is an
Eligible Assignee; (f) such assignee appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with such powers as are reasonably
incidental thereto; (g) such assignee agrees that it will perform in accordance with their terms
all of the obligations that by the terms of this Agreement are required to be performed by it as a
Lender; and (h) such assignee represents and warrants that it is legally authorized to enter into
such Assignment and Assumption.
§20.3. Register. The Agent shall maintain a copy of each Assignment and Assumption
delivered to it and a register or similar list (the “Register”) for the recordation
-108-
of the names and addresses of the Lenders and the Commitment Percentages of, and principal amount
of the Term Loan owing to, the Lenders from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and the Lenders at any
reasonable time and from time to time upon reasonable prior notice. Except in the case of an
assignment by a Lender to its Affiliate, upon each such recordation, the assigning Lender agrees to
pay to the Agent a registration fee in the sum of $3,5002,500
and all legal fees and expenses incurred by the Agent in connection with such assignment.
§20.4. New Notes. Upon its receipt of an Assignment and Assumption executed by the
parties to such assignment, together with each Note subject to such assignment, the Agent shall (a)
record the information contained therein in the Register, and (b) give prompt notice thereof to the
Borrower and the Lenders (other than the assigning Lender). Unless done simultaneously with the
Assignment and Assumption, within two (2) Business Days after receipt of such notice, the Borrower,
at its own expense and if requested in such notice, shall execute and deliver to the Agent,
in exchange for each surrendered Note, a new Note to the order of such Eligible Assignee in an
amount equal to the amount assumed by such Eligible Assignee pursuant to such Assignment and
Assumption and, if the assigning Lender has retained some portion of its obligations hereunder, a
new Note to the order of the assigning Lender in an amount equal to the amount retained by it
hereunder. Such new Notes shall provide that they are replacements for the surrendered Notes,
shall be in an aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and Assumption and shall
otherwise be in substantially the form of the assigned Notes. The surrendered Notes shall be
canceled and returned to the Borrower.
§20.5. Participations. Each Lender may sell participations to one or more lending
institutions or other entities in all or a portion of such Lender’s rights and obligations under
this Agreement and the other Loan Documents; provided that (a) each such participation
shall be in an amount of not less than $5,000,000, (b) any such sale or participation shall not
affect the rights and duties of the selling Lender hereunder to the Borrower and the Agent and the
Lender shall continue to exercise all approvals, disapprovals and
other functions of a Lender, (c) subject to §2.11 in the case of Permitted Amendments, the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers, amendments or
modifications of, or approvals under, the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the principal of or the interest rate on the Term
Loan (other than a waiver of default interest and, if applicable, changes in calculation of any
financial covenant or related definitions that may indirectly affect pricing), extend the term
or increase the amount of the Commitment of such Lender as it relates
to such participant in a
manner not otherwise permitted under the Loan Documents, reduce the amount of any fees to which
such participant is entitled or extend any regularly scheduled payment date for principal or
interest in a manner not otherwise permitted under the Loan Documents, and (d) no
participant shall have the right to grant further participations or assign its rights,
obligations or interests under such participation to other Persons without the prior written
consent of the Agent, which consent shall not be unreasonably withheld.
-109-
§20.6. Pledge by Lender. Notwithstanding any other provision of this Agreement, any
Lender at no cost to the Borrower may at any time pledge all or any portion of its interest and
rights under this Agreement (including all or any portion of its NoteNotes) to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve
Act, 12 U.S.C. §341. No such pledge or the enforcement thereof shall release the pledgor Lender
from its obligations hereunder or under any of the other Loan Documents.
§20.7. No Assignment by Borrower. The Borrower shall not assign or transfer any of
its rights or obligations under any of the Loan Documents without prior Unanimous Lender Approval.
§20.8. Disclosure. The Borrower agrees
that, in addition to disclosures made in accordance with standard banking practices, any Lender
may disclose information obtained by such Lender pursuant to this Agreement to assignees or
participants and potential assignees or participants hereunder. [Reserved]
§20.9. Syndication . The Borrower
acknowledges that each of the Agent and the Arranger shall have the right, by itself or through its
Affiliates, to syndicate or enter into co-lending arrangements with respect to the Term Loan and
the Total Commitment pursuant to this §20. The Arranger, in cooperation with the Borrower, will
manage all aspects of the syndication, including the selection of co-lenders, the determination of
when Arranger will approach potential co-lenders and the final allocations among co-lenders. Each
of the Borrower and the Trust agrees to assist Arranger actively in achieving a timely syndication
that is reasonably satisfactory to the Arranger, such assistance to include, among other things,
(a) direct contact during the syndication between the Borrower’s and the Trust’s senior officers,
representatives and advisors, on the one hand, and prospective co-lenders, on the other hand at
such times and places as Arranger may reasonably request, (b) providing to Arranger all financial
and other information with respect to the Borrower, the Subsidiary Guarantors and the Trust and the
transactions contemplated hereby that Arranger may reasonably request, including but not limited to
financial projections relating to the foregoing, and (c) assistance in the preparation of a
confidential information memorandum and other marketing materials to be used in connection with the
syndication, and the Borrower and the Trust agree to cooperate with the Agent’s and the Arranger’s
and their Affiliate’s syndication and/or co-lending efforts, such cooperation to include, without
limitation, the provision of information reasonably requested by potential syndicate
members. [Reserved]
§21. NOTICES, ETC. (a) Except as otherwise expressly provided in this Agreement, all
notices and other communications made or required to be given pursuant to this Agreement or the
Notes 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 facsimile and
confirmed by delivery via courier or postal service, addressed as follows:
-110-
(i) if to the Borrower or the Trust, at 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000, attention Xxxxx Xxxx, Chief Financial Officer (facsimile: (000)
000-0000; e-mail: Xxxxx.Xxxx@xxxxx-xxxxxxx.xxx), with a copy to Xxxxx
X. BraswellSlotkin, Esq., Xxxxxxxxx TeasdaleHogan Lovells US LLP, Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xx. Xxxxx, Xxxxxxxx 00000, Columbia Square, 000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX
00000 (facsimile: (000) 000-0000; e-mail: xxxxx.xxxxxxx@xxxxxxxxxxxx.xxx) and to Xxxxxx Xxxxxx,
Esq., Xxxxx Lovells US LLP, Columbia Square, 000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000 (facsimile:
(000) 000-0000; e-mail: xxxxxx.xxxxxx@xxxxxxxxxxxx.xxx), or to such other address for notice as
the Borrower or the Trust shall have last furnished in writing to the Agent;
(ii) if to the Agent, to KeyBank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx, XX 00000, attention Xxxxx WeaverJohn X. Xxxxx
(facsimile: (000) 000-0000; e-mail: Xxxx_X_Xxxxx@XxxXxxx.xxx), with a copy to Xxxxx Xxx
Xxxxxxxxxxx, KeyBank Institutional Real Estate, 0000 Xxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx 00000
(facsimile: 000-000-0000; e-mail: Xxxxxx_X_Xxxxxxxxxxxxxx@XxxXxxx.xxx), or such other
address for notice as the Agent shall have last furnished in writing to the Borrower, with a copy
to Xxxxxx X. XxxXxxxxx, Esq., Goulston & Storrs, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000-0000 (facsimile: (000)-000-0000; e-mail: xxxxxxxxxx@xxxxxxxxxxxxxx.xxx), or at such
other address for notice as the Agent shall last have furnished in writing to the Person giving the
notice; and
(iii) if to any Lender, at such Lender’s address set forth on Schedule 2 hereto, or
such other address for notice as such Lender shall have last furnished in writing to the Person
giving the notice (including, as appropriate, notices delivered solely to the Person designated
by such Lender for the delivery of notices that may contain material non-public information
relating to the Borrower).
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. Notices and other communications delivered through
electronic communications to the extent provided in subsection (b) below, shall be effective as
provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Agent, provided that the
foregoing shall not apply to notices to any Lender if such Lender has notified the Agent that it is
incapable of receiving notices by electronic communication. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures
approved by it, provided that approval of such procedures may be limited to particular
notices or communications.
-111-
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an
electronic mail (“e-mail”) address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided that if such notice or
other communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent (and received, if the acknowledgment contemplated
above has been obtained) at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and identifying
the website address therefor.
(c) The Platform. THE PLATFORM (as defined in §8.10(c)) IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER INFORMATIONMATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER
INFORMATIONMATERIALS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER INFORMATIONMATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties
(collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any
other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower’s or the Agent’s transmission of Borrower
InformationMaterials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses have resulted from the gross negligence,
willful misconduct or bad faith breach of this Agreement of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to the Borrower, any
Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower and the Agent may change its
address, electronic mail address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, electronic mail address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower and the Agent. In addition, each Lender agrees
to notify the Agent from time to time to ensure that the Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate
wire instructions for such Lender. Furthermore, each Public Lender agrees to
-112-
cause at least one individual at or on behalf of such Public Lender to at all times have
selected the “Private Side Information” or similar designation on the content declaration screen of
the Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable law, including United States Federal and state
securities laws, to make reference to materials with respect to the Borrower or its Affiliates that
are not made available through the “Public Side Information” portion of the Platform and that may
contain material non-public information with respect to the Borrower or its securities for purposes
of United States Federal or state securities laws.
(e) Reliance by Agent, Fronting Bank and Lenders. The Borrower shall indemnify
the Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the good faith reliance by such Person on each notice purportedly given
by or on behalf of the Borrower, provided, however, that the Borrower shall have no liability
hereunder for any such indemnified party’s gross negligence or willful misconduct in connection
therewithRecording of Telephonic Communications.
All telephonic notices to and other telephonic communications with the Agent may be recorded by the
Agent, and each of the parties hereto hereby consents to such recording.
§22. FPLP AS AGENT FOR THE SUBSIDIARY GUARANTORS. The Borrower shall cause each
Subsidiary Guarantor and each Unsecured Revolver Subsidiary Guarantor to appoint FPLP as
its agent with respect to the receiving and giving of any notices, requests, instructions, reports,
certificates (including, without limitation, compliance certificates), schedules, revisions,
financial statements or any other written or oral communications hereunder or under any other Loan
Document. The Agent and each Lender is hereby entitled to rely on any communications given or
transmitted by FPLP as if such communication were given or transmitted by each and every
Subsidiary Guarantor and Unsecured Revolver Subsidiary Guarantor; provided
however, that any communication given or transmitted by any Subsidiary Guarantor or
Unsecured Revolver Subsidiary Guarantor shall be binding with respect to such Subsidiary
Guarantor or such Unsecured Revolver Subsidiary Guarantor. Any communication given or transmitted
by the Agent or any Lender to FPLP shall be deemed given and transmitted to each and every
Subsidiary Guarantor and Unsecured Revolver Subsidiary Xxxxxxxxx.
§00. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS AGREEMENT AND EACH OF
THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
THE BORROWER, FOR ITSELF AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY
BE BROUGHT IN ANY COURT IN THE STATE OF OHIO OR IN THE STATE OF NEW YORK AND OF ANY FEDERAL
COURT LOCATED IN
-113-
§24. HEADINGS. The captions in this Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
§25. COUNTERPARTS. This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one instrument. In
proving this Agreement it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
§26. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents executed in
connection herewith or therewith express the entire understanding of the parties with respect to
the transactions contemplated hereby. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in §28.
§27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. EXCEPT TO THE EXTENT EXPRESSLY
PROHIBITED BY LAW, THE BORROWER, THE SUBSIDIARY GUARANTORS, THE UNSECURED REVOLVER SUBSIDIARY
GUARANTORS, AND THEIR SUBSIDIARIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE
NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE
BORROWER, THE SUBSIDIARY GUARANTORS, THE UNSECURED REVOLVER SUBSIDIARY GUARANTORS AND THEIR
SUBSIDIARIES HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWER, THE
SUBSIDIARY GUARANTORS, THE UNSECURED REVOLVER SUBSIDIARY GUARANTORS AND THEIR SUBSIDIARIES
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE AGENT
-114-
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 THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY
ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
§28. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly provided in
this Agreement, any consent or approval required or permitted by this Agreement may be given, and
any term of this Agreement or of any of the other Loan Documents may be amended, and the
performance or observance by the Borrower, a Subsidiary Guarantor, an Unsecured Revolver
Subsidiary Guarantor or the Trust or any of their respective Subsidiaries of any terms of this
Agreement or the other Loan Documents or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either retroactively or prospectively)
with, but only with, the written consent of the Majority Lenders.
Notwithstanding the foregoing, Unanimousthe approval of
each Lender Approvaldirectly affected thereby shall be
required for any amendment, modification or waiver of this Agreement that (subject to §2.11 in
the case of Permitted Amendments):
(a) (i) reduces or forgives any principal
of any unpaid Loan or any interest thereon (including any general waiver of
interest “breakage” costs) or any fees due anyto such Lender hereunder, or permits any prepayment not otherwise
permitted hereunder; or
(b) (ii) changes the unpaid principal
amount of the Term Loan, reduces the rate of interest applicable to the Term
Loan, or reduces any fee payable to the LendersAgent or the Lenders hereunder; provided, however, that only the consent
of the Majority Lenders shall be necessary (i) to amend the definition of
“Default Rate” or to waive any obligation of the Borrower to pay interest at
the Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to
reduce the rate of interest on the Term Loan or to reduce any fee payable
hereunder; or
(c)
(iii) except as permitted pursuant
to the terms of §2.11, changes the date fixed for any payment of
principal of or interest on any portion of the Term Loan (including,
without limitation, any extension of the applicable Maturity Date not
contemplated herein) or any fees payable hereunder (including, without
limitation, the waiver of any monetary Event of Default); or
(d) (iv) changes the amount of
anysuch Lender’s Commitment (other than
pursuant to an assignment permitted under §20.1)
or increases the amount of the Total Commitment except as permitted
hereunder; or
-115-
(e) And Unanimous Lender Approval shall be required for any
amendment, modification or waiver of this Agreement that:
(f) changes §14.4 in a manner that would alter the pro rata sharing
of payments required thereby; or
(g) (v)
modifies any provision herein or
in any other Loan Document which by the terms thereof expressly requires
Unanimous Lender Approval; or
(h)
(vi) changes any provision of
this §28 or the definitions of “Majority
Lenders” or “Unanimous Lender
Approval” or any other provision hereof specifying the number or
percentage of Lenders greater than the Majority Lenders required to amend,
waive or otherwise modify any rights hereunder or make any determination or
grant any consent hereunder; or
(i) (vii)releases the Guaranty of the
Trust, any Subsidiary Guaranty or a material portion of the Collateral, other
than in accordance with the terms hereof.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right
to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or
consent which by its terms requires Unanimous Lender Approval or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)
the Commitment of any Defaulting Lender may not be increased or extended without the consent of
such Lender and (y) any waiver, amendment or modification requiring Unanimous Lender Approval or
each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender.
The provisions in §8.2 through §8.12, §8.14 through §8.21, §0, §00.0 through §10.4 and
§14.1 of this Agreement, including, in each case, any associated definitions in §1.1, contain
essentially the same provisions with respect to the Trust, the Borrower and their Subsidiaries as
those contained in §8.2 through §8.12, §8.14 through §8.21, §0, §00.0 through §10.4 and §14.1 of
the Unsecured Revolver Agreement and in the associated definitions in the Unsecured Revolver
Agreement (the “Revolver Provisions”). In the event that there is a proposal to modify, waive or
restate, or request a consent or approval with respect to, the Revolver Provisions (including any
associated definitions) of the Unsecured Revolver Agreement in writing (which may include a written
waiver of an existing actual or potential default or event of default that is intended to be
eliminated by such modification, restatement or waiver) (each of the foregoing, a “Proposed
Modification”), then (A) any Lender under this Agreement shall be deemed to have
-116-
automatically approved the Proposed Modification hereunder of any corresponding Revolver
Provisions contained in this Agreement for purposes of determining if the requisite approvals
hereunder have been obtained if (but only if) such Lender approved the Proposed Modification under
the Unsecured Revolver in its capacity as a “Lender” under the Unsecured Revolver Agreement or as
an Affiliate of a Lender that approved the Proposed Modification under the Unsecured Revolver
Agreement and (B) in the case that the Lenders under this Agreement described in clause (A) above
constitute the Majority Lenders hereunder, then simultaneously with the agreement to or granting of
such Proposed Modification under the Unsecured Revolver Agreement, this Agreement shall be deemed
modified or restated, or such waiver, consent or approval granted, in a manner consistent with the
Proposed Modifications under the Unsecured Revolver Agreement, unless such modification,
restatement, waiver, consent or approval requires the consent of each Lender directly affected
thereby under the terms of this §28. If requested by the Borrower or the Agent, the Borrower, the
Trust, the Agent and each approving Lender (including any Lender deemed to have approved pursuant
to this §28) shall execute and deliver a written amendment to, restatement of, or waiver, consent
or approval under, this Agreement memorializing such modification, restatement, waiver, consent or
approval. In addition, the Borrower will be obligated to pay to the Agent, the Arranger and the
Lenders (other than any Lender that is also a “Lender” under the Unsecured Revolver Agreement or an
Affiliate of a Lender under the Unsecured Revolver Agreement that did not approve the Proposed
Modification thereunder) the same fee rate as the Borrower shall pay to the agent, arranger and
lenders, respectively, under the Unsecured Revolver Agreement in connection with such modification,
restatement, waiver, consent or approval.
No waiver shall extend to or
affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the Agent or the
Lenders or any Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial to such right or any other rights of the Agent or the Lenders. No notice to or demand
upon the Borrower or, a Subsidiary Guarantor or an
Unsecured Revolver Subsidiary Guarantor shall entitle the Borrower, such Subsidiary
Guarantor or such Unsecured Revolver Subsidiary Guarantor to other or further notice or demand
in similar or other circumstances.
-117-
§29. SEVERABILITY. The provisions of this Agreement are severable, and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision,
or part thereof, in such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in any jurisdiction.
§30. INTEREST RATE LIMITATION. Notwithstanding anything herein to the contrary, if at
any time the interest rate applicable to the Term Loan, together with all fees, charges and other
amounts which are treated as interest on such Term Loan under applicable law (collectively, the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Term Loan in accordance with
applicable law, the rate of interest payable in respect of such Term Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Term Loan but were
not payable as a result of the operation of this §30 shall be cumulated and the interest and
Charges payable to such Lender in respect of other periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal
Funds Rate to the date of repayment, shall have been received by such Lender.
§31. USA PATRIOT ACT NOTIFICATIONCOMPLIANCE.
(a) The following notification is provided to the Borrower, the Subsidiary
Guarantors and the Unsecured Revolver Subsidiary Guarantors pursuant to Section 326
of the USA Patriot Act of 2001, 31 U.S.C. Section 5318 (the “USA Patriot Act”):
§1.2
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the
funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each person or entity that
opens an account, including any deposit account, treasury management account, loan, other extension
of credit, or other financial services product. The Agent and/or the Lenders will ask for
Borrower’s name, taxpayer identification number, business address, and other information that will
allow the Agent and the Lenders to identify Borrower, the Subsidiary Guarantors and the
Unsecured Revolver Subsidiary Guarantors. The Agent and/or the Lenders may also ask to see
Borrower’s and, the Subsidiary Guarantors’ or the Unsecured Revolver
Subsidiary Guarantors’ legal organizational documents or other identifying documents.
-118-
(b) In order for the Agent to comply with the USA Patriot Act, prior to any Lender or
participant that is organized under the laws of a jurisdiction outside of the United States of
America becoming a party hereto, the Agent may request, and such Lender or participant shall
provide to the Agent, its name, address, tax identification number and/or such other identification
information as shall be necessary for the Agent to comply with federal law.
(Remainder of page intentionally left blank)
-119-
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a sealed
instrument as of the date first set forth above.
| KEYBANK NATIONAL ASSOCIATION, |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
(Signatures continued on next page)
-120-
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP | ||||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||||
| By: | ||||||||||
Executive Vice President |
||||||||||
EXHIBIT B
Conformed Loan Agreement
[Attached]
Exhibit B to Amendment No. 5 to Secured Term Loan Agreement
SECURED TERM LOAN AGREEMENT
among
FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP
and
KEYBANK NATIONAL ASSOCIATION,
and
OTHER LENDERS WHICH MAY BECOME PARTIES TO THIS AGREEMENT
and
KEYBANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
AS ADMINISTRATIVE AGENT
with
KEYBANC CAPITAL MARKETS INC.,
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
Dated as of August 7, 2007
TABLE OF CONTENTS
§1. DEFINITIONS AND RULES OF INTERPRETATION |
1 | |||
§1.1. Definitions |
1 | |||
§1.2. Rules of Interpretation |
30 | |||
§1.3. GAAP |
31 | |||
§2. THE TERM LOAN |
31 | |||
§2.1. Commitment to Lend |
31 | |||
§2.2. The Term Notes |
32 | |||
§2.3. Interest on the Term Loan |
32 | |||
§2.4. Request for the Term Loan |
33 | |||
§2.5. Conversion Options |
33 | |||
§2.6. [Reserved] |
34 | |||
§2.7. [Reserved] |
34 | |||
§2.8. Increase in Total Commitment |
34 | |||
§2.9. Reserved |
35 | |||
§2.10. Reserved |
35 | |||
§2.11. Certain Permitted Amendments |
35 | |||
§2.12. Reverse Dutch Auction Xxxxxxxxxxx |
00 | |||
§0. REPAYMENT OF THE TERM LOAN |
38 | |||
§3.1. Maturity |
38 | |||
§3.2. Optional Repayments of the Term Loan |
38 |
-i-
§4. CERTAIN GENERAL PROVISIONS |
39 | |||
§4.1. Funds for Payments |
39 | |||
§4.2. Computations |
43 | |||
§4.3. Inability to Determine Libor Rate |
43 | |||
§4.4. Illegality |
43 | |||
§4.5. Additional Costs, Etc. |
44 | |||
§4.6. Capital Adequacy |
45 | |||
§4.7. Certificate; Limitations |
45 | |||
§4.8. Indemnity |
46 | |||
§4.9. Interest After Default |
46 | |||
§4.10. Right to Replace Lender |
47 | |||
§4.11. Defaulting Lenders |
47 | |||
§5. COLLATERAL |
48 | |||
§5.1. Security Interests |
48 | |||
§5.2. Pledged Equity Properties; Pledged Distributions Properties |
48 | |||
§5.3. Mortgage Collateral Properties |
48 | |||
§6. RECOURSE OBLIGATIONS; JOINT AND SEVERAL LIABILITY |
50 | |||
§7. REPRESENTATIONS AND WARRANTIES |
50 | |||
§7.1. Authority, Etc. |
50 | |||
§7.2. Governmental Approvals |
53 | |||
§7.3. Title to Properties; Leases |
53 | |||
§7.4. Financial Statements |
53 | |||
§7.5. No Material Changes, Etc. |
54 | |||
§7.6. Franchises, Patents, Copyrights, Etc. |
54 |
-ii-
§7.7. Litigation |
54 | |||
§7.8. No Materially Adverse Contracts, Etc. |
54 | |||
§7.9. Compliance With Other Instruments, Laws, Etc. |
54 | |||
§7.10. Tax Status |
55 | |||
§7.11 No Event of Default |
55 | |||
§7.12. Investment Company Acts |
55 | |||
§7.13. Name; Jurisdiction of Organization; Absence of UCC Financing Statements, Etc. |
55 | |||
§7.14. Absence of Liens |
55 | |||
§7.15. Certain Transactions |
56 | |||
§7.16. Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans |
56 | |||
§7.17. Regulations U and X |
56 | |||
§7.18. Environmental Compliance |
57 | |||
§7.19. Subsidiaries |
58 | |||
§7.20. Disclosure |
58 | |||
§7.21. REIT Status |
59 | |||
§7.22. Anti-Terrorism Regulations |
59 | |||
§8. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE TRUST |
59 | |||
§8.1. Punctual Payment |
59 | |||
§8.2. Maintenance of Office; Jurisdiction of Organization, Etc. |
59 | |||
§8.3. Records and Accounts |
60 | |||
§8.4. Financial Statements, Certificates and Information |
60 | |||
§8.5. Notices |
62 | |||
§8.6. Existence of Borrower; Maintenance of Properties |
64 |
-iii-
§8.7. Existence of the Trust; Maintenance of REIT Status of the Trust; Maintenance of Properties |
65 | |||
§8.8. Insurance |
65 | |||
§8.9. Taxes |
65 | |||
§8.10. Inspection of Properties and Books; Treatment of Certain Information; Confidentiality |
66 | |||
§8.11. Compliance with Laws, Contracts, Licenses, and Permits |
68 | |||
§8.12. Use of Proceeds |
68 | |||
§8.13. Additional Borrower; Solvency of Borrower; Removal of Borrower; Addition of Real Estate Asset to Unencumbered Pool |
68 | |||
§8.14. Further Assurances |
70 | |||
§8.15. Interest Rate Protection |
70 | |||
§8.16. Environmental Indemnification |
70 | |||
§8.17. Response Actions |
71 | |||
§8.18. Environmental Assessments |
71 | |||
§8.19. Employee Benefit Plans |
71 | |||
§8.20. No Amendments to Certain Documents |
72 | |||
§8.21. Additional Guaranties |
73 | |||
§9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE TRUST |
74 | |||
§9.1. Restrictions on Indebtedness |
74 | |||
§9.2. Restrictions on Liens, Etc. |
75 | |||
§9.3. Restrictions on Investments |
78 | |||
§9.4. Merger, Consolidation and Disposition of Assets; Secured Debt Incurrence |
79 | |||
§9.5. Compliance with Environmental Laws |
81 | |||
§9.6. Distributions |
81 | |||
§9.7. Government Regulation |
81 |
-iv-
§10. FINANCIAL COVENANTS; COVENANTS REGARDING ELIGIBLE BORROWING BASE PROPERTIES |
82 | |||
§10.1. Consolidated Total Leverage Ratio |
82 | |||
§10.2. Consolidated Debt Yield |
82 | |||
§10.3. Fixed Charge Coverage Ratio |
82 | |||
§10.4. Net Worth |
82 | |||
§10.5. Borrowing Base Pool Leverage |
82 | |||
§10.6. Borrowing Base Pool Debt Service Coverage Ratio |
83 | |||
§10.7. Reserved |
83 | |||
§11. RESERVED |
83 | |||
§12. CONDITIONS TO THE FIRST ADVANCE |
83 | |||
§12.1. Loan Documents |
83 | |||
§12.2. Certified Copies of Organization Documents |
83 | |||
§12.3. By-laws; Resolutions |
84 | |||
§12.4. Incumbency Certificate: Authorized Signers |
84 | |||
§12.5. Opinion of Counsel Concerning Organization and Loan Documents |
84 | |||
§12.6. Guarantees |
84 | |||
§12.7. Certifications from Government Officials; UCC-11 Reports |
84 | |||
§12.8. Proceedings and Documents |
84 | |||
§12.9. Fees |
85 | |||
§12.10. Closing Certificate |
85 | |||
§12.11. Other Matters |
85 | |||
§13. [RESERVED] |
00 |
-x-
§00. EVENTS OF DEFAULT; ACCELERATION; ETC. |
85 | |||
§14.1. Events of Default and Acceleration |
85 | |||
§14.2. Default under Property Level Debt |
89 | |||
§14.3. Remedies |
90 | |||
§14.4. Application of Funds |
90 | |||
§15. SET-OFF |
91 | |||
§15.1 Reserved |
91 | |||
§15.2 Set-Off and Debit |
91 | |||
§15.3 Reserved |
92 | |||
§15.4 Additional Rights |
92 | |||
§16. THE AGENT |
92 | |||
§16.1. Authorization |
92 | |||
§16.2. Employees and Agents |
92 | |||
§16.3. No Liability |
93 | |||
§16.4. No Representations |
93 | |||
§16.5. Payments |
93 | |||
§16.6. Holders of Notes |
94 | |||
§16.7. Indemnity |
94 | |||
§16.8. Agent as Lender |
94 | |||
§16.9. Notification of Defaults and Events of Default |
94 | |||
§16.10. Duties in Case of Enforcement |
95 | |||
§16.11. Successor Agent |
95 | |||
§16.12. Notices |
96 | |||
§17. EXPENSES AND XXXXXXXXXXXXXXX |
00 |
-xx-
§00. RESERVED |
98 | |||
§19. SURVIVAL OF COVENANTS, ETC. |
98 | |||
§20. ASSIGNMENT; PARTICIPATIONS; ETC. |
99 | |||
§20.1. Conditions to Assignment by Lenders |
99 | |||
§20.2. Certain Representations and Warranties; Limitations; Covenants |
99 | |||
§20.3. Register |
100 | |||
§20.4. New Notes |
100 | |||
§20.5. Participations |
101 | |||
§20.6. Pledge by Lender |
101 | |||
§20.7. No Assignment by Borrower |
101 | |||
§20.8. Disclosure |
101 | |||
§20.9. Syndication |
101 | |||
§21. NOTICES, ETC. |
000 | |||
§00. FPLP AS AGENT FOR THE SUBSIDIARY XXXXXXXXXX |
000 | |||
§00. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE |
104 | |||
§24. HEADINGS |
000 | |||
§00. COUNTERPARTS |
000 | |||
§00. ENTIRE AGREEMENT, ETC. |
000 | |||
§00. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS |
000 | |||
§00. CONSENTS, AMENDMENTS, WAIVERS, ETC. |
000 | |||
§00. SEVERABILITY |
000 | |||
§00. INTEREST RATE LIMITATION |
108 | |||
§31. USA PATRIOT ACT COMPLIANCE |
109 |
-vii-
Exhibits to Secured Term Loan Agreement
Exhibit A — Form of Term Note |
Exhibit B — Form of Completed Loan Request |
Exhibit B-1 — Form of Conversion Request |
Exhibit C — Forms of Compliance Certificates |
Exhibit D — Form of Assignment and Assumption |
Exhibit E — Form of Joinder Agreement |
Exhibit F — Form of Additional Subsidiary Guaranty Joinder Agreement |
-viii-
Schedules to Secured Term Loan Agreement
| Schedule 1 | Subsidiary Guarantors |
|||
| Schedule 1A | Borrowing Base Pool |
|||
| Schedule 1B | Unsecured Revolver Subsidiary Guarantors |
|||
| Schedule 2.12 | Reverse Dutch Auction Repurchases |
|||
| Schedule 2 | Lender’s Commitments |
|||
| Schedule 7.1(b) | Capitalization |
|||
| Schedule 7.3(c) | Partially-Owned Entities |
|||
| Schedule 7.7 | Litigation |
|||
| Schedule 7.13 | Legal Name; Jurisdiction |
|||
| Schedule 7.15 | Affiliate Transactions |
|||
| Schedule 7.16 | Employee Benefit Plans |
|||
| Schedule 7.19 | Subsidiaries |
|||
| Schedule 8.19 | Employee Benefit Plans |
|||
| Schedule 9.1(g) | Contingent Liabilities |
|||
-ix-
SECURED TERM LOAN AGREEMENT
This SECURED TERM LOAN AGREEMENT (this “Agreement”) is made as of the 7th day of
August, 2007, by and among FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, a Delaware limited
partnership (the “Borrower” or “FPLP”), having its principal place of business at 0000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000; KEYBANK NATIONAL ASSOCIATION (“KeyBank”),
having a principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 and the other
lending institutions which are as of the date hereof or may become parties hereto pursuant to §20
(individually, a “Lender” and collectively, the “Lenders”); and KEYBANK, as administrative agent
for itself and each other Lender (the “Agent”); and KEYBANC CAPITAL MARKETS INC., as Sole Lead
Arranger and Sole Book Manager.
RECITALS
A. The Borrower is primarily engaged in the business of owning, acquiring,
developing, renovating and operating office, industrial and so-called flex properties in the
Mid-Atlantic region of the United States.
B. First Potomac Realty Trust, a Maryland real estate investment trust (the “Trust”), is the
sole general partner of FPLP, holds in excess of 80% of the partnership interests in FPLP as of the
date of this Agreement, and is qualified to elect REIT status for income tax purposes and has
agreed to guaranty the obligations of the Borrower hereunder and under the other Loan Documents (as
defined below).
C. The Borrower and the Trust have requested, and the Lenders have agreed to establish, a
senior secured term loan in favor of the Borrower pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
parties hereto agree to the terms and conditions of this Agreement as set forth below:
§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:
AAP Qualification. See §7.6.
-1-
Account Agreement. Collectively, (i) the Account Pledge, Assignment and Control
Agreement in favor of the Agent on behalf of the Lenders with respect to the pledged deposit
account into which Distributions pledged pursuant to a Distributions Pledge Agreement or an Equity
Pledge Agreement will be deposited and (ii) each of the other documents, agreements and
instruments, including control agreements, entered into by the Borrower or a Subsidiary Guarantor
and/or any financial institution in favor of the Agent on behalf of the Lenders with respect to
Distributions.
Accountants. In each case, independent certified public accountants reasonably
acceptable to the Majority Lenders. The Lenders hereby acknowledge that the Accountants may
include KPMG LLP and any other so-called “big-four” accounting firm.
Accounts Payable. Accounts payable of the Borrower, the Trust and their respective
Subsidiaries, as determined in accordance with GAAP.
Additional Subsidiary Guaranty. The guaranty made by the Unsecured Revolver
Subsidiary Guarantors, on a joint and several basis, dated as of the Amendment No. 5 Effective
Date, in favor of the Agent and the Lenders, together with any joinder agreements thereto provided
by any Unsecured Revolver Subsidiary Guarantor after the Amendment No. 5 Effective Date, pursuant
to which Unsecured Revolver Subsidiary Guarantors guarantee to the Agent and the Lenders the
unconditional payment and performance of the Obligations, as the same may be modified, amended,
restated or reaffirmed from time to time.
Additional Subsidiary Guaranty Joinder Agreement. The one or more Additional
Subsidiary Guaranty Joinder Agreements among the Agent (on behalf of itself and the Lenders) and
any one or more Unsecured Revolver Subsidiary Guarantors which are to join the Additional
Subsidiary Guaranty at any time after the Amendment No. 5 Effective Date, the form of which is
attached hereto as Exhibit F.
Adjusted EBITDA. As at any date of determination, an amount equal to (i) Consolidated
EBITDA for the applicable period; minus (ii) the Capital Reserve on such date.
Adjusted Net Operating Income. As at any date of determination, an amount equal to
(i) the Net Operating Income of the Borrowing Base Pool for the applicable period; minus
(ii) the Borrowing Base Pool Capital Reserve on such date.
Affected Lender. See §4.10.
Affiliate. With reference to any Person, (i) any director, officer, general partner,
trustee or managing member (or the equivalent thereof) of that Person, (ii) any other Person
controlling, controlled by or under direct or indirect common control of that Person, (iii) any
other Person directly or indirectly holding 5% or more of any class of the capital stock or other
Equity Interests (including options, warrants, convertible securities
and similar rights) of that Person, (iv) any other Person 5% 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, and (v) any Person directly or indirectly
controlling that Person, whether through a management agreement, voting agreement, other contract
or otherwise. In no event shall the Agent or any Lender be deemed to be an Affiliate of the
Borrower.
-2-
Agent. See the preamble to this Agreement. The Agent shall include any successor
agent, as permitted by §16.
Agent Auction Fee. A fee payable to the Agent in connection with each Auction, which
fee shall be a reasonable and customary amount to be mutually agreed upon by the Agent and the
Borrower.
Agent’s Head Office. The Agent’s office located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000, or at such other location as the Agent may designate from time to time, or the office of any
successor agent permitted under §16.
Agreement. This Secured Term Loan Agreement, including the Schedules and
Exhibits hereto, as the same may be from time to time amended, restated, modified and/or
supplemented and in effect.
Agreement of Limited Partnership of the Borrower. The Amended and Restated Agreement
of Limited Partnership of FPLP, dated September 15, 2003, as amended, among the Trust and the
limited partners named therein, as amended through the date hereof and as the same may be further
amended from time to time as permitted by §8.20.
Amendment No. 3. The Amendment No. 3 to this Agreement dated as of December 29, 2009
by and among the Borrower, the Agent and the Lenders.
Amendment No. 3 Effective Date. December 29, 2009.
Amendment No. 5. The Amendment No. 5 to this Agreement dated as of September 30, 2011
by and among the Borrower, the Agent and the Lenders.
Amendment No. 5 Effective Date. September 30, 2011.
Applicable Base Rate Margin. From the Amendment No. 3 Effective Date through December
31, 2010, the Applicable Base Rate Margin shall be one hundred twenty five (125) basis points.
From January 1, 2011 through December 31, 2011, the Applicable Base Rate Margin shall be two
hundred twenty five (225) basis points. From January 1, 2012 through December 31, 2012, the
Applicable Base Rate Margin shall be three hundred twenty five (325) basis points. From and after
January 1, 2013, the Applicable Base Rate Margin shall be four hundred twenty five (425) basis
points.
Applicable Libor Margin. From the Amendment No. 3 Effective Date through December 31,
2010, the Applicable Libor Margin shall be two hundred fifty (250) basis points. From January 1,
2011 through December 31, 2011, the Applicable Libor Margin shall be three hundred fifty (350)
basis points. From January 1, 2012 through December 31, 2012, the Applicable Libor Margin shall be
four hundred fifty (450) basis points. From and after January 1, 2013, the Applicable Libor Margin
shall be five hundred fifty (550) basis points.
-3-
Arranger. KeyBanc Capital Markets Inc.
Assignment and Assumption. See §20.1.
Assignment of Leases and Rents. Each collateral assignment of leases and rents from
each Collateral Property Mortgagor to the Agent pursuant to which such Collateral Property
Mortgagor has granted and assigned to the Agent, for the benefit of the Agent and the Lenders, a
first-priority security interest in, and assignment of, such Collateral Property Mortgagor’s
interest as lessor with respect to all leases and rents thereunder of all or any part of the
Eligible Borrowing Base Property owned by such Collateral Property Mortgagor, as the same may be
modified, amended or restated from time to time.
Attributable Indebtedness. On any date, in respect of any Capitalized Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP.
Auction. See §2.12(a).
Auction Manager. See §2.12(a).
Base Rate. As at any applicable date of determination, the greatest of (i) the
fluctuating annual rate of interest announced from time to time by the Agent at the Agent’s Head
Office as its “prime rate”, (ii) one half of one percent (0.50%) plus the Federal Funds Rate and
(iii) one and one quarter percent (1.25%) plus the Libor Rate for a term of one month commencing on
such date of determination. The Base Rate is a reference rate and does not necessarily represent
the lowest or best rate being charged to any customer. Any change in the rate of interest payable
hereunder resulting from a change in the Base Rate shall become effective as of the opening of
business on the day on which such change in the Base Rate becomes effective, without notice or
demand of any kind.
Base Rate Loan(s). The portion(s) of the Term Loan bearing interest calculated by
reference to the Base Rate.
Borrower. See the preamble hereto.
Borrower Information. See §2.3(g).
Borrower Materials. See §8.10(c).
-4-
Borrowing Base Pool. As determined from time to time, collectively, the Eligible
Borrowing Base Properties that the Borrower has designated in writing to be included in the
Borrowing Base Pool, subject to and in accordance with the terms hereof. The Borrowing Base Pool
as of the Amendment No. 5 Effective Date is set forth on Schedule 0X.
Xxxxxxxxx Xxxx Xxxx Xxxxxxx Xxxxxxx. As at any date of determination, a capital
reserve equal to the total number of square feet of the Eligible Borrowing Base Properties on such
date, multiplied by $0.15.
Borrowing Base Property Conditions. See definition of “Eligible Borrowing Base
Property(ies)”.
Building(s). Individually and collectively, the buildings, structures and
improvements now or hereafter located on the Real Estate Assets.
Business Day. (i) For all purposes other than as covered by clause (ii) below, any
day other than a Saturday, Sunday or legal holiday on which banks in Cleveland, Ohio are open for
the conduct of a substantial part of their commercial banking business; and (ii) with respect to
all notices and determinations in connection with, and payments of principal and interest on, Libor
Rate Loans, any day that is a Business Day described in clause (i) and that is also a Libor
Business Day.
Capital Expenditures. Any expenditure for any item that would be treated or defined
as a capital expenditure under GAAP.
Capital Reserve. As at any date of determination, a capital reserve equal to the
weighted average of square feet of the Real Estate Assets during the applicable period, multiplied
by $0.15 per annum.
Capitalization Rate. The Capitalization Rate shall be (i) 7.50% for DC Office
Properties, (ii) 8.00% for Suburban Office Properties, and (iii) 8.50% for Other Properties.
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 obligations under
which are required to be capitalized on the balance sheet of the lessee or obligor in accordance
with GAAP.
Cash and Cash Equivalents. As of any date of determination, the sum of (a) the
aggregate amount of unrestricted cash then actually held by the Borrower or any of its
Subsidiaries, (b) the aggregate amount of unrestricted cash equivalents (valued at fair
market value) then held by the Borrower or any of its Subsidiaries and (c) the aggregate amount of
cash then actually held by the Borrower or any of its Subsidiaries in the form of tenant security
deposits, but only to the extent such tenant security deposits are included as a liability on the
Borrower’s Consolidated balance sheet, escrows and reserves. 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” means that such asset has a liquid, par value in cash and is convertible to
cash on demand.
-5-
Change in Law. The occurrence, after the Amendment No. 5 Effective Date, of any of
the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation,
implementation or application thereof by any Governmental Authority or (c) the making or issuance
of any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary, (x)
the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines
or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines
or directives promulgated by the Bank for International settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States regulatory authorities, 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 or issued.
Change of Control. An event or series of events by which:
(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an
“option right”)), directly or indirectly, of 35% or more of the equity securities of the
Trust entitled to vote for members of the board of directors or equivalent governing body of the
Trust on a fully-diluted basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Trust cease to be composed of individuals (i)
who were members of that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body.
CERCLA. See §7.18.
-6-
Closing Date. August 7, 2007.
Code. The Internal Revenue Code of 1986, as amended and in effect from time to time.
Collateral. Collectively, the property, rights and interests of the Borrower and the
Subsidiary Guarantors which are subject to the security interests and liens created by the Security
Documents.
Collateral Property Mortgagor. Each Subsidiary Guarantor that has executed and
delivered a Security Deed in favor of the Agent pursuant to §5.3.
Commitment. With respect to each Lender, the amount set forth from time to time on
Schedule 2 hereto as the amount of such Lender’s Commitment to make Term Loan A, Term Loan
B, Term Loan C and Term Loan D to the Borrower, as such Schedule 2 may be updated by the
Agent from time to time.
Commitment Percentage. With respect to each Lender, the percentage set forth on
Schedule 2 hereto as such Lender’s percentage of the Total Commitment, as such Schedule
2 may be updated by the Agent from time to time.
Completed Loan Request. A loan request accompanied by all information required to be
supplied under the applicable provisions of §2.4.
Consolidated or consolidated. With reference to any term defined herein, shall mean
that term as applied to the accounts of the Borrower, the Trust and their respective Subsidiaries,
consolidated in accordance with GAAP unless otherwise specifically provided herein.
Consolidated Borrowing Base Indebtedness. As of any date of determination, the
aggregate principal amount of (i) the Property Level Debt and (ii) the Obligations outstanding at
such time.
Consolidated Debt Yield. In relation to the Borrower, the Trust and their respective
Subsidiaries for any fiscal quarter, the percentage determined by dividing (i) Consolidated EBITDA
for the most recently ended fiscal quarter, annualized by (ii) Consolidated Total Indebtedness as
of the last day of such fiscal quarter.
-7-
Consolidated EBITDA. In relation to the Borrower, the Trust and their respective
Subsidiaries for any applicable period, an amount equal to, without double-counting, the
net income or loss of the Borrower, the Trust and their respective Subsidiaries determined in
accordance with GAAP (before minority interests and excluding the adjustment for so-called
“straight-line rent accounting”) for such period, plus (x) the following to the extent
deducted in computing such net income or loss for such period: (i) Consolidated Total Interest
Expense for such period, (ii) losses attributable to the sale or other disposition of assets or
debt restructurings in such period, (iii) real estate depreciation and amortization for such
period, (iv) acquisition costs related to the acquisition of Real Estate Assets or the acquisition
or origination of Structured Finance Investments that were capitalized prior to FAS 141-R which do
not represent a recurring cash item in such period or in any future period, and (v) other non-cash
charges for such period; and minus (y) all gains attributable to the sale or other
disposition of assets or debt restructurings in such period, in each case adjusted to include the
Borrower’s, the Trust’s or any Subsidiary’s pro rata share of EBITDA (and the items
comprising EBITDA) from any Partially-Owned Entity in such period, based on its percentage
ownership interest in such Partially-Owned Entity (or such other amount to which the Borrower, the
Trust or such Subsidiary is entitled or for which the Borrower, the Trust or such Subsidiary is
obligated based on an arm’s length agreement).
Consolidated Fixed Charges. For any applicable period, an amount equal to the sum of
(i) Consolidated Total Interest Expense for such period plus (ii) the aggregate amount of
scheduled principal payments of Indebtedness (excluding balloon payments at maturity) required to
be made during such period by the Borrower, the Trust and their respective Subsidiaries on a
Consolidated basis plus (iii) the dividends and distributions, if any, paid or required to
be paid during such period on the Preferred Equity, if any, of the Borrower, the Trust and their
respective Subsidiaries (other than dividends paid in the form of capital stock), in the case of
clauses (i) and (ii), adjusted to include the Borrower’s, the Trust’s or any Subsidiary’s pro rata
share of the foregoing items of any Partially-Owned Entity in such period, based on its percentage
ownership interest in such Partially-Owned Entity (or such other amount for which the Borrower, the
Trust or such Subsidiary is obligated based on an arm’s length agreement.
-8-
Consolidated Gross Asset Value. As of any date of determination, an amount equal to,
without double-counting, the sum of (i) for all Stabilized Real Estate Assets, the aggregate of the
following amount determined for each such asset, (x) the Net Operating Income of each Stabilized
Real Estate Asset for the most recently ended fiscal quarter, multiplied by (y) 4,
with the product thereof being divided by (z) the applicable Capitalization Rate;
plus (ii) an amount equal to the aggregate Cost Basis Value of Real Estate Assets Under
Development on such date, plus (iii) the Cost Basis Value of Land on such date,
plus (iv) an amount equal to the aggregate Cost Basis Value of Value-Add Real Estate Assets
on such date, plus (v) the Structured Finance Investments Value on such date, plus (vi) the
value of Cash and Cash Equivalents on such date, as determined in accordance with GAAP and approved
by the Agent, provided that (a) Net Operating Income from Real Estate Assets
acquired during the most recently ended fiscal quarter and the immediately preceding fiscal quarter
shall be excluded, and such acquired Real Estate Assets shall be included at their Cost Basis
Value, and (b) Net Operating Income from Real Estate Assets sold or otherwise transferred during
the most recently ended fiscal quarter shall be excluded, with Consolidated Gross Asset Value being
adjusted to include, without double-counting any amounts included in the Structured Finance
Investments Value, the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of Net Operating
Income (and the items comprising Net Operating Income) from any Partially-Owned Entity in such
period, based on its percentage ownership interest in such Partially-Owned Entity (or such other
amount to which the Borrower, the Trust or such Subsidiary is entitled based on an arm’s length
agreement).
Consolidated Tangible Net Worth. As of any date of determination, an amount equal to
the Consolidated Gross Asset Value of the Borrower and its Subsidiaries at such date, minus
Consolidated Total Indebtedness outstanding on such date, provided that any amounts
attributable to Real Estate Assets that are required to be reported as “intangibles” under GAAP
pursuant to Financial Accounting Standards Board Statement of Policy No. 141 and 142 shall be
permitted to be added back to “tangible property” for purposes of calculating such Consolidated
Tangible Net Worth.
Consolidated Total Indebtedness. As of any date of determination, Consolidated Total
Indebtedness means for the Borrower, the Trust and their respective Subsidiaries, all obligations,
contingent or otherwise, which should be classified on the obligor’s balance sheet as liabilities,
or to which reference should be made by footnotes thereto, all in accordance with GAAP, including
in any event and whether or not so classified, the sum of (without double-counting), all
Indebtedness outstanding on such date, in each case whether Recourse, Without Recourse or
contingent, provided, however, that Accounts Payable, amounts not drawn under the
Unsecured Revolver Agreement on such date and all obligations under any Swap Contracts (other than,
for the avoidance of doubt, obligations with respect to any forward purchase contract or put) shall
not be included in calculating Consolidated Total Indebtedness, and provided
further that (without double-counting), each of the following shall be included in
Consolidated Total Indebtedness: (a) all amounts of guarantees, indemnities for borrowed money,
stop-loss agreements and the like provided by the Borrower, the Trust
-9-
and their respective
Subsidiaries, in each case in
connection with and guarantying repayment of amounts
outstanding under any other Indebtedness; (b)
all amounts for which a letter of credit (including the letters of credit issued under the
Unsecured Revolver Agreement) has been issued for the account of the Borrower, the Trust or any of
their respective Subsidiaries; (c) all amounts of bonds posted by the Borrower, the Trust or any of
their respective Subsidiaries guaranteeing performance or payment obligations; (d) any obligations
under any Capitalized Lease (but excluding obligations under operating leases or ground leases),
the amount of which as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date; and (e) all liabilities of the Borrower, the Trust or any of their
respective Subsidiaries as partners, members or the like for liabilities (whether such liabilities
are Recourse, Without Recourse or contingent obligations of the applicable partnership or other
Person) of partnerships or other Persons in which any of them have an Equity Interest, which
liabilities are for borrowed money or any of the matters listed in clauses (a), (b), (c) or (d)
above. Without limitation of the foregoing (without double counting), with respect to any
Partially-Owned Entity, (x) to the extent that the Borrower, the Trust or any of their respective
Subsidiaries or such Partially-Owned Entity is providing a completion guaranty in connection with a
construction loan entered into by a Partially-Owned Entity, Consolidated Total Indebtedness shall
include the Borrower’s, the Trust’s or such Subsidiary’s pro rata liability under
the Indebtedness relating to such completion guaranty (or, if greater, the Borrower’s, the Trust’s
or such Subsidiary’s potential liability under such completion guaranty) and (y) in connection with
the liabilities described in clauses (a) and (d) above (other than completion guarantees, which are
referred to in clause (x)), the Consolidated Total Indebtedness shall include the portion of the
liabilities of such Partially-Owned Entity which are attributable to the Borrower’s, the Trust’s or
such Subsidiary’s percentage Equity Interest in such Partially-Owned Entity or such greater amount
of such liabilities for which the Borrower, the Trust or their respective Subsidiaries are, or
have agreed to be, liable by way of guaranty, indemnity for borrowed money, stop-loss agreement or
the like, it being agreed that, in any case, Indebtedness of a Partially-Owned Entity shall not be
excluded from Consolidated Total Indebtedness by virtue of the liability of such Partially-Owned
Entity being Without Recourse. For purposes hereof, the amount of borrowed money shall equal the
sum of (1) the amount of borrowed money as determined in accordance with GAAP plus (2) the
amount of those contingent liabilities for borrowed money set forth in subsections (a) through (e)
above, but shall exclude any adjustment for so-called “straight-line interest accounting”.
Consolidated Total Interest Expense. For any applicable period, the aggregate amount
of interest required in accordance with GAAP to be paid, accrued, expensed or, to the extent it
could be a cash expense in the applicable period, capitalized (but excluding any deferred financing
costs), without double-counting, by the Borrower, the Trust and their respective Subsidiaries
during such period on: (i) all Indebtedness of the Borrower, the Trust and their respective
Subsidiaries (including the Term Loan, obligations under Capitalized Leases (to the extent
Consolidated EBITDA has not been reduced by such Capitalized Lease obligations in the applicable
period) and any Subordinated Indebtedness and including original issue discount and amortization of
prepaid interest, if any, but excluding any Distribution on Preferred Equity), (ii) all amounts
available for borrowing,
or for drawing under letters of credit
-10-
(including the
letters of credit issued under the Unsecured
Revolver Agreement), if any, issued for the account of the Borrower, the Trust or any of their
respective Subsidiaries, but only if such interest was or is required to be reflected as an item of
expense, and (iii) all commitment fees, agency fees, facility fees, balance deficiency fees and
similar fees and expenses in connection with the borrowing of money, in each case adjusted to
include the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of the foregoing items of
any Partially-Owned Entity in such period, based on its percentage ownership interest in such
Partially-Owned Entity (or such other amount for which the Borrower, the Trust or such Subsidiary
is obligated based on an arm’s length agreement).
Conversion Request. A notice given by the Borrower to the Agent of its election to
convert or continue a Loan in accordance with §2.5 in the form of Exhibit B-1 attached hereto.
Core FFO. For any applicable period, with respect to the Borrower and its
Subsidiaries, consolidated “funds from operations” less all acquisition costs, gains or losses on
early retirement of debt, contingent consideration and impairment charges to the extent the same
are taken into account in calculating consolidated “funds from operations”.
Cost Basis Value. The total contract purchase price of a Real Estate Asset plus all
commercially reasonable acquisition costs (including but not limited to title, legal and settlement
costs, but excluding financing costs) that are capitalized in accordance with GAAP.
DC Office Properties. Real Estate Assets constituting multi-story office properties
located within the District of Columbia.
Debtor Relief Laws. The Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
Default. When used with reference to this Agreement or any other Loan Document, an
event or condition specified in §14.1 that, but for the requirement that time elapse or notice be
given, or both, would constitute an Event of Default.
Defaulting Lender. Subject to §4.11.2, any Lender that fails (i) to make available to
the Agent its Applicable Percentage of a Term Loan or otherwise to meet any of its funding
obligations hereunder or (ii) to adjust promptly such Lender’s outstanding principal and its
Applicable Percentage and/or Commitment Percentage, as the case may be, as provided in §2.8.
-11-
Disqualifying Environmental Event. Any Release or threatened Release of Hazardous
Substances, any violation of Environmental Laws or any other similar environmental event with
respect to any Eligible Borrowing Base Property that could reasonably be expected to cost in excess
of $2,500,000 to remediate or, which, with respect to all of the Eligible Borrowing Base
Properties, could reasonably be expected to cost in excess of $5,000,000 in the aggregate to
remediate.
Disqualifying Structural Event. Any structural issue which, with respect to any
Eligible Borrowing Base Property, could reasonably be expected to cost in excess of $2,500,000 to
remediate or, which, with respect to all of the Eligible Borrowing Base Properties, could
reasonably be expected to cost in excess of $5,000,000 in the aggregate to remediate.
Distribution. With respect to:
(i) the Borrower or a Subsidiary Guarantor, any distribution of cash or other
cash equivalent, directly or indirectly, to the partners or other equity holders of
the Borrower or Subsidiary Guarantor, as applicable; or any other distribution on or
in respect of any Equity Interests of the Borrower or Subsidiary Guarantor, as
applicable, (other than dividends payable solely in shares or other Equity Interests
by the Borrower or Subsidiary Guarantor, as applicable); and
(ii) the Trust, the declaration or payment of any dividend on or in respect of
any shares of any class of capital stock or other Equity Interests of the Trust
(other than dividends payable solely in shares of common stock by the Trust); the
purchase, redemption, or other retirement of any shares of any class of capital
stock or other Equity Interests of the Trust, directly or indirectly through a
Subsidiary of the Trust or otherwise; the return of capital by the Trust to its
shareholders as such; or any other distribution on or in respect of any shares of
any class of capital stock or other Equity Interests of the Trust.
Distributions Pledge Agreement. The one or more Distributions Pledge Agreements
entered into by the Borrower and/or a Subsidiary Guarantor pursuant to which the Pledged
Distributions Interests are pledged to the Agent and the Lenders.
Dollars or $. Lawful currency of the United States of America.
Drawdown Date. The date on which the Term Loan is made, and the date on which any
portion of the Term Loan is converted or continued in accordance with §2.5.
-12-
Eligible Assignee. Any of (a) a commercial bank (or similar financial institution)
organized under the laws of the United States, or any State thereof or the District of Columbia,
and having total assets in excess of $500,000,000; (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 a net worth of at least $100,000,000, calculated in
accordance with GAAP; and (c) a commercial bank (or similar financial institution) organized under
the laws of any other country (including the central bank of such 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 $500,000,000, provided that such
bank (or similar financial institution) is acting through a branch or agency located in the United
States of America; (d) a Lender, and (e) an Affiliate of a Lender, provided that such Affiliate
would otherwise meet the criteria set forth in clause (a), (b) or (c) above. In no event will the
Borrower or any Subsidiary or Affiliate of the Borrower be an Eligible Assignee.
Eligible Borrowing Base Property(ies). As of any date of determination, a Real Estate
Asset that: (i) is a Permitted Property, (ii) is wholly-owned in fee simple by the Borrower or a
Subsidiary Guarantor, (iii) the Borrower or such Subsidiary Guarantor has total control over all
decisions regarding such Real Estate Asset (including the operation, financing and disposition
thereof), (iv) is not the subject of a Disqualifying Environmental Event or a Disqualifying
Structural Event, (v) is not subject to any Liens (other than Permitted Liens) or any material
title, survey or similar defect, (vi) if owned by any Subsidiary Guarantor, the Equity Interests of
such Subsidiary Guarantor are not subject to any Lien in favor of any Person other than the Agent
and the Lenders, and (vii) is not subject to any material default or event of default (including,
in any event, (x) any payment default, (y) any financial covenant default and (z) any default as a
result of which the Borrower or the applicable Subsidiary has given, or has received, any notice of
default or other enforcement action) under any Property Level Loan Documents (the foregoing clauses
(i) through (vii) being herein referred to collectively as the “Borrowing Base Property
Conditions”).
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.
Eligible Unencumbered Property(ies). As defined in the Unsecured Revolver Agreement.
Environmental Laws. See §7.18(a).
Environmental Reports. See §7.18
Equity Interest. Any and all shares, partnership or member interests, participations
or other equivalents (however designated) of capital stock of a corporation and any and all
equivalent ownership interests in a Person which is not a corporation and any and all warrants,
options or other rights to purchase any of the foregoing.
Equity Pledge Agreement. The one or more Equity Pledge Agreements entered into by the
Borrower and/or a Subsidiary Guarantor pursuant to which the Pledged Equity Interests are pledged
to the Agent and the Lenders.
-13-
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.
Event of Default. See §14.1.
Excluded Information. See § 2.11(d).
Excluded Taxes. With respect to the Agent, any Lender or any other recipient of any
payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed
on or measured by its overall net income (however denominated), and franchise taxes imposed on it
(in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which such recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable Lending Office is located or as a result of any other
present or former connection (other than a connection arising solely from this Agreement or any
other Loan Document) between such recipient and such jurisdiction, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction described in
clause (a) above, (c) any backup withholding tax that is required by the Code to be withheld from
amounts payable to a Lender that has failed to comply with clause (A) of §4.1(h)(ii), (d) in the
case of a Foreign Lender, any United States withholding tax that (i) is required to be imposed on
amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such
Foreign Lender’s failure or inability (other than as a result of a change in law) to comply with
clause (B) of §4.1(h)(ii), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to §4.1(c) or
(e), and (e) any withholding taxes imposed by the United States pursuant to FATCA.
FATCA. Section 1471 through 1474 of the Code, as of the date of this Agreement or any
amended or successor provision that is substantially comparable and not materially more onerous to
comply with, and, in each case, any regulations or official interpretations thereof.
Federal Funds Rate. For any day, a fluctuating interest rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from 3 federal funds brokers of recognized
standing selected by the Agent.
-14-
Financial Statement Date. June 30, 2011.
Foreign Lender. Any Lender that is organized under the Laws of a jurisdiction other
than that in which the Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction
FP Redland Tech. FP Redland Technology Center LP, a Delaware limited partnership.
FPLP. See the preamble hereto.
“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 at
the applicable date of determination.
GAAP. Generally accepted accounting principles, consistently applied.
Governmental Authority. The government of the United States or any other nation, or
of 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 (including any supra-national bodies such as the European Union or the European Central
Bank).
Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
§3(2) of ERISA maintained or contributed to by the Borrower or the Trust, 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.
Guarantor. Collectively, unless referred to in their individual capacities, the Trust
and each of the Subsidiary Guarantors.
Hazardous Substances. See §7.18(b).
Implied Debt Service. As at any date of determination, an amount equal to (a) the
average amount of Consolidated Borrowing Base Indebtedness outstanding during the applicable
period, multiplied by (b) the Mortgage Constant.
-15-
Increase. See §2.8.
Increase Conditions. The approval of the Agent (not to be unreasonably withheld or
delayed) and the satisfaction of each and all of the following:
| (a) | no Default or Event of Default shall have occurred and be continuing (both before and after giving effect to the Increase) and all representations and warranties contained in the Loan Documents shall be true and correct as of the effective date of the Increase (except to the extent that such representations and warranties relate expressly to an earlier date); | ||
| (b) | the Increase shall be extended on the same terms and conditions applicable to the Term Loan; | ||
| (c) | to the extent any portion of the Increase is committed to by a third party financial institution or institutions not already a Lender hereunder, such financial institution shall be an Eligible Assignee and approved by the Agent (such approval not to be unreasonably withheld or delayed) and each such financial institution shall have signed a counterpart signature page becoming a party to this Agreement and a “Lender” hereunder; | ||
| (d) | one or more of the existing Lenders or such other financial institutions which may become parties hereto incident to the Increase have committed in writing pursuant to the terms hereof to lend the full aggregate amount of the Increase; and | ||
| (e) | if requested by any Lender participating in such Increase, the Borrower shall have delivered new Notes or amended and restated Notes to the extent necessary to reflect such Lender’s Commitment after giving effect to the Increase. |
Indebtedness. With respect to a Person, as of any date of determination, all of the
following (without duplication): (a) all obligations of such Person in respect of money borrowed,
whether direct or indirect, including, without limitation, all Obligations; (b) all obligations of
such Person (other than trade debt incurred in the ordinary course of business), whether or not for
money borrowed (i) represented by notes payable, or drafts accepted, in each case representing
extensions of credit (but only to the extent of any outstanding balance), (ii) evidenced by bonds,
debentures, notes or similar instruments, or
(iii) constituting purchase money indebtedness, conditional sales contracts, title retention
debt instruments or other similar instruments, upon which interest charges are customarily paid or
that are issued or assumed as full or partial payment for property; (c) any obligations under any
Capitalized Lease (but excluding obligations under operating leases or ground leases) of such
Person, the amount of which as of any date shall be
-16-
deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date;
(d) all net obligations under any Swap Contract;
(e) all obligations of such Person or any other Person secured by any Lien or other encumbrance
existing on property of such Person; (f) all reimbursement obligations of such Person under or in
respect of any letters of credit (including the Letters of Credit issued under the Unsecured
Revolver Agreement) or acceptances (whether or not the same have been presented for payment); (g)
all obligations of such Person in respect of “off-balance sheet arrangements” (as defined in Item
303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act of 1933, as amended from time
to time) which such Person would be required to disclose to the SEC; and (h) all obligations in the
nature of those described in clauses (a)-(g) above of other Persons which such Person has
guaranteed or are otherwise recourse to such Person. For the purposes hereof, the amount of any
net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.
Indemnified Taxes. Taxes other than Excluded Taxes
Indemnitee. See §17(b).
Information. See §8.10(d).
Interest Payment Date. As to any portion of the Term Loan, the last day of every
calendar month in which such Loan is outstanding, and, in addition, with respect to any Libor Rate
Loan, the last day of the applicable Interest Period.
Interest Period. With respect to any portion of the Term Loan, but without
duplication of any other Interest Period, (a) initially, the period commencing on the Drawdown Date
of such Loan and ending on the last day of one of the following periods (as selected by the
Borrower in a Completed Loan Request): (i) for any Base Rate Loan, the calendar month in which such
Base Rate Loan is made (whether by borrowing or by conversion from a Libor Rate Loan), and (ii) for
any Libor Rate Loan, 1, 2 or 3 months; and (b) thereafter, each period commencing at the end of the
last day of the immediately preceding Interest Period applicable to such portion of the Term Loan
and ending on the last day of the applicable period set forth in (a)(i) and (ii) above (as selected
by the Borrower in a Conversion Request); provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Libor Rate Loan would otherwise
end on a day that is not a Libor Business Day, such Interest Period shall end on
the next succeeding Libor Business Day,
unless such next succeeding Libor Business Day occurs in the next calendar month,
in which case such Interest Period shall end on the next preceding Libor Business
Day, as determined conclusively by the Agent in accordance with the then current
bank practice in London;
-17-
(B) if the Borrower shall fail to give timely notice of conversion or
continuation of any Libor Rate Loans as provided in §2.5, or if the Borrower
requests a Borrowing of, conversion to, or continuation of Libor Rate Loans in
any Completed Loan Request or Conversion Request, as applicable, but fails to
specify an Interest Period, in each case, the Borrower will be deemed to have
given timely notice specifying an Interest Period of one month;
(C) 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 (D) below, end on the last Business Day of
a calendar month; and
(D) no Interest Period may extend beyond the Maturity Date.
Interest Rate Protection Arrangements. See §8.15.
Investment Permitted Property. A property which is an income producing office,
industrial or a so-called flex property (or a Real Estate Asset Under Development which will be an
income producing office, industrial or so-called flex property when completed) and is located in
the State of Maryland, the Commonwealth of Virginia or the District of Columbia.
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 for the acquisition of Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, any Person; (ii) in connection with Real Estate Assets
Under Development; and (iii) 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 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); (b) there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise; and (c) there shall not
be deducted from the aggregate amount of Investments any decrease in the value thereof.
Joinder Documents. The one or more Joinder Agreements among the Agent (on behalf of
itself and the Lenders) and any Wholly-Owned Subsidiary which is to become a Subsidiary Guarantor
at any time after the Closing Date, the form of which is attached
hereto as Exhibit E, together with all other documents, instruments and certificates
required by any such Joinder Agreement to be delivered by such Wholly-Owned Subsidiary to the Agent
and the Lenders on the date such Wholly-Owned Subsidiary becomes a Borrower hereunder.
Land. An undeveloped Real Estate Asset owned in fee by the Borrower.
-18-
Laws. Collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
Leases. Leases, licenses and other written agreements relating to the use or
occupation of space in or on the Buildings or on the Real Estate Assets by persons other than the
Borrower or any other member of the Potomac Group.
Lenders. Collectively, KeyBank and each other lending institution which, as of any
date of determination, is a party to this Agreement, and any other Person who becomes an assignee
of any rights of a Lender pursuant to §20 or a Person who acquires all or substantially all of the
stock or assets of a Lender.
Lending Office. As to any Lender, the office or offices of such Lender described as
such in such Lender’s most recent administrative materials on file with the Agent, or such other
office or offices as a Lender may from time to time notify the Borrower and the Agent.
Libor Business Day. Any day on which commercial banks are open for international
business (including dealings in Dollar deposits) in London, England.
Libor Breakage Costs. With respect to any Libor Rate Loan to be prepaid prior to the
end of the applicable Interest Period or not borrowed, converted or continued (“drawn” and, with
correlative meaning, “draw”) after elected, a prepayment “breakage” fee in an amount, as reasonably
determined by the Agent, required to compensate the Lenders for any and all additional losses,
costs or expenses that such Lenders incur as a result of such prepayment or failure to borrow,
convert or continue a Libor Rate Loan, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of
deposits of other funds acquired by any Lender to fund or maintain such Libor Rate Loan.
Libor Rate. For any Libor Rate Loan for any Interest Period, the average rates as
shown in Reuters Screen LIBOR01 Page (or any successor service, or, if such Person no
longer reports such rate, as determined by Agent, by another commercially available source
providing such quotations approved by Agent) at which deposits in U.S. dollars are offered by first
class banks in the London Interbank Market at approximately 11:00 a.m. (London time) on the day
that is two (2) Libor Business Days prior to the first day of such Interest Period with a maturity
approximately equal to such Interest Period and in an amount approximately equal to the amount to
which such Interest Period relates. If such service or such other Person approved by Agent
described above no longer reports such
rate or Agent determines in good faith that the rate so
reported no longer accurately reflects the rate available to Agent in the London Interbank Market,
then any and all outstanding Loans shall be Base Rate Loans and bear interest at the Base Rate plus
the Applicable Base Rate Margin. For any period during which a Reserve Percentage shall apply, the
Libor Rate with respect to Libor Rate Loans shall be equal to the amount determined above divided
by an amount equal to 1 minus the Reserve Percentage.
-19-
Libor Rate Loan(s). The portion(s) of the Term Loan bearing interest calculated by
reference to the Libor Rate.
Lien. See §9.2.
Loan Modification Agreement. See §2.11(b).
Loan Modification Offer. See §2.11(a).
Loan. Any of Term Loan A, Term Loan B, Term Loan C or Term Loan D, or any
portion thereof, as the context may require, and/or all of such Term Loan A, Term Loan B, Term Loan
C and Term Loan D together, as the context may require.
Loan Documents. Collectively, this Agreement, the Splitter Agreement, the Trust
Guaranty, each Subsidiary Guaranty, the Notes, the Security Documents, the Joinder Documents and
any and all other agreements, instruments, documents or certificates now or hereafter evidencing or
otherwise relating to the Term Loan and executed and delivered by or on behalf of the Borrower or
its Subsidiaries or the Trust or its Subsidiaries in connection with or in any way relating to the
Term Loan or the transactions contemplated by this Agreement (other than any Protected Interest
Rate Agreement), and all schedules, exhibits and annexes hereto or thereto, as any of the same may
from time to time be amended and in effect.
Majority Lenders. As of any date of determination, the Lenders holding more than
fifty percent (50%) of the aggregate principal amount of the outstanding Loan, provided
that (x) at any time when there are two or more Lenders, the Majority Lenders must include at least
two Lenders, (y) at any time when there are fewer than three Lenders, the Majority Lenders must
include all Lenders and (z) the Loans of any Defaulting Lender shall be excluded for purposes of
making a determination of Majority Lenders.
Material Adverse Effect. A (a) material adverse effect on the business, operations,
assets, condition (financial or otherwise) or properties of the Trust or FPLP or, taken as a whole,
the Potomac Group, (b) a material impairment of the ability of FPLP or the Trust or, taken as a
whole, the First Potomac Group, to fulfill the Obligations (including, without limitation, to repay
all amounts outstanding on the Loan, together with interest and charges thereon when due), (c) a
material adverse effect on the validity or enforceability of any of the Loan Documents, or (d) a
material impairment of the rights and remedies of the Lenders and the Agent under any of the Loan
Documents.
-20-
Maturity Date. (i) With reference to Term Loan A, January 15, 2011, (ii) with
reference to Term Loan B, January 15, 2012, (iii) with reference to Term Loan C, January 15, 2013,
and (iv) with reference to Term Loan D, January 15, 2014; in each case, or such earlier date on
which any of such Term Loans shall become due and payable pursuant to the terms hereof.
Mortgage Collateral Properties. Collectively, the Eligible Borrowing Base Properties
owned by the Collateral Property Mortgagors.
Mortgage Constant. As at any date of determination, a ratio that represents the
payment of principal and interest on an amortizing mortgage loan based on (i) an interest rate
equal to the greater of (x) the then 10-year treasury rate plus 1.50% and (y) 7.00%, and (ii) a
30-year mortgage-style amortization schedule.
Mortgage Documents. See §5.3(a).
Mortgage Note(s). A mortgage note, in which the Borrower holds a direct interest as
payee, for real estate that is developed, so long as at the relevant date of determination, such
Mortgage Note is not in default.
Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA
maintained or contributed to by the Borrower or the Trust, as the case may be, or any ERISA
Affiliate.
Net Operating Income. For any period, an amount equal to (i) the aggregate rental and
other income from the operation of the applicable Real Estate Assets during such period;
minus (ii) all expenses and other proper charges incurred in connection with the operation
of such Real Estate Assets (including, without limitation, real estate taxes, management fees (or
Overhead Allocation, as applicable), payments under ground leases and bad debt expenses) during
such period; but, in any case, before payment of or provision for debt service charges for such
period, income taxes for such period, capital expenses for such period, and depreciation,
amortization, and other non-cash expenses for such period, all as determined in accordance with
GAAP (except that any rent leveling adjustments shall be excluded from rental income).
Note Record. A Record with respect to any Note.
Notes. Collectively, the separate promissory notes of the Borrower in favor of each
Lender in substantially the form of Exhibit A hereto, in an aggregate principal amount
equal to Term Loan A, Term Loan B, Term Loan C and Term Loan D, respectively, in effect from time
to time, dated as of the date hereof or as of such later date as any Person becomes a Lender under
this Agreement, and completed with appropriate insertions, as each of such notes may be amended,
replaced, substituted and/or restated from time to time (including in connection with any
Increase).
-21-
Obligations. All indebtedness, obligations and liabilities of the Borrower and its
Subsidiaries to any of the Lenders or the Agent, individually or collectively (but without
double-counting), under this Agreement and each of the other Loan Documents and in respect of any
of the Term Loan (including Term Loan A, Term Loan B, Term Loan C and Term Loan D), the Notes and
the Security Documents and 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, and including any indebtedness,
obligations and liabilities of the Borrower and its Subsidiaries under any Protected Interest Rate
Agreement entered into with any Person that was a Lender at the time such Protected Interest Rate
Agreement was entered into or with any Person that has become a Lender, provided, in each case,
that written notice of the existence of such Protected Interest Rate Agreement has been provided to
the Agent and such Protected Interest Rate Agreement is for the purpose of hedging interest
exposure under this Agreement.
OFAC. The Office of Foreign Assets Control of the United States Department of the
Treasury.
Organizational Documents. Collectively, (i) the Agreement of Limited Partnership of
FPLP, (ii) the Certificate of Limited Partnership of FPLP, (iii) the Amended and Restated
Declaration of Trust of the Trust, (iv) the Amended and Restated By-Laws of the Trust, and (v) all
of the partnership agreements, corporate charters and by-laws, limited liability company operating
agreements, joint venture agreements or similar agreements, charter documents and certificates or
other agreements relating to the formation, organization or governance of the Borrower and each
Subsidiary Guarantor, in each case as any of the foregoing may be amended in accordance with §8.20.
Other Taxes. All present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.
Other Properties. All Real Estate Assets that are not DC Office Properties or Suburban
Office Properties.
Overhead Allocation. For any period, the amount of corporate overhead included as a
property operating expense in lieu of a management fee.
Partially-Owned Entity(ies). Any of the partnerships, associations, corporations,
limited liability companies, trusts, joint ventures or other business entities or Persons in which
the Borrower or the Trust, directly, or indirectly through its full or partial ownership of another
entity, own an Equity Interest, but which is not required in accordance with GAAP to be
consolidated with the Borrower or the Trust for financial reporting purposes.
-22-
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 Assets.
Permitted Amendments. See §2.11(c).
Permitted Liens. Liens permitted by §9.2.
Permitted Property. A property which is an income producing office, industrial or a
so-called flex property and is located in the State of Maryland, the Commonwealth of Virginia or
the District of Columbia.
Person. Any individual, corporation, general partnership, limited partnership, trust,
limited liability company, limited liability partnership, unincorporated association, business, or
other legal entity, and any government (or any governmental agency or political subdivision
thereof).
Pledged Distributions Entity(ies). Collectively, the Subsidiary Guarantors whose
Distributions to Borrower or a Wholly-owned Subsidiary of Borrower become Pledged Distributions
Interests.
Pledged Distributions Interests. Collectively, one hundred percent (100%) of the
Borrower’s or a Subsidiary Guarantor’s right, title and interest in and to Distributions received
from any Pledged Distributions Entity and of the Borrower’s or such Subsidiary Guarantor’s legal,
equitable and beneficial right, title and interest in and to Distributions from any Pledged
Distributions Entity, together with such additional rights and interests as are not prohibited to
be pledged, assigned and/or transferred under the applicable Property Level Loan Documents.
Pledged Distributions Properties. Collectively, the Eligible Borrowing Base
Properties directly or indirectly owned by the Pledged Distributions Entities.
Pledged Entities. Collectively, (i) the Pledged Distributions Entities and (ii) the
Pledged Equity Entities.
Pledged Equity Entity (ies). Collectively, the Subsidiary Guarantors whose Equity
Interests become Pledged Equity Interests.
Pledged Equity Interests. Collectively, one hundred percent (100%) of the legal,
equitable and beneficial ownership interests in any Subsidiary Guarantor that is a direct or
indirect owner of an Eligible Borrowing Base Property that are not subject to any Property Level
Loan Document which prohibit the pledge, assignment and/or transfer of such interests.
-23-
Pledged Equity Properties. Collectively, the Eligible Borrowing Base Properties
directly or indirectly owned by the Pledged Equity Entities.
Pledged Interests. Collectively, (i) the Pledged Distributions Interests and (ii) the
Pledged Equity Interests.
Pledged Properties. Collectively, (i) the Pledged Distributions Properties and (ii)
the Pledged Equity Properties.
Potomac Group. Collectively, (i) FPLP, (ii) the Trust, (iii) the respective
Subsidiaries of FPLP and the Trust and (iv) the Partially-Owned Entities.
Preferred Equity. Any preferred stock, preferred partnership interests, preferred
member interests or other preferred Equity Interests issued by the Borrower, the Trust or any of
their respective Subsidiaries.
Property Level Debt. Collectively, any Indebtedness secured by a Lien encumbering an
Eligible Borrowing Base Property which Lien is permitted pursuant to §9.2(ix), provided,
however, that in no event shall Property Level Debt include any Indebtedness under the Unsecured
Revolver.
Property Level Loan Documents. Collectively, the agreements, documents and
instruments evidencing, securing or otherwise relating to the Property Level Debt to which the
holder of such Property Level Debt is a party or intended beneficiary.
Protected Interest Rate Agreement. An agreement which evidences Interest Rate
Protection Arrangements required by §8.15, and all extensions, renewals, modifications, amendments,
substitutions and replacements thereof.
RCRA. See §7.18.
Real Estate Assets. The fixed and tangible properties consisting of Land and/or
Buildings owned by the Borrower or any of its Subsidiaries at the relevant time of
reference thereto, including, without limitation, the Eligible Borrowing Base Properties at such
time of reference.
Real Estate Asset Under Development. Real Estate Asset that is under development or
substantial redevelopment. A Real Estate Asset Under Development shall cease to constitute a Real
Estate Asset Under Development on the earlier of (a) the one-year anniversary date of the
development or redevelopment completion, and (b) the first day of the first full fiscal quarter
after such Real Estate Asset achieves a stabilized occupancy of 80%.
-24-
Record. The grid attached to any Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by any Lender with respect to any Loan.
Recourse. With reference to any obligation or liability, any liability or obligation
that is not Without Recourse to the obligor thereunder, directly or indirectly. For purposes
hereof, a Person shall not be deemed to be “indirectly” liable for the liabilities or obligations
of an obligor solely by reason of the fact that such Person has an ownership interest in such
obligor, provided that such Person is not otherwise legally liable, directly or indirectly,
for such obligor’s liabilities or obligations (e.g., without limitation, by reason of a guaranty or
contribution obligation, by operation of law or by reason of such Person being a general partner of
such obligor).
Redland Property. That certain Real Estate Asset owned by FP Redland Technology
Center LP commonly known as Land Units 2 and 3 in the Redland Tech Center Land Condominium formed
pursuant to the Declaration of Condominium for Redland Tech Center Land Condominium recorded in
Liber 19839 at folio 681 in the land records of Xxxxxxxxxx County, Maryland, as amended, and
located at 520 and 000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, together with all easements,
appurtenances, rights, privileges, reservations, tenements, and hereditaments belonging thereto.
REIT. A “real estate investment trust”, as such term is defined in Section 856 of the
Code.
Related Parties. With respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.
Release. See §7.18(c)(iii).
Reserve Percentage. The maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed on member banks of the Federal Reserve
System against “Euro-currency Liabilities” as defined in Regulation D.
XXXX. See §7.18.
SEC. The Securities and Exchange Commission, or any successor thereto.
SEC Filings. Collectively, (i) each Form 10-K, 10-Q and Form 8-K filed by the Trust
with the SEC from time to time and (ii) each of the other public forms and reports filed by the
Trust with the SEC from time to time.
Security Deeds. Collectively, the mortgage or deed of trust from each Collateral
Property Mortgagor to the Agent for the benefit of the Lenders (or to trustees named therein acting
on behalf of the Agent for the benefit of the Lenders), pursuant to which such Collateral Property
Mortgagor has conveyed to the Agent a first-priority security interest in and to the Eligible
Borrowing Base Property it owns as security for the Obligations, as the same may be modified,
amended or restated from time to time.
-25-
Security Documents. Collectively, (i) the Equity Pledge Agreement, (ii) the
Distributions Pledge Agreement, (iii) each Security Deed, (iv) each Assignment of Leases and Rents,
(v) the Account Agreement, (vi) any UCC-1 financing statement relating to the Collateral, and (vii)
each other document, agreement or instrument that at any time evidences the Collateral.
Secured Indebtedness. All Indebtedness of a Person that is secured by a Lien
evidenced by a mortgage, deed of trust, assignment of partnership interests or other security
interest or otherwise.
Stabilized Real Estate Asset. Any Real Estate Asset that is not a Real Estate Asset
Under Development, a Value-Add Real Estate Asset or Land.
Structured Finance Investments. Collectively, Investments by a Borrower or one of its
Subsidiaries directly or indirectly in (i) Mortgage Notes, (ii) mezzanine loans evidenced by
promissory notes in which the Borrower holds a direct interest as payee, to entities that hold
direct or indirect interests in DC Office Properties, and (iii) Investments in preferred equity
(including preferred limited partnership interests) in entities owning DC Office Properties.
Structured Finance Investments Value. As of any date of determination, an amount
equal to the aggregate value of all Structured Finance Investments, with the value of each
Structured Finance Investment being deemed to be the lower of (i) the acquisition or origination
cost of such Structured Finance Investment plus all commercially reasonable costs that are
capitalized in accordance with GAAP incurred in connection with the acquisition or origination of
such Structured Finance Investment, and (ii) the value of such Structured Finance Investment
determined in accordance with GAAP; provided, however, that in the case of any
Structured Finance Investment in respect of which the obligor is in default of any payment
obligation, the Structured Finance Investments Value shall be zero.
Subsidiary. Any corporation, association, partnership, limited liability company,
trust, joint venture or other business entity or Person which is required to be consolidated with
the Borrower or the Trust in accordance with GAAP.
Subsidiary Guarantors. Each of the direct and indirect Subsidiaries of the Borrower
which either owns an Eligible Borrowing Base Property or which has entered into a Subsidiary
Guaranty or any Security Document, as applicable. All of the Subsidiary Guarantors as of the
Amendment No. 5 Effective Date are set forth on Schedule 1.
-26-
Subsidiary Guaranty. Collectively, the one or more Subsidiary Guaranties made by
certain Subsidiary Guarantors, on a joint and several basis, in favor of the Agent and the Lenders,
together with any additional guaranty of the Obligations or joinder agreement to any existing
guaranty of the Obligations provided by any Subsidiary Guarantor hereafter, pursuant to which the
Subsidiary Guarantors guarantee to the Agent and the Lenders the unconditional payment and
performance of the Obligations, as the same may be modified, amended, restated or reaffirmed from
time to time.
Suburban Office Properties. Real Estate Assets constituting multi-story office
buildings located in the suburbs of the District of Columbia.
Swap Contract. (a) Any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.
Swap Termination Value. In respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the xxxx-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).
Taxes. All present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term Loan. Loan.
Term Loan A. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan A on the Amendment No. 3 Effective Date.
-27-
Term Loan B. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan B on the Amendment No. 3 Effective Date.
Term Loan C. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan C on the Amendment No. 3 Effective Date.
Term Loan D. The Term Loan in the principal amount equal to $10,000,000 made by the
Lenders to the Borrower and converted into Term Loan D on the Amendment No. 3 Effective Date.
Total Commitment. As of any date, the sum of the then current Commitments of the
Lenders under each of Term Loan A, Term Loan B, Term Loan C and Term Loan D. As of the Amendment
No. 3 Effective Date, the Total Commitment shall be $40,000,000.
Tranche. Any of Term Loan A, Term Loan B, Term Loan C, Term Loan D or any new term
loan tranche advanced hereunder pursuant to §2.8, as applicable.
Trust. See recitals.
Trust Guaranty. The Guaranty, dated as of the date hereof, made by the Trust in favor
of the Agent and the Lenders pursuant to which the Trust guarantees to the Agent and the Lenders
the unconditional payment and performance of the Obligations, as the same may be modified, amended,
restated or reaffirmed from time to time.
2011 Term Loan. Collectively, the term loans in the aggregate original principal
amount of $175,000,000 made pursuant to the 2011 Term Loan Agreement, as the same may be modified,
increased, refinanced, replaced, amended or restated from time to time.
2011 Term Loan Agreement. The Term Loan Agreement dated as of July 18, 2011, among
the Borrower, certain Subsidiaries of the Borrower, KeyBank National Association, individually and
as administrative agent and certain other lenders, as the same may be modified, increased,
refinanced, replaced, amended or restated from time to time.
Type. As to any portion of the Term Loan, its nature as a 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.
-28-
Unsecured Revolver. The $255,000,000 revolving credit facility pursuant to the
Unsecured Revolver Agreement, as the same may be modified, increased, refinanced, replaced, amended
or restated from time to time.
Unsecured Revolver Agreement. The Third Amended and Restated Revolving Credit
Agreement dated as of June 16, 2011, among the Borrower, the Unsecured Revolver Subsidiary
Borrowers, KeyBank National Association, individually and as administrative agent and certain other
lenders, as the same may be modified, increased, refinanced, replaced, amended or restated from
time to time.
Unsecured Revolver Subsidiary Borrowers. Collectively, each of the direct and
indirect Subsidiaries of the Borrower that from time to time is a borrower under the Unsecured
Revolver Agreement.
Unsecured Revolver Subsidiary Guarantors. Collectively, (i) the direct and indirect
Subsidiaries of the Borrower that, pursuant to the terms of §8.21(a) of the Unsecured Revolver
Agreement, at any time and from time to time, are required to enter into a guaranty of the
obligations under the Unsecured Revolver Agreement or a joinder agreement in respect of an existing
guaranty of such obligations and that have entered into the Additional Subsidiary Guaranty or an
Additional Subsidiary Guaranty Joinder Agreement, and (ii) the Unsecured Revolver Subsidiary
Borrowers that have entered into the Additional Subsidiary Guaranty or an Additional Subsidiary
Guaranty Joinder Agreement. All of the Unsecured Revolver Subsidiary Guarantors as of the
Amendment No. 5 Effective Date are set forth on Schedule 1B.
USA Patriot Act. See §31(a).
Value-Add Real Estate Assets. Any newly acquired Real Estate Asset that is less than
50% occupied at the time of acquisition. A Value-Add Real Estate Asset shall cease to constitute a
Value-Add Real Estate Asset at the earlier of (a) the first day of the first full fiscal quarter
after such Real Estate Asset achieves a stabilized occupancy of 80%, and (b) the one-year
anniversary of such Real Estate Asset’s acquisition date; provided that the Redland
Property shall be deemed a Value-Add Real Estate Asset until the earlier of (x) the date that the
value of the Redland Property calculated in accordance with clause (i) of the definition of Value
of Unencumbered Properties (as defined in the Unsecured Revolver Agreement) exceeds the Cost Basis
Value of the Redland Property (valued at the contract price paid by FPLP to acquire its interest in
FP Redland Tech) and (y) June 30, 2012.
-29-
Value of Eligible Borrowing Base Properties. At any date of determination, an amount
equal to, without double counting, the sum of (i) for all Stabilized Real Estate Assets, the
aggregate of the following amount determined for each such asset (x) the Net Operating Income for
the most recently ended fiscal quarter of each Eligible Borrowing Base Property that is a
Stabilized Real Estate Asset, multiplied by (y) 4; with the product thereof being
divided by (z) the applicable Capitalization Rate, plus (ii) an amount
equal to the aggregate Cost Basis Value of all Eligible Borrowing Base Properties that are
Value-Add Real Estate Assets, plus (iii) the aggregate Cost Basis Value of all Eligible
Borrowing Base Properties acquired during the most recently ended fiscal quarter and the
immediately preceding fiscal quarter, provided that (a) the Net Operating Income
attributable to any Eligible Borrowing Base Property sold or otherwise transferred during the
applicable period shall be excluded from the calculation of the Value of Eligible Borrowing Base
Properties and (b) the Net Operating Income of Eligible Borrowing Base Properties included at their
Cost Basis Value shall be excluded.
Wholly-Owned Subsidiary. Any single purpose entity which is a Subsidiary of FPLP and
of which FPLP at all times owns directly or indirectly (through a Subsidiary or Subsidiaries) 100%
of the outstanding voting or controlling interests and of the economic interests.
“Without Recourse” or “without recourse”. With reference to any obligation or
liability, any obligation or liability for which the obligor thereunder is not liable or obligated
other than as to its interest in a designated Real Estate Asset 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 and misapplication indemnities, as are usual and
customary in like transactions involving institutional lenders at the time of the incurrence of
such obligation or liability, and to usual and customary environmental indemnification obligations
in connection with such designated Real Estate Asset.
§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 or the terms of this Agreement.
(ii) The singular includes the plural and the plural includes the singular.
(iii) A reference to any law includes any amendment or modification to such law.
(iv) A reference to any Person includes its permitted successors and permitted
assigns.
(v) Accounting terms not otherwise defined herein have the meanings assigned to
them by generally accepted accounting principles applied on a consistent basis by the
accounting entity to which they refer.
(vi) The words “include”, “includes” and “including” are not limiting.
-30-
(vii) All terms not specifically defined herein or by generally accepted
accounting principles, 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.
§1.3. GAAP.
Unless otherwise indicated, all accounting terms, ratios and measurements shall be interpreted
or determined in accordance with GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Majority Lenders shall so request, the Agent, the Lenders and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Majority Lenders); provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall provide to the Agent and the Lenders
financial statements and other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP. For purposes of determining compliance with
any covenant (including the computation of any financial covenant) contained herein, Indebtedness
of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding
principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be
disregarded.
§2. THE TERM LOAN.
§2.1 Commitment to Lend. Subject to the provisions of §2.4, §12 and the other terms
and conditions set forth in this Agreement, each of the Lenders severally agrees to make a term
loan to the Borrower on the Closing Date (and thereafter pursuant to Section 2.8 hereof) in an
aggregate principal amount equal to such Lender’s Commitment Percentage of the Total Commitment.
The outstanding amount of the Term Loan shall not at any time exceed the Total Commitment. In no event
shall any Lender be required to fund any amounts in excess of its then-current Commitment.
The Term Loan shall be made pro rata in accordance with each Lender’s
Commitment Percentage. The request for the Term Loan shall constitute a representation and
warranty by the Borrower that the conditions set forth in §12 have been satisfied as of the Closing
Date, provided that the making of such representation and warranty by the Borrower shall
not limit the right of any Lender not to lend if such conditions have not been met. No portion of
the Term Loan or other extension of credit shall be required to be made by any Lender unless all of
the conditions contained in §12 have been satisfied as of the Closing Date.
-31-
§2.2. The Term Notes. The Term Loan shall be evidenced by the Term Notes. A Term
Note shall be payable to the order of each Lender in an aggregate principal amount equal to such
Lender’s Commitment. The Borrower irrevocably authorizes each Lender to make or cause to be made
an appropriate notation on such Lender’s applicable Note Record reflecting the making of its
portion of the Term Loan or (as the case may be) the receipt of any payment thereon. The
outstanding amount of the Term Loan set forth on such applicable 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 Note Record shall not
limit or otherwise affect the rights and obligations of the Borrower hereunder or under any Term
Note to make payments of principal of or interest on any Term Note when due. Promptly following
termination of this Agreement, at the written request of the Borrower, each Lender shall return to
the Borrower any Notes issued to such Lender or, if unable to return such Note, issue a lost note
affidavit in form and substance reasonably satisfactory to the Borrower.
§2.3. Interest on the Term Loan.
(a) Each Base Rate Loan shall bear interest for the period commencing with the Drawdown Date
thereof up to and including the date upon which the entire outstanding principal balance of such
Base Rate Loan is paid in full at a rate equal to the Base Rate plus the Applicable Base
Rate Margin.
(b) Each Libor Rate Loan shall bear interest on the outstanding principal amount thereof
commencing with the Drawdown Date thereof and ending on the last day of each Interest Period with
respect thereto (unless earlier paid in accordance with §3.2), or, if later, the date upon which
such Libor Rate Loan is paid in full, at a rate per annum equal to the Libor Rate determined for
such Interest Period plus the Applicable Libor Margin.
(c) [Reserved]
(d) The Borrower unconditionally promises to pay interest on each Term Loan in arrears on each
Interest Payment Date with respect thereto, and when the principal of such Term Loan is due
(whether at maturity, by reason of acceleration or otherwise).
-32-
§2.4. Request for the Term Loan.
The following provisions shall apply to the initial request by the Borrower for the Term Loan:
(i) The Borrower shall submit a Completed Loan Request to the Agent. The
Completed Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Term Loan requested from the Lenders on the
Closing Date.
(ii) The Completed Loan Request shall specify: (1) the principal amount of the
Term Loan, (2) the Interest Period applicable to such Term Loan (or portions
thereof), and (3) the Type of Loan being requested, and certifying that, after
giving effect to such requested Term Loan, no Default or Event of Default will
exist under this Agreement or any other Loan Document and that, after giving effect
to the Term Loan, the Borrower is in compliance with the covenants set forth in §10
(which calculations required by such covenants shall be submitted with such
Completed Loan Request).
(iii) No Lender shall be obligated to fund any portion of the Term Loan
unless:
(a) a Completed Loan Request has been timely received by the Agent as
provided in subsection (i) above; and
(b) both before and after giving effect to the Term Loan to be made
pursuant to the Completed Loan Request, all of the conditions contained in
§12 shall have been satisfied as of the Closing Date.
§2.5. Conversion Options.
(a) The Borrower may elect from time to time to convert any outstanding Libor Rate Loan to a
Base Rate Loan or any outstanding Base Rate Loan to a Libor Rate Loan, provided that (i)
with respect to any such conversion of a Libor Rate Loan to a Base Rate Loan, the Borrower shall
give the Agent at least three (3) Libor Business Days’ prior written notice of such election, which
notice must be received by the Agent by 11:00 a.m. on any Libor Business Day, and (ii) subject to
the provisos in this
§2.5(a) and subject to §2.5(b) and §2.5(d), with respect to any conversion of a Base Rate Loan to a
Libor Rate Loan, the Borrower shall give the Agent at least three (3) Libor Business Days’ prior
written notice of such election, which notice must be received by the Agent by 11:00 a.m. on any
Libor Business Day; provided that 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 Libor
Rate Loans may be converted to Base Rate Loans and vice versa as provided herein, provided
that each Conversion Request relating to the conversion of a Base Rate Loan to a Libor Rate Loan
shall be for an amount equal to $1,000,000 or an integral multiple of $100,000 in excess thereof
and shall be irrevocable by the Borrower.
-33-
(b) Subject to the proviso at the end of this §2.5(b) and §2.5(d), any Libor Rate Loan may be
continued automatically as such upon the expiration of the Interest Period with respect thereto as
set forth in §2.5(c) or by compliance by the Borrower with the notice provisions contained in
§2.5(a)(ii); 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 a 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.
(c) Subject to the provisions of §2.5(a), §2.5(b) and §2.5(d), in the event that the Borrower
does not notify the Agent of its election hereunder with respect to any Base Rate Loan upon the
expiration of the Interest Period or Libor Rate Loan, such portion of the Term Loan shall be
automatically converted to (or continued as) a Libor Rate Loan having a 1-month Interest Period at
the end of the applicable Interest Period.
(d) The Borrower may not request or elect a Libor Rate Loan pursuant to §2.4, elect to convert
a Base Rate Loan to a Libor Rate Loan pursuant to §2.5(a) or elect to continue a Libor Rate Loan
pursuant to §2.5(b), and no Base Rate Loan shall be automatically converted to, and no Libor Rate
Loan shall be automatically continued as, a Libor Rate Loan, if, after giving effect thereto there
would be greater than seven (7) Libor Rate Loans then outstanding. Any Loan Request or Conversion
Request for a Libor Rate Loan that would create greater than seven (7) Libor Rate Loans outstanding
shall be deemed to be a Loan Request or Conversion Request for a Base Rate Loan. By way of
explanation of the foregoing, in the event that the Borrower wishes to convert or continue two or
more Loans into one Libor Rate Loan on the same day and for identical Interest Periods, such Libor
Rate Loan shall constitute one single Libor Rate Loan for purposes of this clause (d).
(e) The Agent will promptly notify each Lender of any Conversion Request received pursuant to
§2.5(a) or continuation pursuant to §2.5(b) in accordance with its customary practices.
§2.6. [Reserved]
§2.7. [Reserved]
§2.8. Increase in Total Commitment. At any time (but at least 60 days prior to the Maturity
Date), the Borrower shall have the right, upon written notice to the Agent and satisfaction of the
Increase Conditions and without obtaining further consent of the Lenders, to cause the Total
Commitment to increase by an amount not at any time exceeding $50,000,000 (the “Increase”), in
which event Schedule 2 will be deemed to be amended to reflect the increased Commitment of
each Lender, if any, that has agreed in writing to an increase and to add any third party financial
institution that may have become a party to, and a “Lender” under, this Agreement
-34-
in connection
with the Increase (and the Agent is hereby authorized to effect such amendment on behalf of the
Lenders
and the Borrower, together with other conforming amendments); provided,
however, that it shall be a condition precedent to the effectiveness of the Increase that
the Increase Conditions shall have been satisfied. In the event that the Increase results in any
change to the Commitment Percentage of any Lender, then on the effective date of such Increase in
the Total Commitment (i) any new Lender, and any existing Lender whose Commitment has increased,
shall pay to the Agent such amounts as are necessary to fund its new or increased Commitment
Percentage of the Term Loan, and (ii) if the effective date of such Increase in the Total
Commitment occurs on a date other than the last day of an Interest Period applicable to any
outstanding Libor Rate Loan, the Borrower will be responsible for Libor Breakage Costs and any
other amounts payable pursuant to §4.8 on account of the payments made pursuant to clause (ii)
above. No Lender shall have any obligation to increase its Commitment in connection with the
Increase.
§2.9. [Reserved].
§2.10 [Reserved]
§2.11 Certain Permitted Amendments.
(a) Loan Modification Offer. The Borrower may, by written notice to the Agent from
time to time make one or more offers (each, a “Loan Modification Offer”) to (i) all the Lenders or
(ii) all the Lenders of any Tranche, to make one or more Permitted Amendments pursuant to
procedures reasonably specified by the Agent and reasonably acceptable to the Borrower. Such
notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii)
the date on which such Permitted Amendment is requested to become effective (which shall not be
less than 10 Business Days after the date of such notice, unless otherwise agreed to by the Agent).
Notwithstanding anything to the contrary in §28, each Permitted Amendment shall only require the
consent of the Borrower, the Agent and those Lenders that accept the applicable Loan Modification
Offer (such Lenders, the “Accepting Lenders”), and each Permitted Amendment shall
become effective only with respect to the Loans and Commitments of the Accepting Lenders. In
connection with any Loan Modification Offer that has been accepted by the Majority Lenders, the
Borrower may, with the prior written consent of the Agent, terminate the aggregate Commitments (or,
in the case of a Loan Modification Offer made to a single Tranche, the aggregate Commitments in
respect of such Tranche) of one or more of the Lenders that are not Accepting Lenders, and in
connection therewith shall repay in full all outstanding Loans (or, in the case of a Loan
Modification Offer made to a single Tranche, the outstanding Loans in respect of such Tranche), and
accrued but unpaid interest and fees (along with any amount owing pursuant to §4.8), at such time
owing to such terminated Lender, with such termination taking effect, and any related repayment
being made, upon the effectiveness of the Permitted Amendment. Additionally, to the extent the
Borrower has terminated the Commitments (or the Commitments in respect of any Tranche) of such
Lenders, it may request any other Eligible Assignee to provide a commitment to make loans on the
terms set forth in such Loan Modification Offer in an amount not to exceed the amount of the
Commitments terminated pursuant to the preceding sentence.
-35-
(b) Loan Modification Agreement. The Borrower and each Accepting Lender shall execute
and deliver to the Agent a Loan Modification Agreement and such other documentation as the Agent
shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and
conditions thereof, which Loan Modification Agreement shall be acceptable to the Agent, the
Borrower and each Accepting Lender. The Administrative Agent shall promptly notify each Lender as
to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees
that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed
amended to the extent (but only to the extent) necessary to reflect the existence and terms of the
Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the
Accepting Lenders, including any amendments necessary to treat the applicable Loans and/or
Commitments of the Accepting Lenders as a new Tranche hereunder.
(c) Permitted Amendments. “Permitted Amendments” means any or all of the following:
(i) an extension of the Maturity Date applicable solely to the Loans and/or Commitments of the
Accepting Lenders, (ii) an increase in the interest rate solely with respect to the Loans and/or
Commitments of the Accepting Lenders, (iii) the inclusion of additional fees to be payable solely
to the Accepting Lenders in connection with the Permitted Amendment (including any upfront fees),
(iv) such conforming amendments to this Agreement and the other Loan Documents as shall be
appropriate, in the reasonable judgment of the Agent, to provide the rights and benefits of this
Agreement and other Loan Documents on a pari passu basis to each new Tranche resulting therefrom,
and (v) such other conforming amendments to this Agreement and the other Loan Documents as shall be
appropriate, in the reasonable judgment of the Agent, to give effect to the foregoing Permitted
Amendments; provided that the Agent shall be permitted to seek the approval of the Majority
Lenders of any proposed amendment pursuant to the foregoing clauses (iv) or (v) as the Agent, in
its sole discretion, deems appropriate.
(d) Miscellaneous. This §2.11 shall supersede any provision in §28 to the contrary.
§2.12 Reverse Dutch Auction Repurchases.
(a) The Borrower may, at any time and from time to time after the Closing Date, conduct
auctions as hereinafter described in order to purchase and retire Loans (each, an “Auction”) (each
such Auction to be managed exclusively by the Agent), and such repurchases of Loans will not be
deemed to be voluntary or mandatory payments or prepayments for purposes of §3.2, so long as the
following conditions are satisfied:
(i) each Auction shall be conducted in accordance with the procedures, terms
and conditions set forth in this §2.12 and Schedule 2.12;
(ii) no Default or Event of Default shall have occurred and be continuing at
the time of the offer to, or at the time of the purchase of, any Loans in
connection with any Auction or shall occur as a result of such purchase;
-36-
(iii) the minimum principal amount (calculated on the face amount thereof) of
all Loans that the Borrower offers to purchase in any such Auction shall be no less
than $5,000,000 (or integral multiples of $1,000,000 in excess thereof) (unless
another amount is agreed to by the Agent);
(iv) the aggregate principal amount (calculated on the face amount thereof) of
all Loans so purchased by the Borrower shall automatically be cancelled and retired
by the Borrower on the settlement date of the relevant purchase (and may not be
resold);
(v) no more than one Auction may be ongoing at any one time;
(vi) each Auction shall be open and offered to all Lenders of the relevant
Tranche and the relevant Type on a pro rata basis; and
(vii) at the time of each purchase of Loans through an Auction, the Borrower
shall have delivered to the Agent an officer’s certificate of an authorized officer
certifying as to compliance with this clause (a).
(b) Each Lender may (but shall have no obligation whatsoever to) participate in any Auction
conducted pursuant to this §2.12.
(c) The Borrower must terminate an Auction if it fails to satisfy one or more of the
conditions set forth in §2.12(a). If the Borrower commences any Auction and if at such time of
commencement the Borrower reasonably believes that all required conditions set forth in §2.12(a)
have been satisfied, then any failure to satisfy one or more of the conditions set forth above
shall not result in any Default or Event of Default hereunder, provided that the Auction is
then terminated. With respect to all purchases of Loans made by the Borrower pursuant to this
§2.12, (x) the Borrower shall pay on the
settlement date of each such purchase all accrued and unpaid interest (except to the extent
otherwise set forth in the relevant offering documents), if any, on the purchased Loans up to the
settlement date of such purchase and (y) such purchases (and the payments made by the Borrower and
the cancellation of the purchased Loans, in each case in connection therewith) shall not constitute
voluntary payments or prepayments for purposes of §3.2 .
(d) The Agent and the Lenders hereby consent to the Auctions and the other transactions
contemplated by this §2.12 (provided that no Lender shall have any obligation whatsoever to
participate in any such Auctions) and hereby waive the requirements of any provision of this
Agreement (including, without limitation, §3.2 (it being understood and acknowledged that purchases
of the Loans by the Borrower contemplated by this §2.12 shall not constitute Investments by the
Borrower)).
-37-
(e) Each Lender participating in any Auction hereby acknowledges and agrees that in connection
with such Auction, (1) the Borrower may have, and later may come into possession of, information
regarding the Loans or the Borrower or its Subsidiaries that is not known to such Lender and that
may be material to a decision by such Lender to participate in such Auction (such information, the
“Excluded Information”), (2) such Lender has independently, without reliance on the Borrower, any
of its Subsidiaries, the Agent or any of their respective Affiliates, made its own analysis and
determination to participate in such Auction notwithstanding such Lender’s lack of knowledge of the
Excluded Information and (3) none of the Borrower, its Subsidiaries, the Agent or any of their
respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and
releases, to the extent permitted by law, any claims such Lender may have against the Borrower, its
Subsidiaries, the Agent, and their respective Affiliates, under applicable laws or otherwise, with
respect to the nondisclosure of the Excluded Information.
(f) The Borrower agrees to pay to Agent the Agent Auction Fee in connection with each Auction
no later than three (3) Business Days after the date the Return Bids submitted by Lenders in
connection therewith were due.
§3. REPAYMENT OF THE TERM LOAN.
§3.1. Maturity. The Borrower promises to pay on the applicable Maturity Date, and
there shall become absolutely due and payable on the applicable Maturity Date, all unpaid principal
of each of Term Loan A, Term Loan B, Term Loan C and Term Loan D 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.
§3.2. Optional Repayments of the Term Loan. The Borrower shall have the right, at its
election, to prepay the outstanding amount of each Term Loan, in whole or in part, at any time
without penalty or premium; provided that (i) any such voluntary prepayment shall be
applied first to outstanding amounts under Term Loan A, then to outstanding amounts under Term Loan
B, then to the outstanding amounts under Term Loan C and then to outstanding amounts under Term
Loan D and (ii) the outstanding amount of any Libor Rate Loans may not be prepaid on a date other
than the last day of an Interest Period unless the Borrower pays the Libor Breakage Costs for each
Libor Rate Loan so prepaid at the time of such prepayment. The Borrower shall give the Agent, no
later than 10:00 a.m., Cleveland, Ohio time, at least two (2) Business Days’ prior written notice
of any prepayment pursuant to this §3.2 of any Base Rate Loans, and at least four (4) Business
Days’ notice of any proposed prepayment pursuant to this §3.2 of Libor Rate Loans, specifying the
proposed date of prepayment and the principal amount to be prepaid. Each such partial prepayment
of the Term Loan shall be in an amount equal to $1,000,000 or an integral multiple of $1,000,000 in
excess thereof or, if less, the then outstanding balance of any Tranche or the entire outstanding
balance of the Term Loan, as applicable, shall be accompanied by the payment of all charges, if
any, outstanding on the Term Loan 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 Base Rate Loans and then to the principal of Libor Rate Loans.
-38-
§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 Agent, for the respective accounts of the
Lenders or (as the case may be) the Agent, at the Agent’s Head Office, in each case in Dollars and
in immediately available funds. The Borrower shall make each payment of principal of and interest
on the Term Loan and of fees hereunder not later than 12:00 p.m. (Cleveland, Ohio time) on the due
date thereof.
(b) Any and all payments by or on account of any obligation of the Borrower hereunder or under
any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of
and without reduction or withholding for any Taxes. If, however, applicable Laws require the
Borrower or the Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in
accordance with such Laws as determined by the Borrower or the Agent, as the case may be, upon the
basis of the information and documentation to be delivered pursuant to subsection (e) below.
(c) If the Borrower or the Agent shall be required by the Code to withhold or deduct any
Taxes, including both United States Federal backup withholding and withholding taxes, from any
payment, then (A) the Agent shall withhold or make such deductions as are determined by the Agent
to be required based upon the information and documentation it has received pursuant to subsection
(e) below, (B) the Agent shall timely pay the full amount withheld or deducted to the relevant
Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or
deduction is made
on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be
increased as necessary so that after any required withholding or the making of all required
deductions (including deductions applicable to additional sums payable under this Section) the
Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had
no such withholding or deduction been made.
(d) Without limiting the provisions of subsection (b) above, the Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.
(e) Without limiting the provisions of subsection (b) or (d) above, the Borrower shall, and
does hereby, indemnify the Agent and each Lender and shall make payment in respect thereof within
15 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this §4.1) withheld or deducted by the Borrower or the Agent or paid by the Agent or
such Lender, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower
shall also, and does hereby, indemnify the Agent, and shall make payment in respect thereof within
10 days after demand therefor, for any amount which a Lender for any reason fails to pay
indefeasibly to the Agent as required by subsection (f) of this §4.1. A certificate as to the
amount of any such payment or liability delivered to the Borrower by a Lender (with a copy to the
Agent), or by the Agent on its own behalf or on behalf of Lender, shall be prima facie evidence
that such amounts are due and owing.
-39-
(f) Without limiting the provisions of subsection (a) or (b) above, each Lender shall, and
does hereby, indemnify the Borrower and the Agent, and shall make payment in respect thereof within
10 days after demand therefor, against any and all Taxes and any and all related losses, claims,
liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any
counsel for the Borrower or the Agent) incurred by or asserted against the Borrower or the Agent by
any Governmental Authority as a result of the failure by such Lender to deliver, or as a result of
the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such
Lender to the Borrower or the Agent pursuant to subsection (h) of this §4.1. Each Lender hereby
authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender
under this Agreement or any other Loan Document against any amount due to the Agent under this
clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement
of the Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all other Obligations.
(g) Upon request by the Borrower or the Agent, as the case may be, after any payment of Taxes
by the Borrower or by the Agent to a Governmental Authority as provided in this §4.1, the Borrower
shall deliver to the Agent or the Agent shall deliver to the Borrower, as the case may be, the
original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of any return required by Laws to
report such payment or other evidence of such payment reasonably satisfactory to the Borrower or
the Agent, as the case may be.
(h) (i) Each Lender shall deliver to the Borrower and to the Agent, at the time or times
prescribed by applicable Laws or when reasonably requested by the Borrower or the Agent, such
properly completed and executed documentation prescribed by applicable Laws or by the taxing
authorities of any jurisdiction and such other reasonably requested information as will permit the
Borrower or the Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of
withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower
pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax
purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if the Borrower is resident for
tax purposes in the United States,
-40-
(A) any Lender that is a “United States person” within the meaning of
Section 7701(a)(30) of the Code shall deliver to the Borrower and the
Agent executed originals of Internal Revenue Service Form W-9 or such
other documentation or information prescribed by applicable Laws or
reasonably requested by the Borrower or the Agent as will enable the
Borrower or the Agent, as the case may be, to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements; and
(B) each Foreign Lender that is entitled under the Code or any
applicable treaty to an exemption from or reduction of withholding tax
with respect to payments hereunder or under any other Loan Document shall
deliver to the Borrower and the Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Agent, but only if
such Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
| (I) | executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, | ||
| (II) | executed originals of Internal Revenue Service Form W-8ECI, | ||
| (III) | executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation, | ||
| (IV) | in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN, or |
-41-
| (V) | executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Agent to determine the withholding or deduction required to be made. |
(C) If a payment made to a Lender under any Loan Document would be
subject to U.S. Federal withholding tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA
(including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Lender shall deliver to the Borrower and the Agent, at
the time or times prescribed in law and at such time or times reasonably
requested by the Borrower or the Agent, such documentation prescribed by
applicable law (including prescribed by Section 1471(b)(3)(C)(i) of the
Code) and such additional documentation reasonably requested by the
Borrower or the Agent as may be necessary for the Borrower or the Agent to
comply with its obligations under FATCA, to determine that such Lender has
or has not complied with such Lender’s obligations under FATCA and, as
necessary, to determine the amount to deduct and without from such
payment. Solely for purposes of this §4.1(h)(iii),
“FATCA” shall include any amendments made to FATCA after the date of
this Agreement.
(i) Each Lender shall promptly (A) notify the Borrower and the Agent of any change in
circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take
such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Agent make
any withholding or deduction for taxes from amounts payable to such Lender.
(j) Unless required by applicable Laws, at no time shall the Agent have any obligation to file
for or otherwise pursue on behalf of a Lender or have any obligation to pay to any Lender, any
refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the Agent
or any Lender determines, in its sole discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses incurred by the Agent or such Lender, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the Agent
or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the Agent or such Lender in the
event the Agent or such Lender is required to repay such refund to such Governmental Authority.
This subsection shall not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes that it deems confidential) to the Borrower
or any other Person.
-42-
§4.2. Computations. All computations of interest on Libor Rate Loans and of other
fees to the extent applicable shall be based on a 360-day year and all computations of interest on
Base Rate Loans shall be based on a 365/366 day year, in each case 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 or record attached to any other Note 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 Agent shall determine that adequate and reasonable methods do
not exist for ascertaining the Libor Rate that would otherwise determine the rate of interest to be
applicable to any Libor Rate Loan during any Interest Period, the 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 Conversion Request with respect to Libor Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans, (b) each Libor Rate Loan
will automatically, on the last day of the then current Interest Period applicable thereto, become
a Base Rate Loan, and (c) the obligations of the Lenders to make Libor Rate Loans shall be
suspended, in each case unless and until the Agent determines that the circumstances giving rise to
such suspension no longer exist, whereupon the Agent shall so notify the Borrower and the Lenders,
and at the Borrower’s option, such Base Rate Loans shall be converted to Libor Rate Loans pursuant
to a Conversion Request submitted by the Borrower in accordance with §2.5.
§4.4. Illegality. Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or in the interpretation or application thereof shall
make it unlawful for any Lender to make or maintain Libor Rate Loans, such Lender shall forthwith
give notice of such circumstances to the Agent and the Borrower and thereupon (a) the obligation of
such Lender to make or continue Libor Rate Loans or convert Base Rate Loans to Libor Rate Loans
shall forthwith be suspended and (b) such Lender’s Commitment Percentage of Libor Rate Loans then
outstanding shall be converted automatically to Base Rate Loans on the last day
-43-
of each Interest
Period
applicable to such Libor Rate Loans or within such earlier period as may be required by law,
all until such time as it is no longer unlawful for such Lender to make or maintain Libor Rate
Loans, whereupon such Lender shall so notify the Agent and the Borrower promptly, and at the
Borrower’s option, such Base Rate Loans shall be converted to Libor Rate Loans pursuant to a
Conversion Request submitted by the Borrower in accordance with §2.5. The Borrower hereby agrees
promptly to pay the Agent for the account of such Lender, upon demand, any additional amounts
necessary to compensate such Lender for Libor Breakage Costs incurred by such Lender in making any
conversion required by this §4.4 prior to the last day of an Interest Period.
§4.5. Additional Costs, Etc.
If any Change in Law shall:
(a) subject any Lender or the Agent to any tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s
Commitment or the Loans (other than Indemnified Taxes or Other Taxes covered by §4.1), or
(b) change the basis of taxation (other than with respect to (i) Excluded Taxes and (ii)
Indemnified Taxes or Other Taxes covered by §4.1) of payments to any Lender of the principal of or
the interest on any Loans or any other amounts
payable to the Agent or any Lender under this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent specifically provided
for elsewhere in this Agreement) any special deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or letters of credit issued by, or
commitments of an office of any Lender, or
(d) impose on any Lender or the Agent any other conditions or requirements with respect to
this Agreement, the other Loan Documents, the Loans, such Lender’s Commitment, or any class of
loans or commitments of which any of the Loans or such Lender’s Commitment forms a part;
and the result of any of the foregoing is
(A) to increase the cost to any Lender of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Lender’s
Commitment, or
(B) to reduce the amount of principal, interest or other amount
payable to such Lender or the Agent hereunder on account of such Lender’s
Commitment or any of the Loans, or
-44-
(C) to require such Lender or the Agent to make any payment or to
forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Lender
or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, promptly upon demand made by the Agent or such
Lender (such demand to be made promptly by the Agent or such Lender upon the making of any such
determination), at any time and from time to time and as often as the occasion therefor may arise,
pay to such Lender or the Agent such additional amounts as such Lender or the Agent shall determine
in good faith to be sufficient to compensate such Lender or the Agent for such additional cost,
reduction, payment or foregone interest or other sum, provided that such Lender or the Agent is
generally imposing similar charges on its other similarly situated borrowers. The Agent shall
provide the Borrower with a calculation, in reasonable detail, of such amounts in accordance with
its customary practices.
§4.6. Capital Adequacy. If any Change in Law affects the amount of capital required
or expected to be maintained by banks or bank holding companies and any Lender or the Agent
determines that the amount of capital required to be maintained by it is increased by or based upon
the existence of Loans made or deemed to be made pursuant hereto, then such Lender or the Agent may
notify the Borrower of such fact, and the Borrower shall pay to such Lender or the Agent from time
to time, promptly upon demand made by the Agent or such Lender (such demand to be made promptly by
the Agent or such Lender upon the making of any such determination), as an additional fee payable
hereunder, such amount as such Lender or the Agent shall determine reasonably and in good faith and
certify in a notice to the Borrower to be an amount that will adequately compensate such Lender in
light of these circumstances for its increased costs of maintaining such capital. Each Lender and
the Agent shall allocate such cost increases among its customers in good faith and on an equitable
basis, and will not charge the Borrower unless it is generally imposing a similar charge on its
other similarly situated borrowers. The Agent shall provide the Borrower with a calculation, in
reasonable detail, of such amounts in accordance with its customary practices.
§4.7. Certificate; Limitations. A certificate setting forth any additional amounts
payable pursuant to §§4.5 or 4.6 and a brief explanation of such amounts which are due, submitted
by any Lender or the Agent to the Borrower, shall be prima facie evidence that such amounts are due
and owing; provided, that none of the Agent or Lenders shall be entitled to claim any such amount
pursuant to §§4.5 or 4.6 if such Person fails to provide such notice to the Borrower within 180
days of the date Agent or such Lender becomes aware of the occurrence of the event giving rise to
the amount it claims as being owed. Notwithstanding anything to the contrary contained in this
Article 4, if any Lender requests compensation under §§4.5 or 4.6, or the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to §4.1, or if any Lender gives a notice
-45-
pursuant to §4.4, such
Lender shall use
reasonable efforts to designate a different Lending Office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender such designation or assignment (a) would eliminate
or reduce amounts payable pursuant to §§4.1, 4.5 or 4.6, as the case may be, in the future, or
eliminate the need for the notice pursuant to §4.4, as applicable, and (ii) in each case, would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
§4.8. Indemnity. In addition to the other provisions of this Agreement regarding such
matters, the Borrower agrees to indemnify the Agent and each Lender and to hold the Agent and each
Lender harmless from and against any loss, cost or expense that the Agent or such Lender may
sustain or incur as a consequence of (a) a default by the Borrower in the payment of any principal
amount of or any interest on any Libor Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by the 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 or continuation of a Libor Rate Loan
after the Borrower has given a Completed Loan Request or Conversion Request for the same, and (c)
the making of any payment of a Libor Rate Loan or the conversion of any such Loan to a 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 Agent or a Lender to lenders of funds obtained by it in
order to maintain any such Libor Rate Loans.
§4.9. Interest After Default.
(a) Overdue Amounts. Notwithstanding anything to the contrary stated herein, overdue
principal and (to the extent permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan Documents shall bear interest at
the rate otherwise applicable thereto plus 2%, compounded daily until such amount shall be paid in
full (after as well as before judgment).
(b) Amounts Not Overdue. Notwithstanding anything to the contrary stated herein, upon
the occurrence and during the continuance of an Event of Default, at the option of the Majority
Lenders, to the extent permitted by applicable law, the unpaid principal balance of all Obligations
not overdue shall bear interest at the rate otherwise applicable thereto plus 2% until such Event
of Default is cured or waived to the satisfaction of the Agent and the Majority Lenders.
-46-
§4.10. Right to Replace Lender
If (w) a Lender requests compensation or the Borrower is required to pay any additional
amounts pursuant to §§4.1(b), 4.5 or 4.6, (x) a Lender’s obligations with respect to Libor Rate
Loans are suspended pursuant to §4.4, (y) in connection with any proposed amendment, modification,
termination, waiver or consent which requires the approval of each Lender or each Lender directly
affected thereby, and with respect to which approvals from the Majority Lenders have been obtained,
a Lender that has not given, or been deemed to have given, its approval of such matter, or (z) a
Lender is a Defaulting Lender, then, so long as there does not then exist any Default or Event of
Default, the Borrower may demand that such Lender (the “Affected Lender”) assign its Commitment to
an Eligible Assignee designated by the Borrower and approved by the Agent (or designated by the
Agent and approved by the Borrower), and upon such demand the Affected Lender shall promptly assign
its Commitment to an Eligible Assignee subject to and in accordance with the provisions of §20.1
for a purchase price equal to the aggregate principal balance of the Loan then owing to the
Affected Lender, plus any accrued but unpaid interest thereon and accrued but unpaid fees owing to
the Affected Lender (or such lesser amount as may be agreed on by the Affected Lender and such
Eligible Assignee) and upon such assignment the Borrower shall pay the fee specified in §20.3.
Subject to the approval rights of the Agent, each of the Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of such Affected Lender under this §4.10.
§4.11. Defaulting Lenders.
4.11.1 Adjustments. Notwithstanding anything to the contrary contained in this
Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no
longer a Defaulting Lender, to the extent permitted by applicable law:
(a) Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
§28.
(b) Reallocation of Payments. A Defaulting Lender shall be deemed to have assigned
any and all payments due to it from the Borrower, whether on account of the outstanding Term Loan,
interest, fees or otherwise, to the remaining non-defaulting Lenders for application to, and
reduction of, their respective pro rata shares of all outstanding Loans. The Defaulting Lender
hereby authorizes the Agent to distribute such payments to the non-defaulting Lenders in proportion
to their respective pro rata shares of the outstanding Term Loans. If not previously satisfied
directly by the Defaulting Lender, a Defaulting Lender shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned payments to the outstanding
Term Loan of the nondelinquent Lenders, the Lenders’ respective pro rata shares of the outstanding
Term Loan have returned to those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
(c) Fees. That Defaulting Lender shall not be entitled to receive any fees for any
period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to
pay any such fee that otherwise would have been required to have been paid to that Defaulting
Lender).
-47-
4.11.2 Defaulting Lender Cure. If the Borrower and the Agent agree in writing in
their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting
Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein, that Lender will take such other
actions as the Agent may determine to be necessary to cause the Loans to be held on a pro rata
basis by the Lenders in accordance with their Commitment Percentages, whereupon that Lender will
cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with
respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a
Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by
the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver
or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.
§5. COLLATERAL
§5.1. Security Interests. The Obligations shall be secured by (i) a perfected
first-priority lien on, or security title and security interest to be held by the Agent for the
benefit of the Lenders in, the Collateral, and (ii) such additional collateral, if any, as the
Agent, for the benefit of the Lenders from time to time may accept as security for the Obligations.
The Obligations shall also be guaranteed pursuant to the terms of the Subsidiary Guaranties.
§5.2. Pledged Equity Properties; Pledged Distributions Properties. No Eligible
Borrowing Base Property shall be permitted to be a Pledged Distributions Property unless the
applicable Property Level Loan Documents prohibit such Eligible Borrowing Base Property from being
a Pledged Equity Property, in which event such Eligible Borrowing Base Property shall be permitted
to be a Pledged Distributions Property.
§5.3. Mortgage Collateral Properties.
(a) If at any time an Eligible Borrowing Base Property is no longer subject to Property Level
Loan Documents due to payment in full of the applicable Property Level Debt, the Borrower, no later
than the date next occurring by which the Borrower is required to deliver a Certificate of
Compliance pursuant to §8.4(e), shall notify the Agent of the same. If the Agent shall so request,
in the Agent’s reasonable discretion, the Borrower shall cause the Subsidiary Guarantor that owns
such Eligible Borrowing Base Property to deliver, no later than thirty (30) days after the Agent’s
request therefor (or such later date as approved by the Agent in its reasonable discretion), the
following items, each of which shall be in form and substance reasonably satisfactory to the Agent:
(i) a Security Deed, (ii) an Assignment of Leases and Rents, (iii) an ALTA loan title insurance
policy issued by an insurer reasonably acceptable to the Agent, (iv) a legal opinion addressed to
the Agent and the Lenders from Xxxxx Lovells LLP (and state-specific local counsel as may be
necessary to furnish a legal opinion respecting the enforceability of the Security Deed and the
Assignment of
-48-
Leases and Rents), (v) properly completed Uniform Commercial Code financing
statements as required to perfect the security interests granted to Agent pursuant to the Security
Deed and the Assignment of Leases and Rents, (vi) copies of Uniform Commercial Code search reports
listing all effective financing statements filed against such Subsidiary Guarantor, with copies of
such financing statements, as well as copies of such tax, litigation, judgment, bankruptcy,
intellectual property and any other search reports the Agent may reasonably request, and (vii) any
other documents, instruments, agreements or information reasonably requested by Agent in connection
therewith (the items described in the foregoing clauses (i) through (vii) collectively are referred
to herein as the “Mortgage Documents”); provided, however, if the repayment in full
of the applicable Property Level Debt has occurred in connection with the sale or other permanent
disposition of the applicable Eligible Borrowing Base Property in compliance with the terms and
conditions of this Agreement or the refinancing
of such Eligible Borrowing Base Property with mortgage Indebtedness in compliance with the
terms and conditions of this Agreement, this §5.3(a) shall not apply.
(b) In satisfaction of the notice requirements under §5.3(a), the Borrower, the Trust and the
Subsidiary Guarantors hereby notify, and jointly and severally represent and warrant to, the Agent
and the Lenders that the only Eligible Borrowing Base Properties not subject to Property Level Debt
as of the Amendment No. 5 Effective Date are: (i) the Eligible Borrowing Base Property known as
Gateway Center, with an address of 811 and 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx, owned by FP
Gateway Center, LLC; and (ii) the Eligible Borrowing Base Property known as Xxxxx Xxxx Business
Center, with an address of 7100 Xxxxxxxx Xxxxx Road, Glenn Dale, Maryland, owned by Xxxxx Xxxx
Business Center, LLC.
(c) (i) In connection with the release of any Collateral Property Mortgagor as a Subsidiary
Guarantor and its Mortgage Collateral Property from the Borrowing Base Pool pursuant to
§8.13(a)(ii) or (ii) concurrently with the incurrence of any Mortgage Indebtedness in compliance
with the terms and conditions of this Agreement on any Eligible Borrowing Base Property that is a
Mortgage Collateral Property (without the release of any guarantee by the related Subsidiary
Guarantor or such Eligible Borrowing Base Property from the Borrowing Base Pool), the Agent, at the
Borrower’s sole cost and expense, shall provide the Borrower with executed discharges of the
applicable Security Deed and Assignment of Leases and Rents and other customary documentation as
may be necessary or reasonably requested by the Borrower to release the Agent’s liens and security
interests in such Mortgage Collateral Property.
-49-
§6. RECOURSE OBLIGATIONS; JOINT AND SEVERAL LIABILITY. The Obligations are full
recourse obligations of the Borrower, and all of the respective assets and properties of the
Borrower shall be available for the payment in full in cash and performance of the Obligations.
The obligations of the Trust under the Trust Guaranty are full recourse obligations of the Trust,
and all of the respective assets and properties of the Trust shall be available for the payment in
full in cash and performance thereof. The obligations of the Subsidiary Guarantors under the
Subsidiary Guaranty are full recourse obligations of the Subsidiary Guarantors, and all of the
respective assets and
properties of the Subsidiary Guarantors shall be available for the payment
and performance thereof. The obligations of the Unsecured Revolver Subsidiary Guarantors under the
Additional Subsidiary Guaranty are full recourse obligations of the Unsecured Revolver Subsidiary
Guarantors, and all of the respective assets and properties of the Unsecured Revolver Subsidiary
Guarantors shall be available for the payment and performance thereof. The liability of the
Borrower, each Subsidiary Guarantor and each Unsecured Revolver Subsidiary Guarantor shall be joint
and several for all Obligations.
§7. REPRESENTATIONS AND WARRANTIES. The Borrower and the Trust, on their own behalf
and on behalf of their respective Subsidiaries, jointly and
severally represent and warrant as of the Amendment No. 5 Effective Date to the Agent and the
Lenders all of the statements contained in this §7.
§7.1. Authority, Etc.
(a) Organization: Good Standing.
(i) FPLP is a limited partnership duly organized, validly existing
and in good standing under the laws of its state of organization; FPLP has
all requisite limited partnership power to own its properties and conduct
its business as now conducted and as presently contemplated; and FPLP is
in good standing as a foreign entity and is duly authorized to do business
in the jurisdictions where the Eligible Borrowing Base Properties owned by
it are located and in each other jurisdiction where such qualification is
necessary except where a failure to be so qualified would not have a
Material Adverse Effect. Each Subsidiary Guarantor is a limited
partnership, general partnership, nominee trust or limited liability
company, as the case may be, duly organized, validly existing and in good
standing under the laws of its state of organization; each such Subsidiary
Guarantor has all requisite limited partnership, general partnership,
trust, limited liability company or corporate, as the case may be, power
to own its respective properties and conduct its respective business as
now conducted and as presently contemplated; and each such Subsidiary
Guarantor is in good standing as a foreign entity and is duly authorized
to do business in the jurisdictions where the Eligible Borrowing Base
Properties owned by it are located and in each other jurisdiction where
such qualification is necessary except where a failure to be so qualified
in such other jurisdiction would not have a Material Adverse Effect.
-50-
(ii) the Trust is a corporation duly organized, validly existing and
in good standing under the laws of the State of Maryland; each Subsidiary
of the Trust is duly organized, validly existing and in good standing as a
corporation, nominee trust, limited liability company, limited partnership
or general partnership, as the case may be, under the laws of the state of
its organization; the Trust and each of its Subsidiaries has all requisite
corporate, trust, limited liability company, limited partnership or
general partnership, as the case may be, power to own its respective
properties and conduct its respective business as now conducted and as
presently contemplated; and the Trust is in good standing as a foreign
entity and is duly authorized to do business in the jurisdictions where
such qualification is necessary, except where a
failure to be so qualified in such other jurisdiction would not have
a Material Adverse Effect.
(b) Capitalization. The outstanding equity of FPLP is comprised of a general partner
interest and limited partner interests, all of which have been duly issued and are outstanding and
fully paid and non-assessable and, as of the Amendment No. 5 Effective Date, are owned and held of
record by the Persons set forth on Schedule 7.1(b) attached hereto. All of the issued and
outstanding general partner interests of FPLP are owned and held of record by the Trust. There are
no outstanding securities or agreements exchangeable for or convertible into or carrying any rights
to acquire a general partner interest in FPLP. There are no outstanding commitments, options,
warrants, calls or other agreements (whether written or oral) binding on FPLP or the Trust which
require or could require FPLP or the Trust to sell, grant, transfer, assign, mortgage, pledge or
otherwise dispose of any general partner interest in FPLP. Except as set forth in the Agreement of
Limited Partnership of FPLP, no general partner interests of FPLP are subject to any restrictions
on transfer or any partner agreements, voting agreements, trust deeds, irrevocable proxies; or any
other similar agreements or interests (whether written or oral). For so long as any Subsidiary
Guarantor is a Subsidiary Guarantor hereunder, FPLP owns, directly or indirectly, 100% (by number
of votes or controlling interests) of the outstanding voting interests in each Subsidiary Guarantor
and economic interests in each such Subsidiary Guarantor pursuant to which FPLP would receive,
directly or indirectly, 100% of the net proceeds of a sale or other disposition or liquidation of
the Eligible Borrowing Base Property owned by each such Subsidiary Guarantor. All of the issued
and outstanding Equity Interests of each Subsidiary Guarantor are owned and held of record by the
Persons set forth on Schedule 7.1(b) attached hereto, and all of such Equity Interests of each such
Person organized as a corporation have been duly issued and are outstanding and fully paid and
non-assessable. There are no outstanding securities or agreements exchangeable for or convertible
into or carrying any rights to acquire any Equity Interests in any Subsidiary Guarantor. There are
no outstanding commitments, options, warrants, calls or other agreements (whether written or oral)
binding on any Subsidiary Guarantor which require or could require any Subsidiary Guarantor to
sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any Equity Interest in such
Subsidiary Guarantor (except with respect to one or more contracts for the disposition of an
Eligible Borrowing Base Property in connection with which no Default or Event of Default shall have
occurred both before and immediately after giving effect to such disposition individually and after
giving effect to all such dispositions), and, as of the
-51-
Amendment No. 5 Effective Date, any such
commitments,
options, warrants, calls or other agreements relating to FPLP are set forth on
Schedule 7.1(b). Except as disclosed on Schedule 7.1(b) attached hereto, no Equity Interests of
any Subsidiary Guarantor are subject to any restrictions on transfer or any partner agreements,
voting agreements, trust deeds, irrevocable proxies; or any other similar agreements or interests
(whether written or oral) and any such restrictions or other agreements relating to FPLP as of the
Amendment No. 5 Effective Date are set forth on Schedule 7.1(b). All of the Preferred Equity which
exists as of the Amendment No. 5 Effective Date, and each of the agreements or other documents
entered into and/or setting forth the terms, rights and
restrictions applicable to any such Preferred Equity, are listed and described on Schedule 7.1(b)
attached hereto. All of the agreements and other documents requested by the Agent relating to the
Preferred Equity in effect on the Amendment No. 5 Effective Date have been furnished to the Agent.
(c) Due Authorization. The execution, delivery and performance of this Agreement and
the other Loan Documents to which the Borrower, any Subsidiary Guarantor or the Trust is or is to
become a party and the transactions contemplated hereby and thereby (i) are within the authority of
the Borrower, such Subsidiary Guarantor and the Trust, (ii) have been duly authorized by all
necessary proceedings on the part of the Borrower, such Subsidiary Guarantor or the Trust and any
general partner or manager thereof, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which the Borrower, such
Subsidiary Guarantor or the Trust is subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower, such Subsidiary Guarantor or the Trust, (iv) do not conflict
with any provision of the Organizational Documents of the Borrower, such Subsidiary Guarantor, the
Trust or any general partner or manager thereof, (v) do not contravene any provisions of, or
constitute Default or Event of Default hereunder or under any Property Level Loan Document, and
(vi) will not cause a failure to comply with any term, condition or provision of, any other
agreement, instrument, judgment, order, decree, permit, license or undertaking binding upon or
applicable to the Borrower, such Subsidiary Guarantor or the Trust or any of the Borrower’s, such
Subsidiary Guarantor’s or the Trust’s properties (except for any such failure to comply under any
such other agreement, instrument, judgment, order, decree, permit, license, or undertaking as would
not result in a Material Adverse Effect or in the creation of any mortgage, pledge, security
interest, lien, encumbrance or charge upon any of the properties or assets of the Borrower, such
Subsidiary Guarantor or the Trust.
(d) Enforceability. Each of the Loan Documents to which the Borrower, any Subsidiary
Guarantor or the Trust is a party has been duly executed and delivered and constitutes the legal,
valid and binding obligations of the Borrower, such Subsidiary Guarantor and the Trust, as the case
may be, subject only to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors’ rights.
-52-
§7.2. Governmental Approvals. The execution, delivery and performance by the Borrower
and the Trust of this Agreement and the other Loan Documents to which the Borrower or the Trust is
or is to become a party and the transactions contemplated hereby and thereby do not require (i) the
approval or consent of any governmental agency or authority other than those already obtained and
delivered to the Agent, or (ii) filing with any governmental agency or authority, other than
filings which will be made with the SEC when and as required by law or deemed appropriate by the
Trust.
§7.3. Title to Properties; Leases.
The Borrower, each Subsidiary Guarantor and the Trust each has good fee to all of its
respective properties, assets and rights of every name and nature purported to be owned by it,
including, without limitation, that:
(a) The Borrower and/or each Subsidiary Guarantor holds good and clear record and marketable
fee simple title to the Eligible Borrowing Base Properties and all assets or properties relating
thereto, subject to no Liens other than Permitted Liens.
(b) The Borrower, the Subsidiary Guarantors and the Trust will, as of the Amendment No. 5
Effective Date, own all of the assets as reflected in the financial statements of the Borrower, the
Subsidiary Guarantors and the Trust described in §7.4, or acquired since the date of such financial
statements (except property and assets sold or otherwise disposed of in the ordinary course of
business since that date).
(c) Set forth on Schedule 7.3(c) attached hereto is a list of each of the direct or indirect
interests of the Borrower or any Subsidiary Guarantor in any Partially-Owned Entity as of the
Amendment No. 5 Effective Date. Such list is complete and accurate in all material respects as of
the date furnished and, as of the date of any update thereto furnished by Borrower pursuant to
§8.5(e), will be complete and accurate in all material respects as of such date.
§7.4. Financial Statements. The Borrower has furnished to each of the Lenders the
audited consolidated balance sheet of the Trust and its Subsidiaries as of December 31, 2010, and
the related audited consolidated statements of income, changes in shareholder’s equity and cash
flows for the year then ended (the “Initial Financials”). The Borrower has also furnished or
otherwise made available to each of the Lenders the unaudited consolidated balance sheet of the
Trust and its Subsidiaries as of June 30, 2011, and the related unaudited consolidated statements
of income, changes in shareholder’s equity and cash flows for the three consecutive fiscal quarters
then ended (the “Quarterly Financials”). Such Initial Financials and such Quarterly Financials
have been prepared in accordance with GAAP and the Initial Financials are accompanied by an
auditors’ report prepared without qualification by the Accountants. The Initial Financials and the
Quarterly Financials are complete and correct in all material respects and fairly present, in
accordance with GAAP consistently applied throughout the periods to which they apply, the financial
condition of the Trust and its Subsidiaries as at the close of business on the date thereof and the
results of operations for the fiscal year (or fiscal quarter, as applicable) then ended. There are
no contingent liabilities of the Trust or any of its Subsidiaries as of such date known to the
officers of the Trust or any of its Subsidiaries not disclosed in the Initial Financials or the
Quarterly Financials.
-53-
§7.5 No Material Changes, Etc. Since the Financial Statement Date, there has occurred
no materially adverse change in the business, operations, assets, condition (financial or
otherwise) or properties of the Trust or FPLP or, taken as a whole, the Potomac Group.
§7.6. Franchises, Patents, Copyrights, Etc. The Borrower, the Trust and each of their
respective Subsidiaries possess all franchises, patents, copyrights, trademarks, trade names,
licenses and permits, and rights in respect of the foregoing, adequate for the conduct of their
respective businesses substantially as now conducted without known conflict with any rights of
others, except where the failure to so possess could not reasonably be expected to have a Material
Adverse Effect. The Borrower, the Trust and each of their respective Subsidiaries possess all
material Permits relating to each of the Eligible Borrowing Base Properties. FPLP is pre-approved
as a landlord for the United States government by the General Services Administration as part of
the General Services Administration’s Advanced Acquisition Program (the “AAP Qualification”).
§7.7 Litigation. Except as disclosed on Schedule 7.7, there are no actions,
suits, proceedings or investigations of any kind pending or, to the Borrower’s or the Trust’s
knowledge, threatened against the Borrower, the Trust or any of their respective Subsidiaries
before any court, tribunal or administrative agency or board that could reasonably be expected to,
either individually or in the aggregate, result in a Material Adverse Effect, or materially impair
the right of the Trust or FPLP or, taken as a whole, the Potomac Group, to carry on its businesses
substantially as now conducted by it, or result in any substantial liability not fully covered by
insurance, or for which adequate reserves are not maintained, as reflected in the applicable
consolidated financial statements or SEC Filings of the Borrower and the Trust, or which question
the validity of this Agreement or any of the other Loan Documents, or any action taken or to be
taken pursuant hereto or thereto.
§7.8. No Materially Adverse Contracts, Etc. Neither the Borrower, the Trust nor any
of their respective Subsidiaries is subject to any charter, corporate, partnership or other legal
restriction, or any judgment, decree, order, rule or regulation that has or could reasonably
expected in the future to have a Material Adverse Effect. None of the Borrower, the Trust or any
of their respective Subsidiaries is a party to any contract or agreement that has had, or could
reasonably be expected to have, a Material Adverse Effect.
§7.9. Compliance With Other Instruments, Laws, Etc. Neither the Borrower, the Trust
nor any of their respective Subsidiaries is in violation of any provision of its partnership
agreement, charter or other Organizational Document, as the case may be, or any agreement or
instrument to which it may be subject or by which it or any of its properties may be bound
(including, without limitation, any Property Level Loan Document) or any decree, order, judgment,
statute, license, rule or regulation, in any of the foregoing cases
in a manner that could reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Effect.
-54-
§7.10. Tax Status. Each of the Borrower, the Trust and their respective Subsidiaries
(a) has made or filed all federal and state income and all other material tax returns, reports and
declarations required by any jurisdiction to which it is subject and has set aside on its books
provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods
to which such returns, reports or declarations apply, and (b) has paid all federal and state income
and all other material taxes or other governmental assessments and charges that are due and
payable, except those being contested in accordance with §8.9.
§7.11 No Event of Default. No Default or Event of Default has occurred and is
continuing.
§7.12. Investment Company Acts. None of the Borrower, the Trust or any of their
respective Subsidiaries is an “investment company”, or an “affiliated company” or a “principal
underwriter” of an “investment company”, as such terms are defined in the Investment Company Act of
1940.
§7.13. Name; Jurisdiction of Organization; Absence of UCC Financing Statements, Etc.
The exact legal name of the Borrower, the Subsidiary Guarantors and the Trust, and their respective
jurisdictions of organization as of the Amendment No. 5 Effective Date are set forth on
Schedule 7.13 attached hereto. Except for Permitted Liens, there is no effective financing
statement, security agreement, chattel mortgage, real estate mortgage, equipment lease, financing
lease, option, encumbrance or other document filed or recorded with any filing records, registry,
or other public office, that purports to cover, affect or give notice of any present or possible
future lien or encumbrance on, or security interest in, any Eligible Borrowing Base Property, any
Mortgage Collateral Property, any Pledged Entity or the Equity Interests of any Pledged Entity.
Neither the Borrower, any Subsidiary Guarantor nor the Trust has pledged or granted any lien on or
security interest in or otherwise encumbered or transferred any of their respective interests in
the Borrower or any Subsidiary Guarantor, as applicable (including in the case of the Trust, its
interests in FPLP), except in favor of the Agent and Lenders in connection with this Agreement.
§7.14. Absence of Liens. The Borrower or a Subsidiary Guarantor is the owner of the
Eligible Borrowing Base Properties, free from any Lien, except for Permitted Liens. The Borrower
or a Subsidiary Guarantor is the owner of the Pledged Interests free from any Lien, except for
Permitted Liens.
-55-
§7.15. Certain Transactions. Except as set forth on Schedule 7.15, none of
the officers, partners, directors, or
employees of the Trust, the Borrower or any of their Subsidiaries is presently a party to any
transaction with the Borrower, the Trust or any of their respective Subsidiaries (other than for
services as employees, officers and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any officer, partner,
director or such employee or, to the knowledge of the Borrower or the Trust, any corporation,
partnership, trust or other entity in which any officer, partner, director, or any such employee or
natural Person related to such officer, partner, director or employee or other Person in which such
officer, partner, director or employee has a direct or indirect beneficial interest has a
substantial interest or is an officer, director, trustee or partner.
§7.16. Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans. Except
as disclosed in the SEC Filings or on Schedule 7.16, none of the Borrower, the Trust nor
any ERISA Affiliate (i) maintains or contributes to, or in the prior six years has maintained or
contributed to, any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, (ii) has
any accrued unfunded or underfunded liabilities with respect to any Employee Benefit Plan (other
than with respect to any employee welfare benefit plan within the meaning of §3(l) or §3(2)(B) of
ERISA or any plan that is described in §201(2) or §201(7) of ERISA), Guaranteed Pension Plan or
Multiemployer Plan or are subject to any condition under any Multiemployer Plan that has or with
the passage of time may create a withdrawal liability, or (iii) has failed to operate each Employee
Benefit Plan maintained by the Borrower, the Trust or any of their respective ERISA Affiliates in
compliance in all material respects with the provisions of ERISA and, to the extent applicable, the
Code, including but not limited to the provisions thereunder respecting prohibited transactions.
With respect to any Employee Benefit Plan that is an employee welfare benefit plan within the
meaning of §3(l) or §3(2)(B) of ERISA or any plan that is described in §201(2) or §201(7) of ERISA,
none of the Borrower, the Trust nor any ERISA Affiliate has any accrued liability in excess of
$5,000,000 that was not incurred in the ordinary course or any accrued liability in excess of
$10,000,000.
§7.17. Regulations U and X. No portion of any Loan is to be used for the purpose of
purchasing or carrying any “margin security” or “margin stock” as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221
and 224.
-56-
§7.18. Environmental Compliance. The Borrower has caused Phase I and other
environmental assessments or similar assessments (collectively, the “Environmental Reports”) to be
conducted as the Borrower has determined appropriate in its commercially reasonable judgment to
investigate the past and present environmental condition and usage of the Real Estate Assets, and,
to the extent requested by the Agent, true and complete copies of the same have been delivered to
the Agent. To the Borrower’s knowledge, except as otherwise
expressly specified in the Environmental Reports, the Borrower makes the following representations
and warranties:
(a) None of the Borrower, its Subsidiaries, the Trust or any operator of the Real Estate
Assets or any portion thereof, or any operations thereon is in violation, or alleged violation, of
any judgment, decree, order, law, license, rule or regulation pertaining to environmental matters,
including without limitation, those arising under the Resource Conservation and Recovery Act
(“RCRA”), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended (“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986 (“XXXX”), the Federal
Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or any state or local
statute, regulation, ordinance, order or decree relating to health, safety or the environment
(hereinafter “Environmental Laws”), which violation or alleged violation has, or its remediation
would have, by itself or when aggregated with all such other violations or alleged violations, a
Material Adverse Effect, or constitutes a Disqualifying Environmental Event with respect to any of
the Eligible Borrowing Base Properties.
(b) None of the Borrower, the Trust or any of their respective Subsidiaries has received
written notice from any third party, including, without limitation, any federal, state or local
governmental authority, (i) that it has been identified by the United States Environmental
Protection Agency (“EPA) as a potentially responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R. Part 000 Xxxxxxxx X (1986), (ii) that any
hazardous waste, as defined by 42 U.S.C. § 9601(5), any hazardous substances as defined by 42
U.S.C. § 9601(14), any pollutant or contaminant as defined by 42 U.S.C. §9601(33) or any toxic
substances, oil or hazardous materials or other chemicals or substances regulated by any
Environmental Laws (“Hazardous Substances”) which it has generated, transported or disposed of have
been found at any site at which a federal, state or local agency or other third party has conducted
or has ordered that the Borrower, the Trust or any of their respective Subsidiaries conduct a
remedial investigation, removal or other response action pursuant to any Environmental Law, or
(iii) that it is or shall be a named party to any claim, action, cause of action, complaint, or
legal or administrative proceeding (in each case, contingent or otherwise) arising out of any third
party’s incurrence of costs, expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances, which event described in any such notice would have a Material
Adverse Effect, or constitutes a Disqualifying Environmental Event with respect to any of the
Eligible Borrowing Base Properties.
(c) (i) No portion of the Real Estate Assets has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with applicable Environmental
Laws; and no underground tank or other underground storage receptacle for Hazardous Substances is
located on any portion of any Real Estate Assets except in accordance with applicable Environmental
Laws, (ii) in the course of any activities conducted by the Borrower, the Trust, their respective
Subsidiaries or the operators of their respective properties or any ground or space tenants on any
Real Estate
Asset, no Hazardous Substances have been generated or are being used on such Real Estate Asset
except in accordance with applicable Environmental Laws, (iii) there has been no present or past
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping (a “Release”) or threatened Release of Hazardous Substances on,
upon, into or from the Real Estate Assets in violation of applicable Environmental Laws, (iv) there
have been no Releases in violation of applicable Environmental Laws upon, from or into
-57-
any real
property in the vicinity of any of the Real Estate Assets which, through soil or groundwater
contamination, may have come to be located on such Real Estate Asset, and (v) to the best of
Borrower’s knowledge, any Hazardous Substances that have been generated on any of the Real Estate
Assets during ownership thereof by the Borrower, the Trust, their respective Subsidiaries or the
operations of their respective properties have been transported off-site only in compliance with
all applicable Environmental Laws; to the extent, in each case, any of the events described in
clauses (i) through (v) above would have a Material Adverse Effect, or constitutes a Disqualifying
Environmental Event with respect to any of the Eligible Borrowing Base Properties.
(d) None of the Borrower, the Trust or any of the Real Estate Assets is subject to any
applicable Environmental Law requiring the performance of Hazardous Substances site assessments, or
the removal or remediation of Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an environmental disclosure document or
statement, by virtue of the transactions set forth herein and contemplated hereby, or as a
condition to the effectiveness of any other transactions contemplated hereby.
§7.19. Subsidiaries. Schedule 7.19 sets forth, as of the Amendment No. 5
Effective Date, all of the respective Subsidiaries of FPLP and the Trust, together with the exact
legal name of each of such entities (including the Trust) and, in the case of the Trust, the
Borrower and each Guarantor, the tax identification number of each of such entities.
§7.20. Disclosure. All of the representations and warranties made by or on behalf of
the Borrower, the Trust, and their respective Subsidiaries in this Agreement and the other Loan
Documents or any documents or instruments delivered by or on behalf of the Borrower, the Trust and
their respective Subsidiaries to the Agent or the Lenders pursuant to or in connection with any of
such Loan Documents are true and correct in all material respects as of the date furnished (except
to the extent that such representations and warranties relate expressly to an earlier date, in
which case, the same were true and correct in all material respects as of such earlier date). No
report, financial statement, certificate or other information furnished in writing (which for the
purposes hereof shall include all materials delivered electronically or by email) by or on behalf
of any Borrower to the Agent or any Lender in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in
each case, as modified or supplemented by other information so furnished) contains any material
misstatement of fact or, when taken together with all other information furnished, omits to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not materially misleading; provided that, with respect to projected
financial information, the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time prepared (it being understood
that the projected financial information is not to be viewed as facts or guaranties of future
performance, that actual results may vary materially from the projected financial information and
that the Borrower and the Trust make no representation that the projected financial information
will in fact be realized).
-58-
§7.21. REIT Status. The Trust has not taken any action that would prevent it from
maintaining its qualification as a REIT for its tax years ending December 31, 2005 through December
31, 2010, or from maintaining such qualification at all times during the term of this Agreement.
§7.22. Anti-Terrorism Regulations. None of the Borrower, the Trust or any of their
respective Subsidiaries: (i) is a person whose property or interest in property is blocked or
subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism (66 Fed. Reg. 49079 (2001)) or who engages in any dealings or transactions prohibited by
Section 2 of such executive order, (ii) is a person named on the list of Specially Designated
Nationals or Blocked Persons maintained by OFAC and available at
xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxx.xxxxx, or as otherwise published from time to time, or
is subject to the limitations or prohibitions under any other OFAC regulation or executive order;
(iii) is (A) an agency of the government of a country, (B) an organization controlled by a country,
or (C) a person resident in a country that is subject to a sanctions program identified on the list
maintained by OFAC and available at xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxx.xxxxx, or as
otherwise published from time to time, as such program may be applicable to such country, agency,
organization or person; or (iv) derives any of its material assets or operating income from
investments in or transactions with any such agency, organization or person. None of the proceeds
from any Loan will knowingly be used to finance any operations, investments or activities in, or
make any payments to, any such country, agency, organization, or person.
§8. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE TRUST. The Borrower and the Trust,
on their own behalf and on behalf of their respective Subsidiaries, jointly and severally covenant
and agree that:
§8.1. Punctual Payment. The Borrower will duly and punctually pay or cause to be paid
the principal and interest on the Loans and all interest, fees, charges and other amounts and
Obligations provided for in this Agreement and the other Loan Documents, all in accordance with the
terms of this Agreement, the Notes and the other Loan Documents.
§8.2. Maintenance of Office; Jurisdiction of Organization, Etc. Each of the Borrower,
the Subsidiary Guarantors and the Trust will maintain its chief executive office in Bethesda,
Maryland, or at such other place in the United States of America as each of them shall designate by
written notice to the Agent to be delivered at least thirty (30) days (or such shorter period as
approved by the Agent) prior to any change of chief executive office, where, subject to §21,
notices, presentations and demands to or upon the Borrower, the Subsidiary Guarantors and the Trust
in respect of the Loan Documents may be given or made. Not later than the time required for
delivery to the Agent of the financial statements referred to in subsections (a) and (b) of §8.4,
the Borrower, the Subsidiary Guarantors and the Trust shall provide the Agent with written notice
of any changes in name, tax identification number, address, jurisdiction of organization or form of
organization of the Borrower, any Subsidiary Guarantor or the Trust provided that, nothing
in this §8.2 shall limit the covenants and obligations of the Borrower, the Subsidiary Guarantors
and the Trust set forth in §8.20.
-59-
§8.3. Records and Accounts. Each of the Borrower, the Subsidiary Guarantors and the
Trust will (a) keep, and cause each of its Subsidiaries to keep, true and accurate records and
books of account in which full, true and correct entries will be made in accordance with GAAP and
(b) maintain adequate accounts and reserves as the Borrower and the Trust shall determine in their
good faith business judgment and, in the case of such reserves, in accordance with GAAP, for all
taxes (including income taxes), contingencies, depreciation and amortization of its properties and
the properties of its Subsidiaries.
§8.4. Financial Statements, Certificates and Information. The Borrower and the Trust
will deliver to the Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of
each fiscal year of the Trust, the audited consolidated balance sheet of the Trust and its
Subsidiaries at the end of such year, and the related audited consolidated statements of income,
changes in shareholder’s equity and cash flows for the year then ended, in each case, setting forth
in comparative form the figures as of the end of and for the previous fiscal year and all such
statements to be in reasonable detail, prepared in accordance with GAAP (which may be provided by
inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the
Agent), and, in each case, accompanied by an auditor’s report prepared without qualification by the
Accountants (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis);
together with a certification by the principal financial or accounting officer of the Borrower and
the Trust that the information contained in such financial statements is complete and correct in
all material respects and fairly presents, in accordance with GAAP consistently applied throughout
the period to which it applies, the financial position of the
Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Form 10-K
of the Trust filed with the SEC for such period and delivered to the Agent);
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end
of each of its March 31, June 30 and September 30 fiscal quarters, copies of the unaudited
consolidated balance sheet of the Trust and its Subsidiaries, as at the end of such quarter, and
the related unaudited consolidated statements of income, changes in shareholders’ equity and cash
flows for the portion of the Trust’s fiscal year then elapsed, all in reasonable detail and
prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-Q of the Trust
filed with the SEC for such period and delivered to the Agent), together with a certification by
the principal financial or accounting officer of the Borrower and the Trust that the information
contained in such financial statements is complete and correct in all material respects and fairly
presents, in accordance with GAAP consistently applied throughout the period to which it applies,
the financial position of the Trust and its Subsidiaries on the date thereof (which may be provided
by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the
Agent) (subject to normal year-end adjustments and the absence of footnotes) (and the Borrower also
shall deliver the foregoing for FPLP on a consolidated basis);
-60-
(c) as soon as practicable, but in any event not later than ninety (90) days after the end of
each of its fiscal years, a rent roll and operating statement in respect of each Eligible Borrowing
Base Property, certified by the chief financial or accounting officer of the Borrower as true and
correct;
(d) as soon as practicable, but in any event not later than forty-five (45) days after the end
of each of the fiscal quarters of the Borrower, a rent roll and operating statement in respect of
each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of
the Borrower as true and correct;
(e) simultaneously with the delivery of the financial statements referred to in subsections
(a) and (b) above, a Certificate of Compliance in the form of Exhibit C hereto signed by
the chief financial or accounting officer of the Borrower, and setting forth in reasonable detail
computations evidencing compliance with the covenants contained in §10;
(f) promptly as they become available, a copy of each report submitted to the Borrower, the
Trust or any of their respective subsidiaries by the Accountants in connection with each annual
audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants or in
connection with any interim audit thereof pertaining to any phase of the business of the Borrower,
the Trust or any such Subsidiary;
(g) contemporaneously with (or promptly after) the filing or mailing thereof, copies of all
material of a financial nature sent to the holders of any Indebtedness of the Borrower or any
Subsidiary Guarantor (other than the Loans) for borrowed money,
to the extent that the information or disclosure contained in such material refers to or could
reasonably be expected to have a Material Adverse Effect;
(h) contemporaneously with (or promptly after) the filing or mailing thereof, copies of all
material of a financial nature filed with the SEC or sent to the stockholders of the Trust;
(i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as
practicable, but in any event not later than ninety (90) days after the end of each fiscal year of
the Trust, copies of the Form 10-K statement filed by the Trust with the SEC for such fiscal year,
and as soon as practicable, but in any event not later than fifty (50) days after the end of each
fiscal quarter of the Trust copies of the Form 10-Q statement filed by the Trust with the SEC for
such fiscal quarter, provided that, in either case, if the SEC has granted an extension for
the filing of such statements, the Trust shall deliver such statements to the Agent within ten (10)
days after the filing thereof with the SEC;
-61-
(j) in the case of the Borrower and the Trust, as soon as practicable, but in any event not
later than thirty (30) days after the end of each of their respective fiscal years, a business plan
for the next fiscal year (including pro forma projections for such period);
(k) if requested by the Agent, a certification by the chief financial or accounting officer of
the Borrower of the state and federal taxable income of the Trust and its Subsidiaries as of the
end of any applicable fiscal year; and
(l) from time to time such other financial data and other information about the Borrower, the
Trust, the Subsidiary Guarantor, the Unsecured Revolver Subsidiary Guarantors and their respective
Subsidiaries, the Real Estate Assets (including the Eligible Borrowing Base Properties), the
Pledged Interests and the Partially-Owned Entities as the Agent or any Lender (through the Agent)
may reasonably request. Without limitation of the foregoing, at the request of the Agent, the
Borrower will deliver to the Agent information relating to (i) the determination of the existence
or absence of a Disqualifying Environmental Event or a Disqualifying Structural Event, (ii) title
to any Eligible Borrowing Base Property, (iii) the Property Level Loan Documents and Property Level
Debt, and (iv) insurance coverage.
§8.5. Notices.
(a) Defaults. The Borrower will, promptly after obtaining knowledge of the same,
notify the Agent in writing of the occurrence of (i) any Default or Event of Default and (ii) any
default or event of default under any Property Level Loan Document. If any Person shall give any
notice or take any other action in respect of (x) a claimed Default (whether or not constituting an
Event of Default) under this Agreement or (y) a claimed failure by the Borrower, the Subsidiary
Guarantors, the Trust or any of their respective Subsidiaries, as applicable, to comply with any
term, condition or provision of
or under any note, evidence of Indebtedness, indenture or other obligation in excess of
$20,000,000, individually or in the aggregate, in respect of Indebtedness that is Without Recourse
and in excess of $5,000,000, individually or in the aggregate, in respect of Indebtedness that is
Recourse, to which or with respect to which any of them is a party or obligor, whether as principal
or surety, and such failure to comply would permit the holder of such note or obligation or other
evidence of Indebtedness to accelerate the maturity thereof, the Borrower shall forthwith give
written notice thereof to the Agent and each of the Lenders, describing the notice or action and
the nature of the claimed failure to comply.
-62-
(b) Environmental Events. The Borrower will promptly give notice in writing to the
Agent (i) upon Borrower’s, the Subsidiary Guarantor’s or the Trust’s obtaining knowledge of any
material violation (as determined by the Borrower, the Subsidiary Guarantor or the Trust in the
exercise of its reasonable discretion) of any Environmental Law regarding any Real Estate Asset or
Borrower’s, the Subsidiary Guarantor’s or the Trust’s operations, (ii) upon Borrower’s, the
Subsidiary Guarantor’s or the Trust’s obtaining knowledge of any known Release of any Hazardous
Substance at, from, or into any Real Estate Asset which it reports in writing or is reportable by
it in writing to any governmental authority and which could reasonably be expected to be a
Disqualifying Environmental Event, with respect to any of the Eligible Borrowing Base Properties or
which could reasonably be expected to have a Material Adverse Effect, (iii) upon Borrower’s, the
Subsidiary Guarantor’s or the Trust’s receipt of any notice of material violation of any
Environmental Laws or of any material Release of Hazardous Substances in violation of any
Environmental Laws or any matter that could reasonably be expected to be a Disqualifying
Environmental Event with respect to any of the Eligible Borrowing Base Properties, including a
notice or claim of liability or potential responsibility from any third party (including without
limitation any federal, state or local governmental officials) and including notice of any formal
inquiry, proceeding, demand, investigation or other action with regard to (A) Borrower’s or the
Trust’s or any other Person’s operation of such Eligible Borrowing Base Property, (B) contamination
on, from or into any Eligible Borrowing Base Property, or (C) investigation or remediation of
off-site locations at which Borrower, the Subsidiary Guarantor or the Trust or any of its
predecessors are alleged to have directly or indirectly disposed of Hazardous Substances, or (iv)
upon Borrower’s, the Subsidiary Guarantor’s or the Trust’s obtaining knowledge that any expense or
loss has been incurred by such governmental authority in connection with the assessment,
containment, removal or remediation of any Hazardous Substances with respect to which Borrower, the
Subsidiary Guarantor or the Trust or any Subsidiary or Partially-Owned Entity may be liable or for
which a lien may be imposed on any Real Estate Asset.
(c) Notification of Claims against Eligible Borrowing Base Properties. The Borrower
will, and will cause each Subsidiary to, promptly upon becoming aware thereof, notify the Agent in
writing (with copies to the Agent for each Lender) of any setoff, claims, withholdings or other
defenses to which any of the Eligible Borrowing Base Properties are subject, which (i) could
reasonably be expected to (x) have a Material
Adverse Effect, or (y) have a materially adverse effect on the value of any such Eligible Borrowing
Base Property, or (ii) with respect to such Eligible Borrowing Base Property, constitute a
Disqualifying Environmental Event, a Disqualifying Structural Event or a Lien subject to the
bonding or insurance requirement of §9.2(vii).
(d) Notice of Litigation and Judgments. The Borrower and the Trust will give notice
to the Agent in writing (with copies to the Agent for each Lender) within three (3) days of
becoming aware of any litigation or proceedings threatened in writing or any pending litigation and
proceedings an adverse determination in which could result in a Material Adverse Effect, or which
could have a materially adverse effect on any of the Pledged Interests or any Eligible Borrowing
Base Property or to which the Borrower, a Subsidiary Guarantor, the Trust or any of their
respective Subsidiaries is or is to become a party involving a claim against the Borrower, a
Subsidiary Guarantor, the Trust or any of their respective Subsidiaries that could reasonably be
expected to have a Material Adverse Effect or to have a materially adverse effect on the value or
operation of an Eligible Borrowing Base Property and stating the nature and status of such
litigation or proceedings. The Borrower and the Trust will give notice to the Agent and each of
the Lenders, in writing, in form and detail reasonably satisfactory to the Agent, within three (3)
days of any judgment not covered by insurance, final or otherwise, against the Borrower, a
Subsidiary Guarantor, the Trust or any of such Subsidiaries in an amount in excess of $5,000,000.
-63-
(e) Schedule 7.3(c). Not later than the time required for delivery to the Agent of
the financial statements referred to in subsections (a) and (b) of §8.4, the Borrower and the Trust
shall provide the Agent in writing with any updates or changes to the information set forth on
Schedule 7.3(c) attached hereto, and such Schedule 7.3(c) shall be deemed amended thereby.
§8.6. Existence of Borrower; Maintenance of Properties. The Borrower, the Subsidiary
Guarantors and the Trust will do or cause to be done all things necessary to, and shall, preserve
and keep in full force and effect its respective existence in its jurisdiction of organization and
will do or cause to be done all things necessary to preserve and keep in full force all of its
respective rights and franchises and, except as could not reasonably be expected to have a Material
Adverse Effect, those of its respective Subsidiaries which may be necessary to properly and
advantageously conduct the businesses conducted by it. The Borrower and each of the Subsidiary
Guarantors (a) will cause all necessary repairs, renewals, replacements, betterments and
improvements to be made to all Real Estate Assets owned or controlled by it, all as in the judgment
of the Borrower or such Subsidiary Guarantor may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times, subject to the
terms of the applicable Leases and partnership agreements or other entity charter documents, and in
any event, will keep all of the Real Estate Assets (for so long as such Real Estate Assets are
owned by the Borrower, a Subsidiary Guarantor or any of their respective Subsidiaries) in a
condition consistent with the Real Estate Assets
currently owned or controlled by the Borrower or its Subsidiaries, (b) will cause all of its other
properties and those of their respective Subsidiaries (to the extent controlled by the Borrower or
the Subsidiary Guarantor) used or useful in the conduct of its business or the business of its
Subsidiaries to be maintained and kept in good condition, repair and working order, ordinary wear
and tear and casualty and condemnation events excepted, (c) will not permit the Trust to directly
own or lease any Real Estate Asset, and (d) will, and will cause each of their respective
Subsidiaries to continue to engage primarily in the businesses now conducted by them and in related
businesses, all of the foregoing to the extent necessary to comply with the other terms and
conditions set forth in this Agreement, and in the case of clauses (a) and (b) above to the extent,
in the good faith judgment of the Borrower, necessary to properly and advantageously conduct the
businesses being conducted by it. Without limitation of the foregoing, the business in which the
Borrower and its Subsidiaries are engaged will be limited to the acquisition, development,
ownership and operation of income-producing office, industrial and flex properties in the
Mid-Atlantic United States and any business activities reasonably related thereto and Investments
permitted under §9.3 incidental thereto.
-64-
§8.7. Existence of the Trust; Maintenance of REIT Status of the Trust; Maintenance of
Properties. The Trust will do or cause to be done all things necessary to preserve and keep in
full force and effect the Trust’s existence as a Maryland corporation. The Trust will at all times
(i) maintain its status as a REIT and not take any action which could lead to its disqualification
as a REIT and (ii) continue to operate as a self-directed and self-administered REIT and be listed
on a nationally-recognized stock exchange. The Trust will not engage in any business other than the
business of acting as a REIT and serving as the general partner and limited partner of the Borrower
and matters directly relating thereto, and shall (x) conduct all or substantially all of its
business operations through the Borrower or through subsidiary partnerships or other entities owned
by the Borrower, (y) own no real property or material personal property other than through its
ownership interests in the Borrower and (z) continue to hold in excess of 80% of the partnership
interests of FPLP and to be the sole general partner thereof (including entitlement to not less
than 80% of the voting and control of FPLP), and such partnership interests shall be free of any
and all options, warrants, calls or similar agreements and all restrictions on transfer (whether
written or oral) other than as set forth in Articles VII and IX of the Agreement of Limited
Partnership of FPLP. The Trust will (a) cause all of its properties and those of its Subsidiaries
used or useful in the conduct of its business or the business of its Subsidiaries to be maintained
and kept in good condition, repair and working order, ordinary wear and tear and casualty and
condemnation events excepted, (b) cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Trust may be necessary so that
the business carried on in connection therewith may be properly and advantageously conducted at all
times and (c) cause each of its Subsidiaries to continue to engage primarily in the businesses now
conducted by it and in related businesses, in each case under clauses (a), (b) and (c) above to the
extent, in
the good faith judgment of the Trust, necessary to properly and advantageously conduct the
businesses being conducted by it.
§8.8. Insurance. The Borrower, the Subsidiary Guarantors and the Trust will maintain
with respect to their other properties, and will cause each of their respective Subsidiaries to
maintain, with financially sound and reputable insurers, insurance with respect to such properties
and its business against such casualties and contingencies as shall be in accordance with the
general practices of businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be reasonable and
prudent.
§8.9. Taxes. The Borrower and the Subsidiary Guarantors will, and will cause the
Trust and each of their respective Subsidiaries to, pay or cause to be paid real estate taxes,
other taxes, assessments and other governmental charges against the Real Estate Assets before the
same become delinquent and will duly pay and discharge, or cause to be paid and discharged, before
the same shall become overdue, all taxes, assessments and other governmental charges imposed upon
its sales and activities, or any part thereof, or upon the income or profits therefrom, as well as
all claims for labor, materials, or supplies that if unpaid might by law become a lien or charge
upon any of the Real Estate Assets; provided that (i) any such tax, assessment, other
governmental charge or claim need not be paid if
-65-
the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings that operate to suspend the collection and
enforcement thereof, and (ii) the Borrower, the Subsidiary Guarantor or the Trust shall have set
aside on its books adequate reserves with respect thereto; and provided further that the
Borrower, the Subsidiary Guarantors or the Trust will pay all such taxes, assessments, other
governmental charges or claims forthwith prior to the consummation of proceedings to foreclose any
lien that may have attached as security therefor. Promptly upon request by the Agent if required
for bank regulatory compliance purposes or similar bank purposes, the Borrower will provide
evidence of the payment of real estate taxes, other taxes, assessments and other governmental
charges against the Real Estate Assets in the form of receipted tax bills or other form reasonably
acceptable to the Agent, or evidence of the existence of applicable contests as contemplated
herein.
§8.10. Inspection of Properties and Books; Treatment of Certain Information;
Confidentiality. (a) Subject to the rights of tenants to limit or prohibit such access, as
denoted in the applicable Leases, the Borrower, the Subsidiary Guarantors and the Trust will permit
the Agent or any of its designated representatives upon reasonable notice (which notice may be
given orally or in writing and provided that no notice shall be required if a Default or
Event of Default has occurred and is continuing), to visit and inspect any of the properties of the
Borrower, such Subsidiary Guarantor, the Trust or any of their respective Subsidiaries to examine
the books of account of the Borrower, such Subsidiary Guarantor, the Trust and their respective
Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss the affairs,
finances and accounts of the Borrower, such Subsidiary Guarantor, the Trust and their respective
Subsidiaries with, and to be advised as to the same by, its officers, all at such reasonable times
and intervals as the Agent may reasonably request.
(b) [Reserved]
(c) The Borrower hereby acknowledges that (a) the Agent and/or the Arranger will make
available to the Lenders materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak or
another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public
Lender”) may have personnel who do not wish to receive material non-public information with respect
to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who
may be engaged in investment and other market-related activities with respect to such Persons’
securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made
available to Public Lenders shall, upon the request of the Agent, be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on
the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Agent, the Arranger, and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws; (y) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated “Public
Side Information;” and (z) the Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not designated “Public Side Information.” Notwithstanding the foregoing, Borrower shall
be under no obligation to xxxx any such materials “PUBLIC”, and each Public Lender shall designate
to the Agent one or more persons who are entitled to receive and view any such materials containing
material non public information to the same extent as Lenders that are not Public Lenders.
-66-
(d) Each of the Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees,
advisors and representatives (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory authority purporting to
have jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or participant in, or
any prospective assignee of or participant in, any of its rights or obligations under this
Agreement or any third party that may be invited to become a party to, and a “Lender” under, this
Agreement in connection with an Increase pursuant to §2.8 of this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower. For purposes of this Section,
“Information” means all information received from the Borrower or any Subsidiary relating to the
Borrower or any Subsidiary or any of their respective businesses, other than any such information
that is available to the Agent or any Lender on a nonconfidential basis prior to disclosure by the
Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
Each of the Agent and the Lenders acknowledges that (a) the Information may include material
non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has
developed compliance procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable Law, including
United States Federal and state securities Laws.
-67-
§8.11. Compliance with Laws, Contracts, Licenses, and Permits. The Borrower, the
Subsidiary Guarantors and the Trust will comply with, and will cause each of their respective
Subsidiaries to comply with (a) all applicable laws and regulations now or hereafter in effect
wherever its business is conducted that are material in any respect to the operation of their
respective businesses in the ordinary course and consistent with past practices, including, without
limitation, all such Environmental Laws and all such applicable federal and state securities laws,
except where the failure to so comply could not reasonably be expected to have a Material Adverse
Effect, (b) the provisions of its partnership agreement or corporate charter and other
Organizational Documents, as applicable, (c) all material agreements and instruments to which it is
a party or by which it or any of its properties may be bound (including the Real Estate Assets, the
Leases and the Property Level Loan Documents, as applicable), except where the failure to so comply
could not reasonably be expected to have a Material Adverse Effect, and (d) all applicable decrees,
orders, and judgments, except where the failure to so comply could not reasonably be expected to
have a Material Adverse Effect. If at any time while the Term Loan or any Note or other Obligation
is outstanding, any Permit shall become necessary or required in order that the Borrower or any
Subsidiary Guarantor may fulfill any of its obligations hereunder, the Borrower, the Subsidiary
Guarantors and the Trust and their respective Subsidiaries will immediately take or cause to be
taken all reasonable steps
within the power of the Borrower, such Subsidiary Guarantor or the Trust, as applicable, to obtain
such Permit and furnish the Agent with evidence thereof.
§8.12. Use of Proceeds. Subject at all times to the other provisions of this
Agreement, including without limitation §7.17, the Borrower will use the proceeds of the Loans
solely to finance acquisitions and rehabilitation of Permitted Properties, to repay amounts
outstanding under the Unsecured Revolver and for its working capital and general corporate
purposes.
§8.13. Additional Borrower; Solvency of Borrower; Removal of Borrower; Addition of Real
Estate Asset to Unencumbered Pool.
(a) (i) If, after the Amendment No. 5 Effective Date, the Borrower wishes to designate as an
Eligible Borrowing Base Property a Real Estate Asset that otherwise qualifies as an Eligible
Borrowing Base Property but is owned by a Person other than the Borrower or a Subsidiary Guarantor,
the Borrower shall give the Agent at least ten (10) Business Days’ prior written notice thereof.
Such written notice shall specify whether such potential Eligible Borrowing Base Property is
intended to be a Mortgage Collateral Property, a Pledged Equity Property or a Pledged Distributions
Property, provided that such potential Eligible Borrowing Base Property shall only be
permitted to be a Pledged Distributions Property to the extent that the applicable Property Level
Loan Documents prohibit such property from being a Pledged Equity Property, and provided
further that, if such potential Eligible Borrowing Base Property is not subject to Property
Level Loan Documents, the Agent may decide, in its reasonable discretion, that such potential
Eligible Borrowing Base Property may not be added to the Borrowing Base Pool unless it will be
added as a Mortgage Collateral Property. Prior to the addition of any Real Estate Asset to the
Borrowing Base Pool, the Borrower and/or the potential
-68-
Subsidiary Guarantor shall deliver to the
Agent each of the following, all of which must be satisfactory to and approved by the Agent: (A)
the applicable Joinder Documents, which shall include, without limitation, a joinder to the
Subsidiary Guaranty pursuant to which such Wholly-Owned Subsidiary which owns the potential
Eligible Borrowing Base Property guarantees the Obligations, the Mortgage Documents, if applicable,
or a supplement to the Equity Pledge Agreement or the Distributions Pledge Agreement, as
applicable, pursuant to which the Equity Interests of such Subsidiary or the rights to
Distributions attributable thereto shall be pledged to the Agent and a supplement to the Account
Agreement, if applicable; (ii) the organizational structure and Organizational Documents for the
direct and indirect owners of such potential Eligible Borrowing Base Property; (iii) the operating
statements and rent roll with respect to such potential Eligible Borrowing Base Property; (iv) a
Certificate of Compliance in the form of Exhibit C evidencing compliance with the covenants
set forth in §10, and containing a certification that no Default or Event of Default exists and
that such potential Borrowing Base Asset is not the subject of a Disqualifying Environmental Event
or a Disqualifying Structural Event, in each case after giving effect to the inclusion of the
additional Eligible Borrowing
Base Property; and (v) such other documents, instruments, agreements, amendments or supplements to
existing Security Documents, opinions or other information as the Agent deems necessary or
advisable with respect to such potential Eligible Borrowing Base Property, the potential Subsidiary
Guarantor or the potential Pledged Interests.
(ii) At any time and from time to time but only for so long as no Default or Event of Default
shall then exist, the Borrower may notify Agent, in writing (each, a “Release Notice”), that the
Borrower would like one (1) or more Eligible Borrowing Base Properties to be removed from the
Borrowing Base Pool. Such Release Notice shall be accompanied by a Certificate of Compliance in
the form of Exhibit C, evidencing compliance with §10 and certifying as to no Default or
Event of Default after giving effect to the requested release. Upon the Agent’s receipt of such
Release Notice, such Eligible Borrowing Base Properties (each, a “Released Property”) shall be
removed from the Borrowing Base Pool and any Subsidiary Guarantor which is the owner of a Released
Property (and is not the owner of any other Eligible Borrowing Base Property) shall be released
from its obligations under the Subsidiary Guaranty. In connection with such release, the Agent, at
the Borrower’s sole cost and expense, shall provide the Borrower with such releases and other
customary documentation as may be necessary or reasonably requested by the Borrower to release the
Agent’s liens and security interests in any collateral associated with such Released Property and
Subsidiary Guarantor.
(iii) FPLP will not permit any Subsidiary Guarantor that owns an Eligible Borrowing Base
Property to have any Subsidiaries unless such Subsidiary’s business, obligations and undertakings
are exclusively related to the business of such Subsidiary Guarantor.
| (b) | The Borrower and the Trust shall, on a consolidated basis, remain solvent at all times. |
-69-
(c) In the event the Borrower wishes to add a Real Estate Asset to the Borrowing Base Pool
which does not meet one or more of the Borrowing Base Property Conditions or the provisions of
§8.13(c), such Real Estate Asset may be included in the Borrowing Base Pool with the approval of
the Agent and the Majority Lenders.
§8.14. Further Assurances. The Borrower and the Trust will, and will cause each
Subsidiary Guarantor and each Unsecured Revolver Subsidiary Guarantor to, cooperate with the Agent
and the Lenders and execute such further instruments and documents as the Lenders or the Agent
shall reasonably request to carry out to their satisfaction the transactions contemplated by this
Agreement and the other Loan Documents.
§8.15. Interest Rate Protection. In the event that the Borrower’s floating rate
Indebtedness that is not otherwise subject to interest rate protection arrangements at any time
exceeds twenty-five percent (25%) of Consolidated Gross Asset Value, the Borrower shall obtain and
maintain in effect interest
rate protection arrangements (by means of hedging techniques or vehicles such as interest rate
swaps, interest rate caps, interest rate corridors or interest rate collars (or other mechanism
approved by the Agent), in each case to be capped at a rate reasonably satisfactory to the Agent
and otherwise in form and substance reasonably satisfactory to the Agent) (an “Interest Rate
Protection Arrangement”) for a term and in an amount reasonably satisfactory to the Agent. Once
obtained, the Borrower shall maintain such arrangements in full force and effect as provided
therein, and shall not, without the approval of the Agent, modify, terminate, or transfer such
arrangements during the period in which the Borrower’s floating rate Indebtedness exceeds
twenty-five percent (25%) of Consolidated Gross Asset Value.
§8.16. Environmental Indemnification. The Borrower and the Trust each covenants and
agrees that it will indemnify and hold the Agent and each Lender, and each of their respective
Affiliates, harmless from and against any and all claims, expense, damage, loss or liability
incurred by the Agent or any Lender (including all reasonable costs of legal representation
incurred by the Agent or any Lender, but excluding, as applicable, for the Agent or a Lender any
claim, expense, damage, loss or liability as a result of the gross negligence or willful misconduct
of the Agent or such Lender or any of their respective Affiliates) relating to (a) any Release or
threatened Release of Hazardous Substances on any Real Estate Asset; (b) any violation of any
Environmental Laws with respect to conditions at any Real Estate Asset or the operations conducted
thereon; (c) the investigation or remediation of off-site locations at which the Borrower, a
Subsidiary Guarantor, an Unsecured Revolver Subsidiary Guarantor, the Trust or any of their
respective Subsidiaries or their predecessors are alleged to have directly or indirectly disposed
of Hazardous Substances; or (d) any action, suit, proceeding or investigation brought or threatened
with respect to any Hazardous Substances relating to Real Estate Assets (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to property). It is expressly
acknowledged by the Borrower, the Subsidiary Guarantors and the Unsecured Revolver Subsidiary
Guarantors that, notwithstanding the introductory paragraph of this §8, this covenant of
indemnification shall survive the repayment of the amounts owing under the Notes and this Agreement
and the termination of this Agreement and the obligations of the Lenders hereunder and shall inure
to the benefit of the Agent and the Lenders and their respective Affiliates, their respective
successors, and their respective assigns under the Loan Documents permitted under this Agreement.
-70-
§8.17. Response Actions. The Borrower covenants and agrees that if any Release or
disposal of Hazardous Substances shall occur or shall have occurred on any Real Estate Asset owned
directly or indirectly by the Borrower, any of the Subsidiary Guarantors, any of the Unsecured
Revolver Subsidiary Guarantors or the Trust, in violation of applicable Environmental Laws, the
Borrower will cause the prompt containment and removal of such Hazardous Substances and remediation
of such wholly-owned Real Estate Asset as necessary to comply with all
Environmental Laws or to preserve the value of any applicable Eligible Borrowing Base Property.
§8.18. Environmental Assessments. If the Agent reasonably believes, after discussion
with the Borrower and review of any environmental reports provided by the Borrower, that a
Disqualifying Environmental Event has occurred with respect to any one or more of the Eligible
Borrowing Base Properties, whether or not a Default or an Event of Default shall have occurred, the
Agent may, from time to time, for the purpose of assessing and determining whether a Disqualifying
Environmental Event has in fact occurred, cause the Borrower to obtain one or more environmental
assessments or audits of such Eligible Borrowing Base Property prepared by a hydrogeologist, an
independent engineer or other qualified consultant or expert approved by the Agent to evaluate or
confirm (i) whether any Hazardous Substances are present in the soil or water at such Eligible
Borrowing Base Property and (ii) whether the use and operation of such Eligible Borrowing Base
Property complies with all Environmental Laws. Environmental assessments may include without
limitation detailed visual inspections of such Eligible Borrowing Base Property including, without
limitation, any and all storage areas, storage tanks, drains, dry xxxxx and leaching areas, and, if
and to the extent reasonable, appropriate and required pursuant to applicable Environmental Laws,
the taking of soil samples, surface water samples and ground water samples, as well as such other
investigations or analyses as the Agent deems appropriate. All such environmental assessments
shall be at the sole cost and expense of the Borrower.
§8.19. Employee Benefit Plans.
(a) Notice. The Borrower and the Trust will notify the Agent (with copies to the
Agent for each Lender) at least thirty (30) days prior to the establishment of any Employee Benefit
Plan, or becoming obligated to contribute to or to increase its contribution to any Multiemployer
Plan or the establishment of any Guaranteed Pension Plan or the amendment of any such Guaranteed
Pension Plan in a manner so as to materially increase the benefits or funding obligations under
such Guaranteed Pension Plan by any of them or any of their respective ERISA Affiliates other than
those Employee Benefit Plans, Multiemployer Plans or Guaranteed Pension Plans disclosed on
Schedule 8.19 attached hereto or disclosed in the SEC Filings, and neither the Borrower nor
the Trust will establish any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan
which could reasonably be expected to have a Material Adverse Effect.
-71-
(b) In General. Each Employee Benefit Plan maintained by the Borrower, the Trust or
any of their respective ERISA Affiliates will be operated in compliance with the provisions of
ERISA and, to the extent applicable, the Code, including but not limited to the provisions
thereunder respecting prohibited transactions.
(c) Terminability of Welfare Plans. With respect to each Employee Benefit Plan
maintained by the Borrower, the Trust or any of their respective ERISA Affiliates which is an
employee welfare benefit plan within the meaning of §3(l) or
§3(2)(B) of ERISA, the Borrower, the Trust, or any of their respective ERISA Affiliates, as the
case may be, shall have the right to terminate each such plan at any time (or at any time
subsequent to the expiration of any applicable bargaining agreement) without liability other than
liability to pay claims incurred prior to the date of termination.
(d) Unfunded or Underfunded Liabilities. None of the Borrower, the Trust nor any
ERISA Affiliate will at any time have accruing or accrued unfunded or underfunded liabilities with
respect to any Employee Benefit Plan (other than with respect to any employee welfare benefit plan
within the meaning of §3(l) or §3(2)(B) of ERISA or any plan that is described in §201(2) or
§201(7) of ERISA), Guaranteed Pension Plan or Multiemployer Plan, or permit any condition to exist
under any Multiemployer Plan that would create a withdrawal liability. With respect to any
Employee Benefit Plan that is an employee welfare benefit plan within the meaning of §3(l) or
§3(2)(B) of ERISA or any plan that is described in §201(2) or §201(7) of ERISA, none of the
Borrower, the Trust nor any ERISA Affiliate has any accrued liability in excess of $5,000,000 that
was not incurred in the ordinary course or any accrued liability in excess of $10,000,000.
§8.20. No Amendments to Certain Documents. The Borrower and the Trust will not at any
time cause or permit its certificate of limited partnership, agreement of limited partnership
(including without limitation the Agreement of Limited Partnership of the Borrower), articles of
incorporation, by-laws, operating agreement or other Organizational Documents, as the case may be,
to be modified, amended or supplemented in any respect whatever, without (in each case) the express
prior written consent or approval of the Agent, if such changes could reasonably be expected to
affect the Trust’s REIT status or otherwise adversely affect the rights of the Agent and the
Lenders hereunder or under any other Loan Document.
-72-
§8.21. Additional Guaranties
(a) The Borrower and/or the Trust shall cause each Subsidiary (other than any Subsidiary
Guarantor) that is (i) at any time and from time to time required to enter into a guaranty of the
obligations under the Unsecured Revolver Agreement or a joinder agreement in respect of an existing
guaranty of such obligations pursuant to the terms of §8.21(a) of the Unsecured Revolver Agreement,
or (ii) an Unsecured Revolver Borrower that, at any time and from time to time, becomes, directly
or indirectly, an obligor, borrower or guarantor in respect of any Indebtedness that is not secured
by a Lien evidenced by a mortgage, deed of trust, assignment of partnership interests or other
security interest or otherwise (other than Indebtedness pursuant to the Unsecured Revolver
Agreement or 2011 Term Loan Agreement), to enter into an Additional Subsidiary Guaranty Joinder
Agreement in respect of the Additional Subsidiary Guaranty in the form attached hereto as Exhibit
F, at the same time that such Subsidiary becomes a guarantor under the Unsecured Revolver Guaranty
or on or before the date such Unsecured Revolver Borrower becomes an obligor, borrower or guarantor
in respect of such Indebtedness, as the case may be, and concurrently therewith (or at such later
date as
the Agent may approve, in its sole discretion), the Borrower and/or the Trust shall cause the
applicable Subsidiary to deliver (x) an executed original counterpart of Additional Subsidiary
Guaranty Joinder Agreement, (y) the items identified in §§12.2, 12.3, 12.4, 12.5 (with respect to
§12.5, if requested by the Agent, in its sole discretion, and, unless otherwise requested by the
Agent, such opinion may be an opinion of in-house counsel) and 12.7 (with respect to §12.7, except
that government certifications may be in short form, unless otherwise requested by the Agent) of
this Agreement with respect to such Subsidiary, and (z) any other items, documents, certificates,
instruments or agreements reasonably requested by the Agent, in each case in form and substance
satisfactory to the Agent.
(b) At any time and from time to time, but only for so long as no Default or Event of Default
shall then exist, the Borrower may provide the Agent with a written notice (each, an “Unsecured
Revolver Subsidiary Guarantor Release Notice”), that the Borrower would like an Unsecured Revolver
Subsidiary Guarantor to be released from the Additional Subsidiary Guaranty to which it is a party,
and such Unsecured Revolver Subsidiary Guarantor shall be released from such Additional Subsidiary
Guaranty provided that (i) prior to or simultaneously with such release, such Unsecured Revolver
Subsidiary Guarantor has been released as an obligor, borrower and guarantor in respect of any and
all Indebtedness that is not secured by a Lien evidenced by a mortgage, deed of trust, assignment
of partnership interests or other security interest or otherwise (other than Indebtedness pursuant
to the Unsecured Revolver Agreement or 2011 Term Loan Agreement), and (ii) the Unsecured Revolver
Subsidiary Guarantor Release Notice is accompanied by a certificate as of a recent date, in form
and substance reasonably satisfactory to the Agent, executed by a duly authorized officer of the
Trust, in its capacity as general partner of FPLP, certifying as to (A) the satisfaction of the
conditions in the immediately preceding clause (i) and including such other information in
reasonable detail as the Agent may reasonably require to evidence such satisfaction and (B) no
Default or Event of Default either before or after giving effect to the requested release.
-73-
§9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE TRUST. The Borrower and the
Trust, on their own behalf and on behalf of their respective Subsidiaries, jointly and severally
covenant and agree that neither the Borrower, the Subsidiary Guarantors nor the Trust will:
§9.1. Restrictions on Indebtedness. Create, incur, assume, guarantee or be or remain
liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness arising under any of the Loan Documents, the Unsecured Revolver Agreement and
the 2011 Term Loan Agreement;
(b) current liabilities of the Borrower and its Subsidiaries incurred in the ordinary course
of business other than through (i) the borrowing of money, or (ii) the
obtaining of credit except for credit on an open account basis customarily extended and in fact
extended in connection with normal purchases of goods and services;
(c) [Intentionally omitted];
(d) [Intentionally omitted];
(e) endorsements for collection, deposit or negotiation incurred in the ordinary course of
business;
(f) Secured Indebtedness of the Borrower and its Subsidiaries, provided that: (i) such
Indebtedness is Without Recourse to the Borrower or the Trust and is Without Recourse to any of the
respective assets of any of the Borrower or the Trust other than to the specific Real Estate Asset
or Assets acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, except
that, notwithstanding the foregoing, a portion of such Indebtedness at any time outstanding not in
excess of fifteen percent (15%) of Consolidated Gross Asset Value may be Recourse Indebtedness of
the Borrower and its Subsidiaries so long as such Indebtedness is not secured by any Eligible
Unencumbered Property or a pledge of the equity of any Subsidiary that owns an Eligible
Unencumbered Property (it being acknowledged, for the avoidance of doubt, that the outstanding
Indebtedness under the Term Loan shall count against the fifteen percent (15%) basket referred to
in this clause (i)), (ii) at the time any such Indebtedness is incurred and after giving effect
thereto, there exists no Default or Event of Default hereunder and (iii) such Indebtedness, in the
aggregate, does not exceed forty percent (40%) of Consolidated Gross Asset Value;
(g) contingent liabilities of the Borrower and its Subsidiaries disclosed in the financial
statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent
liabilities of the Borrower having a combined aggregate potential liability of not more than
$1,000,000 at any time;
(h) Indebtedness of the Borrower and its Subsidiaries for the purchase price of capital assets
(other than Real Estate Assets but including Indebtedness in respect of Capitalized Leases)
incurred in the ordinary course of business, provided that the aggregate principal amount
of Indebtedness permitted by this clause (h) shall not exceed $500,000 at any time outstanding;
-74-
(i) unsecured Indebtedness of the Borrower and its Subsidiaries (including subsidiary
guarantees by any Subsidiary of FPLP) and unsecured guarantees by the Trust with respect to such
unsecured Indebtedness, provided that (i) such Indebtedness shall at all times remain
unsecured in all respects (including, for the avoidance of doubt, that the Equity Interests of the
Borrower or any Subsidiary Guarantor shall not be pledged as security for any such Indebtedness),
(ii) both before and immediately after giving effect to the incurrence of any such unsecured
Indebtedness, no Default or Event of Default has occurred or is continuing, (iii) prior to
incurring any such unsecured Indebtedness, the
Borrower shall be in compliance with each of the financial covenants set forth in §10 hereof
on a pro forma basis immediately after giving effect to such unsecured
Indebtedness, and (iv) such unsecured Indebtedness shall not be in the nature of a revolving credit
facility;
(j) with respect to the Subsidiary Guarantors, the Property Level Debt, subject at all times
to compliance with the covenants set forth in §10; and
(k) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party.
It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness
of any Partially-Owned Entity which is Without Recourse to the Borrower, any Subsidiary Guarantor
or the Trust, or any of their respective assets.
The terms and provisions of this §9.1 are in addition to, and not in limitation of, the
covenants set forth in §10.
§9.2. Restrictions on Liens, Etc. (a) Create or incur or suffer to be created or
incurred or to exist any lien, mortgage, pledge, attachment, security interest or other rights of
third parties of any kind upon any of the Eligible Borrowing Base Properties, the Equity Interests
of the Borrower or any Subsidiary Guarantor or any other Collateral, whether now owned or hereafter
acquired, or upon the income or profits therefrom or the Distributions attributable thereto, as
applicable; (b) acquire, or agree or have an option to acquire, any property or assets upon
conditional sale or other title retention or purchase money security agreement, device or
arrangement in connection with the operation of the Eligible Borrowing Base Properties; (c) suffer
to exist with respect to the Eligible Borrowing Base Properties, any taxes, assessments and other
governmental charges and claims for labor, materials and supplies that are more than 30 days past
due, for which payment thereof is not being contested or for which payment notwithstanding a
contest is required to be made in accordance with the provisions of §8.9 and has not been timely
made; or (d) sell, assign, pledge or otherwise transfer for security any accounts, contract rights,
general intangibles, chattel paper or instruments, with or without recourse, relating to the
Eligible Borrowing Base Properties, the Equity Interests of the Borrower or any Subsidiary
Guarantor or any other Collateral (the foregoing types of liens and encumbrances described in
clauses (a) through (d) being sometimes referred to herein collectively as “Liens”),
provided that the
Borrower and the Subsidiary Guarantors may create or incur or suffer to be created or incurred or
to exist:
(i) Liens securing taxes, assessments or other governmental charges or levies or claims for
labor, materials and supplies which are not yet due and payable or which are not yet required to be
paid under §8.9;
-75-
(ii) Liens arising out of deposits or pledges made in connection with, or to secure payment
of, worker’s compensation, unemployment insurance, old age pensions or other social security
obligations; and deposits with utility companies and other similar deposits made in the ordinary
course of business;
(iii) Liens (other than affecting the Eligible Borrowing Base Properties) in respect of
judgments or awards not constituting an Event of Default under §14.1(i);
(iv) Encumbrances on properties consisting of easements, rights of way, covenants, zoning and
other land-use restrictions, building restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto; landlord’s or lessor’s Liens under Leases to which
the Borrower is a party or bound; purchase options granted at a price not less than the market
value of such property; and other minor Liens or encumbrances on properties, none of which
interferes materially and adversely with the use of the property affected in the ordinary conduct
of the business of the Borrower, and which matters (x) do not individually or in the aggregate have
a Material Adverse Effect and (y) do not make title to such property unmarketable by the
conveyancing standards in effect where such property is located;
(v) (A) any Leases entered into in the ordinary course of business, and (B) bankers’ Liens,
rights of setoff and other similar Liens existing solely with respect to Cash and Cash Equivalents
on deposit in one or more of accounts maintained by the Borrower, in each case in the ordinary
course of business in favor of the bank or banks with which such accounts are maintained, securing
solely the customary amounts owing to such bank with respect to cash management and operating
account arrangements; provided, that in no case shall any such Liens secure (either
directly or indirectly) the repayment of any Indebtedness;
(vi) as to Real Estate Assets which are acquired after the date of this Agreement, Liens and
other encumbrances or rights of others which exist on the date of acquisition and which do not
otherwise constitute a breach of this Agreement; provided that nothing in this clause (vi)
shall be deemed or construed to permit an Eligible Borrowing Base Property to be subject to a Lien
to secure Indebtedness, except as permitted by §9.2(ix);
-76-
(vii) Liens affecting the Eligible Borrowing Base Properties in respect of judgments or awards
that are under appeal or have been in force for less than the applicable period for taking an
appeal, so long as execution is not levied thereunder or in
respect of which, at the time, a good faith appeal or proceeding for review is being diligently
prosecuted, and in respect of which a stay of execution shall have been obtained pending such
appeal or review; provided that the Borrower shall have obtained a bond or insurance or
made other arrangements with respect thereto, in each case reasonably satisfactory to the Agent;
(viii) Liens securing Indebtedness for the purchase price of capital assets (other than Real
Estate Assets but including Indebtedness in respect of Capitalized Leases for equipment and other
equipment leases) to the extent not otherwise prohibited by §9.1; and
(ix) first priority mortgages and related financing statements and first priority security
agreements on the Eligible Borrowing Base Properties in existence on the date hereof that are not
Mortgage Collateral Properties or encumbering a Real Estate Asset on or after the date hereof which
becomes an Eligible Borrowing Base Property that is not a Mortgage Collateral Property after the
date hereof pursuant to §8.13(a)(i) and any first priority mortgages and related financing
statements and first priority security agreements in connection with a refinancing of any such
Property Level Debt, provided that the existence of such mortgages and the Indebtedness
secured thereby does not cause the Borrower to be in violation of §10, and provided,
further that prior to Borrower or any of its Subsidiaries obtaining any such refinancing of
any Pledged Property, Borrower shall provide to Agent contemporaneously with or prior to such
refinance (a) a Certificate of Compliance demonstrating that after giving effect to such refinance,
no Default or Event of Default shall exist with respect to the covenants set forth in §10, (b)
evidence satisfactory to Agent that the loan documents evidencing such new indebtedness do not
restrict or prohibit the pledge, assignment and/or transfer of the applicable Pledged Interests and
(c) such replacements or amendments to the applicable Account Agreement as Agent may reasonably
deem necessary or advisable.
(x) other Liens (other than Liens affecting the Eligible Borrowing Base Properties) in
connection with any Indebtedness permitted under §9.1 (other than the unsecured Indebtedness
permitted under clause (i) of §9.1).
Nothing contained in this §9.2 shall (i) restrict or limit the Borrower or any of their
respective Subsidiaries from creating a Lien on any Real Estate Asset which is not an Eligible
Borrowing Base Property and otherwise in compliance with the other terms of this Agreement or (ii)
limit the ability of the Borrower to enter into a contract for the sale of an Eligible Borrowing
Base Property provided that no Default or Event of Default shall have occurred both before
and immediately after giving effect to such sale, including, without limitation, with respect to
each of the financial covenants set forth in §10 of this Agreement on a pro forma
basis both before and immediately after giving effect to such sale.
-77-
The Trust shall not create or incur or suffer to be created or incurred any Lien on any of its
directly-owned properties or assets, including, in any event, its general partner interests and
limited partner interests in the Borrower.
§9.3. Restrictions on Investments. Make or permit to exist or to remain outstanding
any Investment except, with respect to the Borrower and its Subsidiaries only, Investments in:
(a) marketable direct or guaranteed obligations of the United States of America that mature
within one (1) year from the date of purchase (including investments in securities guaranteed by
the United States of America such as securities in so-called “overseas private investment
corporations”);
(b) demand deposits, certificates of deposit, bankers acceptances and time deposits of United
States banks having total assets in excess of $1,000,000,000;
(c) securities commonly known as “commercial paper” issued by a corporation organized and
existing under the laws of the United States of America or any state thereof that at the time of
purchase have been rated and the ratings for which are not less than “P 1” if rated by Xxxxx’x, and
not less than “A 1” if rated by S&P and (ii) investments, classified in accordance with GAAP as
current assets of the Borrower or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, which are administered by financial
institutions that have a rating of not less than “P 1” if rated by Xxxxx’x, and not less than “A 1”
if rated by S&P, and the portfolios of which are limited solely to Investments of the character,
quality and maturity described in clauses (a) and (b) above;
(d) Investments existing on the Amendment No. 5 Effective Date and listed in the financial
statements referred to in §7.4;
(e) other Investments hereafter made in connection with the acquisition and development of
Investment Permitted Properties by the Borrower or any Wholly-Owned Subsidiary of the Borrower,
provided that the aggregate amounts actually invested by Borrower (or if not invested
directly by Borrower, actually invested by an Affiliate of the Borrower for which the Borrower has
any funding obligation) and such Wholly-Owned Subsidiary at any time in Real Estate Assets Under
Development (including all development costs) will not exceed twenty percent (20%) of the
Consolidated Gross Asset Value at the time of any such Investment; and Investments in raw land
intended to be developed by the Borrower or any Wholly-Owned Subsidiary of the Borrower for use as
an Investment Permitted Property, provided that the aggregate amounts actually invested by
Borrower (or if not invested directly by Borrower, actually invested by an Affiliate of the
Borrower for which the Borrower has any funding obligation) and such Wholly-Owned Subsidiary at any
time in raw land will not exceed five percent (5%) of the Consolidated Gross Asset Value at the
time of any such Investment;
-78-
(f) any Investments now or hereafter made in (i) any Wholly-Owned Subsidiary and (ii) any
Subsidiary (other than a Wholly-Owned Subsidiary) or Partially-Owned Entity so long as, in the case
of clause (ii), such Investment is made in connection with Investment Permitted Properties and
provided that the aggregate amounts actually invested by Borrower (or if not invested
directly by Borrower, actually invested by an Affiliate of the Borrower for which the Borrower has
any funding obligation) at any time in Partially-Owned Entities will not exceed ten percent (10%)
of the Consolidated Gross Asset Value at the time of any such Investment;
(g) Investments in respect of (1) equipment, inventory and other tangible personal property
acquired in the ordinary course of business, (2) current trade and customer accounts receivable for
services rendered in the ordinary course of business and payable in accordance with customary trade
terms, (3) advances in the ordinary course of business to employees for travel expenses, drawing
accounts and similar expenditures, and (4) prepaid expenses made in the ordinary course of
business; and
(h) Investments by the Borrower in Structured Finance Investments, provided that the
aggregate investments in such Structured Finance Investments shall not exceed ten percent (10%) of
the Consolidated Gross Asset Value at the time of any such Investment, and further provided that
with respect to any such Investment in mezzanine loans or preferred equity, the documents governing
the terms of such Investments shall be delivered to the Agent promptly upon the Agent’s request
therefor.
In no event shall the aggregate of Investments made pursuant to subclauses (e), (f)(ii) and
(h) above exceed thirty percent (30%) of Consolidated Gross Asset Value at any time.
Notwithstanding the foregoing, the Trust shall be permitted to make and maintain Investments
in the Borrower and the Trust shall contribute to the Borrower, promptly upon, and in any event
within 3 Business Days of, the Trust’s receipt thereof, 100% of the aggregate proceeds received by
the Trust in connection with any offering of stock or debt in the Trust (net of fees and expenses
customarily incurred in such offerings).
§9.4. Merger, Consolidation and Disposition of Assets; Secured Debt Incurrence.
(a) consummate any merger, consolidation, dissolution or liquidation without the prior written
approval of the Majority Lenders (provided that any agreement to do any of the foregoing that would
require the consent of the Majority Lenders hereunder shall be conditioned upon receipt of such
consent or the payment in full of all Obligations), except that so long as no Default or Event of
Default has occurred and is continuing, or would occur after giving effect thereto, (i) the merger
or consolidation of one or more Persons with and into the Borrower or the Trust shall be permitted
in connection with the acquisition of Real Estate Assets if the
-79-
Borrower or the Trust (as
applicable) is the surviving entity; provided that prior to any such merger or
consolidation (other than (x) the merger or consolidation of one or more Wholly-Owned Subsidiaries
with and into the Borrower or (y) the merger or consolidation of two or more Wholly-Owned
Subsidiaries of the Borrower), the Borrower shall provide to the Agent a statement in the form of
Exhibit C hereto signed by the chief financial officer or chief accounting officer of the
Borrower and setting forth in reasonable detail computations evidencing compliance with the
covenants contained in §10 hereof and certifying that no Default or Event of Default has occurred
and is continuing, or would occur and be continuing after giving effect to such merger or
consolidation and all liabilities, fixed or contingent, pursuant thereto, (ii) the merger or
consolidation of any Subsidiary with and into the Borrower or a Subsidiary Guarantor, so long as
(x) the Borrower or such Subsidiary Guarantor, as applicable, is the surviving entity or (y) in the
case of a merger or consolidation between any Subsidiary Guarantor and any Subsidiary, the
surviving entity of such merger or consolidation becomes a Subsidiary Guarantor concurrently with
the consummation thereof, (iii) the merger or consolidation of a Subsidiary with another Subsidiary
or any other Person shall be permitted if none of the parties to such merger or consolidation is
the Borrower or a Subsidiary Guarantor hereunder, and (iv) any Subsidiary (other than a Subsidiary
Guarantor) may dissolve or liquidate in connection with a transaction otherwise permitted hereunder
that results in such Subsidiary owning no assets; or
(b) sell, transfer or otherwise dispose of any Real Estate Assets or other property, including
any Equity Interest (excluding Equity Interests issued by the Trust or FPLP) in any Person in any
one or more transactions in any four-quarter period (collectively and individually, “Sell” or a
“Sale”) (other than Investments permitted under §9.3 and Distributions permitted under §9.6) having
a sales price (net of (i) any Indebtedness secured by a Lien on such Real Estate Assets or other
property, if any, and (ii) the purchase price of any Real Estate Assets or other property acquired
during such four-quarter period, minus closing costs and any Indebtedness secured by a Lien on such
acquired Real Estate Assets or other property), in an amount in excess of twenty percent (20%) of
the most recently reported Consolidated Gross Asset Value or xxxxx x Xxxx to secure Indebtedness
(other than in connection with the refinancing of other Secured Indebtedness incurred in connection
with the acquisition of Real Estate Assets) in any one or more transactions in a four-quarter
period (collectively and individually, an “Indebtedness Lien”) in an amount in excess of twenty
percent (20%) of the most recently reported Consolidated Gross Asset Value unless, in each such
event, the Majority Lenders have given their prior written consent thereto. In addition, prior to
the consummation of any Sale having a net sales price (net of any Indebtedness secured by a Lien on
the applicable Real Estate Asset) in an amount in excess of two percent (2%) of the most recently
reported Consolidated Gross Asset Value or the granting of any Indebtedness Lien in an amount in
excess of two percent (2%) of the most recently reported Consolidated Gross Asset Value, the
Borrower shall have provided to the Agent (with copies to the Agent for each Lender) a compliance
certificate in the form of Exhibit C, hereto signed by the chief financial officer or chief
accounting officer of the Borrower, setting forth in reasonable detail computations evidencing
compliance with the covenants
contained in §10 hereof and certifying that no Default or Event of Default would exist or
occur and be continuing after giving effect to all such proposed Sales or Indebtedness Liens (and
the use of proceeds of such Sales or Indebtedness Liens to pay Indebtedness outstanding hereunder).
-80-
§9.5. Compliance with Environmental Laws. (a) Use any of the Real Estate Assets or
any portion thereof as a facility for the handling, processing, storage or disposal of Hazardous
Substances except for quantities of Hazardous Substances used in the ordinary course of business
and in material compliance with all applicable Environmental Laws, (b) cause or permit to be
located on any of the Real Estate Assets any underground tank or other underground storage
receptacle for Hazardous Substances except in material compliance with Environmental Laws, (c)
generate any Hazardous Substances on any of the Real Estate Assets except in material compliance
with Environmental Laws, or (d) conduct any activity at any Real Estate Asset or use any Real
Estate Asset in any manner so as to cause a Release in violation of applicable Environmental Laws,
unless, with respect to clause (d) above, any such occurrence would not result in a Material
Adverse Effect.
§9.6. Distributions.
(a) The Borrower will not make or declare (i) annual Distributions in excess of 95% of Core
FFO except to the extent (after taking into account all available funds of the Trust from all other
sources) required in order to eliminate all taxable income of the Trust; and (ii) any Distributions
during any period after any monetary Event of Default has occurred; provided,
however, (a) that the Borrower may at all times (including while an Event of Default is
continuing) make Distributions to the extent (after taking into account all available funds of the
Trust from all other sources) required in order to enable the Trust to continue to qualify as a
REIT and (b) in the event that the Borrower cures any such Event of Default in clause (ii) above
and the Agent has accepted such cure prior to accelerating the Loan, the limitation of clause (ii)
above shall cease to apply with respect to such Event of Default.
(b) The Trust will not, during any period when any monetary Event of Default has occurred and
is continuing, make any Distributions in excess of the minimum Distributions required to be made by
the Trust in order to maintain its status as a REIT.
(c) Neither the Borrower nor any Subsidiary Guarantor will enter into any contract or
agreement pursuant to which it agrees not to pledge its legal, equitable or beneficial right, title
and interest in and to Distributions from its Subsidiaries.
§9.7. Government Regulation. The Borrower and the Trust shall not, and shall not
permit any of their respective Subsidiaries to, (a) be or become subject at any time to any law,
regulation, or list of any government agency (including, without limitation, the U.S. Office of
Foreign Asset Control list) that prohibits or limits the Agent or any Lender from making any
advance or
extension of credit to the Borrower or from otherwise conducting business with the Borrower, or (b)
fail to provide documentary and other evidence of the Borrower’s identity as may be requested by
the Agent or any Lender at any time to enable the Agent or any Lender to verify the Borrower’s
identity or to comply with any applicable law or regulation, including, without limitation, Section
326 of the USA Patriot Act.
-81-
§10. FINANCIAL COVENANTS; COVENANTS REGARDING ELIGIBLE BORROWING BASE PROPERTIES. The
Borrower and the Trust, on their own behalf and on behalf of their respective Subsidiaries, jointly
and severally covenant and agree that:
§10.1. Consolidated Total Leverage Ratio. At all times, (i) from the Closing Date
through the fiscal quarter ending September 30, 2011, Consolidated Total Indebtedness shall not
exceed sixty-two and one half of one percent (62.5%) of Consolidated Gross Asset Value, and (ii)
for each fiscal quarter ending on or after December 31, 2011, Consolidated Total Indebtedness shall
not exceed sixty percent (60%) of Consolidated Gross Asset Value as of the last day of such fiscal
quarter. This covenant shall be tested quarterly as of the last day of the applicable quarter.
§10.2. Consolidated Debt Yield. At all times, as tested at the end of each fiscal
quarter, (i) from the Closing Date through the fiscal quarter ending September 30, 2011, the
Consolidated Debt Yield shall not be less than ten and one half of one percent (10.5%), and (ii)
for each fiscal quarter ending on or after December 31, 2011, the Consolidated Debt Yield shall not
be less than eleven percent (11%).
§10.3. Fixed Charge Coverage Ratio. At all times, as tested at the end of each fiscal
quarter, the ratio of (i) Adjusted EBITDA for the four consecutive fiscal quarters ending on the
last day of such fiscal quarter to (ii) Consolidated Fixed Charges for the four consecutive fiscal
quarters ending on the last day of such fiscal quarter must exceed 1.50 to 1.0.
§10.4. Net Worth. At all times, as tested at the end of each fiscal quarter and any
other date of measurement, the Consolidated Tangible Net Worth of the Borrower and its Subsidiaries
shall not be less than the sum of (i) $690,289,992 plus (ii) 80% of the aggregate proceeds
received by the Trust (net of fees and expenses customarily incurred in transactions of such type)
in connection with any offering of stock in the Trust, plus (iii) 80% of the aggregate
value of operating units issued by the Borrower in connection with asset or stock acquisitions
(valued at the time of issuance by reference to the terms of the agreement pursuant to which such
units are issued), in each case after the Closing Date and on or prior to the date such
determination of Consolidated Net Worth is made.
§10.5. Borrowing Base Pool Leverage. At all times, as tested at the end of each
fiscal quarter and any other date of measurement, (i) from the Closing Date through the fiscal
quarter ending December 31, 2011, the Borrower shall not permit Consolidated Borrowing Base
Indebtedness as at the last day of each fiscal quarter to exceed sixty-five percent (65%) of the
aggregate Value of Eligible Borrowing Base Properties on the last day of such fiscal quarter, (ii)
for each fiscal quarter ending on or after March 31, 2012 through the fiscal quarter ending
December 31, 2012, Borrower shall not permit Consolidated Borrowing Base Indebtedness as at the
last day of each fiscal quarter to exceed sixty-two and one-half of one percent (62.5%) of the
aggregate Value of Eligible Borrowing Base Properties on the last day of such fiscal quarter, and
(iii) from and after the fiscal quarter ending March 31, 2013, Borrower shall not permit
Consolidated Borrowing Base Indebtedness as at the last day of each fiscal quarter to exceed sixty
percent (60%) of the aggregate Value of Eligible Borrowing Base Properties on the last day of such
fiscal quarter.
-82-
§10.6. Borrowing Base Pool Debt Service Coverage Ratio. At all times, as tested at
the end of each fiscal quarter or any other date of measurement, the ratio of (i) Adjusted Net
Operating Income for the applicable quarter, annualized; divided by (ii) Implied Debt Service for
the applicable quarter, annualized, shall not be less than (a) from the Closing Date through the
fiscal quarter ending December 31, 2010, 1.40 to 1.00, (b) from the fiscal quarter ending March 31,
2011 through the fiscal quarter ending December 31, 2011, 1.45 to 1.00, (c) from the fiscal quarter
ending March 31, 2012 through the fiscal quarter ending December 31, 2012, 1.50 to 1.00, and (d)
from and after the fiscal quarter ending March 31, 2013, 1.55 to 1.00.
§10.7. [Reserved]
§11. [Reserved]
§12. CONDITIONS TO THE FIRST ADVANCE. The obligations of any Lender to make the Term
Loan (and to maintain the existing outstanding Term Loan) shall be subject to the satisfaction of
the following conditions precedent on or prior to the Closing Date with, in each instance, the
Agent, acting on behalf of the Lenders, having approved in its sole discretion each matter
submitted to it in compliance with such conditions:
§12.1. Loan Documents. Each of the Loan Documents shall have been duly executed and
delivered by the respective parties thereto and shall be in full force and effect.
§12.2. Certified Copies of Organization Documents. The Agent shall have received (i)
from the Borrower a copy, certified as of a recent date by a duly authorized officer of the Trust,
in its capacity as general partner of the Borrower, to be true and complete, of the Agreement of
Limited Partnership of FPLP and all other Organizational Documents or other agreements governing
the rights of the partners or other equity owners of the Borrower and each Subsidiary Guarantor,
and (ii) from the Trust a copy, certified as of a recent date by the appropriate officer of the
State of Maryland to be true and correct, of the corporate charter of the Trust, in each case along
with any other organization documents of the Borrower or the Trust and their respective general
partners, as the case may be, and each as in effect on the date of such certification.
-83-
§12.3. By-laws; Resolutions. All action on the part of the Borrower, each Subsidiary
Guarantor and the Trust necessary for the valid execution, delivery and performance by the
Borrower, the Subsidiary Guarantors and the Trust of this Agreement and the other Loan Documents to
which any of them is or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Agent shall have been provided to the Agent. The Agent shall
have received from the Trust true copies of its by-laws and the resolutions adopted by its board of
directors or trustees authorizing the transactions described herein and evidencing the due
authorization, execution and delivery of the Loan Documents to which the Trust and/or the Borrower
is a party, each certified by the secretary as of a recent date to be true and complete.
§12.4. Incumbency Certificate; Authorized Signers. The Agent shall have received from
the Trust an incumbency certificate, dated as of the Closing Date, signed by a duly authorized
officer of the Trust, the Borrower and/or each Subsidiary Guarantor, as applicable, and giving the
name of each individual who shall be authorized: (a) to sign, in the name and on behalf of the
Borrower, the Subsidiary Guarantors and the Trust, as the case may be, each of the Loan Documents
to which the Borrower, a Subsidiary Guarantor or the Trust is or is to become a party; (b) to make
the Completed Loan Request and Conversion Requests on behalf of the Borrower and (c) to give
notices and to take other action on behalf of the Borrower, the Subsidiary Guarantors or the Trust,
as applicable, under the Loan Documents.
§12.5. Opinion of Counsel Concerning Organization and Loan Documents. Each of the
Lenders and the Agent shall have received favorable opinions addressed to the Lenders and the Agent
in form and substance reasonably satisfactory to the Lenders and the Agent from Xxxxx Lovells LLP
and, if any, state specific local counsel who are reasonably satisfactory to Agent, each as counsel
to the Borrower, each Subsidiary Guarantor, the Trust and their respective Subsidiaries, the
Pledged Interests, and the Loan Documents with respect to applicable law.
§12.6. Guarantees. The Trust Guaranty shall have been duly executed and delivered by
the Trust. The Subsidiary Guaranty shall have been duly executed and delivered by each Subsidiary
Xxxxxxxxx.
§00.0. Certifications from Government Officials; UCC-11 Reports.
The Agent shall have received (i) long-form certifications from government officials
evidencing the legal existence, good standing and foreign qualification of the Borrower, each
Subsidiary Guarantor and the Trust, along with a certified copy of the Organizational Documents
filed with any Secretary of State for the Borrower, each Subsidiary Guarantor and the Trust, all as
of the most recent practicable date; and (ii) UCC-11 search results from the appropriate
jurisdictions for the Borrower, each Subsidiary Guarantor and the Trust.
§12.8. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Agreement, the other Loan Documents and all other documents
incident thereto shall be satisfactory in form and substance to each of the Lenders and to the
Agent’s counsel, and the Agent, each of the Lenders and such counsel shall have received all
information and such counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
-84-
§12.9. Fees. The Borrower shall have paid to the Agent, for the accounts of the
Lenders or for its own account, as applicable, all of the fees and expenses that are due and
payable as of the Closing Date in accordance with this Agreement or any separate fee letter entered
into by the Borrower and the Trust and the Agent.
§12.10. Closing Certificate. The Borrower and the Guarantor shall have delivered a
Closing Certificate to the Agent, in form and substance satisfactory to the Agent, including,
without limitation, a certification that as of the Closing Date, neither the Borrower nor any
Subsidiary Guarantor is in default under any Indebtedness.
§12.11. Other Matters. The Borrower, the Subsidiary Guarantors and the Trust shall
have delivered to the Agent, in form and substance satisfactory to the Agent, such other
information, documents, certificates and other items reasonably requested by the Agent.
§13. [RESERVED].
§14. EVENTS OF DEFAULT; ACCELERATION; ETC.
§14.1. Events of Default and Acceleration. If any of the following events (“Events of
Default”) shall occur:
(a) Except as permitted hereunder, the Borrower shall fail to pay any principal of Term Loan
A, Term Loan B, Term Loan C or Term Loan D when the same shall become due and payable, whether at
the stated date of maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on Term Loan A, Term Loan B, Term Loan C or
Term Loan D or any other sums due hereunder or under any of the other Loan Documents or any fee
letter (including, without limitation, amounts due under §8.16) when the same shall become due and
payable, and such failure continues for three (3) days;
(c) the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries
shall fail to comply, or to cause the Trust to comply, as the case may be, with any of the
respective covenants contained in the following: §8.1 (except with respect to principal, interest
and other sums covered by clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive; §8.12;
§8.13; §8.15; §8.19; §8.20; §8.21; §9 and §10;
(d) the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries
shall fail to perform any other term, covenant or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere in this §14) and such failure continues for
thirty (30) days after the earlier of the knowledge of any responsible officer of the Borrower or
notice thereof from the Agent;
-85-
(e) any representation or warranty made by or on behalf of the Borrower, any Subsidiary
Guarantor, the Trust or any of their respective Subsidiaries in this Agreement or any of the other
Loan Documents shall prove to have been false in any material respect upon the date when made or
deemed to have been made or repeated;
(f) (i) the Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to
the extent of Recourse to the Borrower, the Subsidiary Guarantor, the Trust or such Subsidiaries
thereunder, any Partially-Owned Entity or other of their respective Affiliates, shall (x) fail to
pay at maturity, or within any applicable period of grace, any Indebtedness for borrowed money or
credit received or in respect of any Capitalized Leases, which is in excess of (A) $60,000,000,
either individually or in the aggregate, if such Indebtedness is Without Recourse and (B)
$20,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, (y) with
respect to any Indebtedness that is Recourse and in excess of $20,000,000, either individually or
in the aggregate, fail to observe or perform any material term, covenant, condition or agreement
contained in any agreement, document or instrument by which it is bound evidencing, securing or
otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing borrowed
money or credit received or in respect of any Capitalized Leases for such period of time (after the
giving of appropriate notice if required) as would permit the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof or (z) with respect to any
Indebtedness that is Without Recourse and in excess of
$60,000,000, either individually or in the aggregate, (1) fail to pay at maturity, or within any
applicable period of grace, any such Indebtedness or (2) fail to observe or perform any material
term, covenant, condition or agreement contained in any agreement, document or instrument by which
it is bound evidencing, securing or otherwise relating to such Indebtedness or obligations,
evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases
for such period of time (after the giving of appropriate notice if required) that results in the
holder or holders thereof or of any obligations issued thereunder accelerating the maturity
thereof; provided, however, that any such Indebtedness that is Without Recourse
shall be treated as Indebtedness that is Recourse to the extent that the same has become Recourse
to the Borrower, the Trust or any of its Subsidiaries upon the occurrence of an event constituting
an exception to non-recourse liability, such as fraud, misapplication of funds, violations of
Environmental Laws, and other similar exceptions, under any agreement, document or instrument
evidencing, securing or otherwise relating to such Indebtedness; (ii) any Event of Default shall
occur under (and as defined in) the Unsecured Revolver Agreement or under (and as defined in) the
2011 Term Loan Agreement; or (iii) subject to the Borrower’s ability to remove Real Estate Assets
from the Borrowing Base Pool in accordance with the provisions set forth in this §14, any event of
default (beyond any applicable notice and grace periods) shall occur under any Property Level Loan
Document; or
-86-
(g) the Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries
shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, a
Subsidiary Guarantor, the Trust or any of their respective Subsidiaries or of any substantial part
of the properties or assets of any of such parties or shall commence any case or other proceeding
relating to any of the Borrower, a Subsidiary Guarantor, the Trust or any of their respective
Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall
take any action to authorize or in furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall be commenced against any of
the Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries and (i) any
of the Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall
indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition,
application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a
period of sixty (60) days provided that the foregoing, to the extent applicable solely to
one or more Subsidiaries of FPLP to which no more than 5% (individually and in the aggregate) of
the most recently reported Consolidated Gross Asset Value is attributable, shall not be an Event of
Default hereunder so long as no motion to consolidate the Borrower, the Trust or any other
Subsidiaries has been made;
(h) a decree or order is entered appointing any trustee, custodian, liquidator or receiver or
adjudicating any of the Borrower, a Subsidiary Guarantor, the
Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered in respect of any of the
Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in an
involuntary case under federal bankruptcy laws as now or hereafter constituted provided
that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP to which no
more than 5% (individually and in the aggregate) of the most recently reported Consolidated Gross
Asset Value is attributable, shall not be an Event of Default hereunder so long as no motion to
consolidate the Borrower, the Trust or any other Subsidiaries has been made at any time prior
thereto or in connection therewith;
(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty
(30) days, whether or not consecutive, any uninsured final judgment against any of the Borrower, a
Subsidiary Guarantor, the Trust or any of their respective Subsidiaries that, with other
outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such
parties exceeds in the aggregate $5,000,000; provided that the foregoing, to the extent applicable
solely to one or more Subsidiaries of FPLP to which no more than 5% (individually and in the
aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, it shall
not be an Event of Default hereunder so long as neither the Borrower, the Trust or any Subsidiaries
not meeting the de minimus test above are liable for such judgments;
-87-
(j) any of the Loan Documents or any material provision of any Loan Document shall be
canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or
with the express prior written agreement, consent or approval of the Agent, or any action at law,
suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of
the Loan Documents shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or
any of their Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction shall make a determination
that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan
Documents is illegal, invalid or unenforceable as to any material terms thereof; or the Agent shall
fail to have a perfected first-priority security interest in any of the Collateral; or
(k) any “Event of Default”, as defined or provided in any of the other Loan Documents, has
occurred;
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred
and the Majority Lenders shall have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries or
the Trust or any of its Subsidiaries or any ERISA Affiliate of any such entity to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 or such event reasonably could
constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to administer such
Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court
to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed
Pension Plan; or with respect to any Multiemployer Plan, the Borrower or any of its Subsidiaries or
the Trust or any of its Subsidiaries or any ERISA Affiliate of any such entity shall have become
subject to a withdrawal liability (or with the passage of time will become subject to a withdrawal
liability) in an aggregate amount exceeding $5,000,000;
(m) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base
Pool in accordance with the provisions set forth below in this §14, the failure of any of the Real
Estate Assets being included from time to time as part of the Borrowing Base Pool to comply with
any of the conditions set forth in the definition of Eligible Borrowing Base Properties;
(n) there occurs any Change of Control; or
(o) without limitation of the other provisions of this §14.1, the Trust shall at any time fail
to be the sole general partner of FPLP (or shall enter into any agreement to permit any other
Person to acquire a general partner interest in FPLP) or shall at any time be in contravention of
any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without
limitation, the last paragraph of §9.3);
-88-
then, and in any such event, so long as the same may be continuing, the Agent shall, at the
direction of the Majority Lenders, or may, with the consent of the Majority Lenders, declare all
amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and
they shall thereupon forthwith become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by the Borrower, each
Subsidiary Guarantor, the Trust and each of their respective Subsidiaries; provided that in
the event of any Event of Default specified in §14.1(g) or 14.1(h), all such amounts shall become
immediately due and payable automatically and without any requirement of notice from any of the
Lenders or the Agent or action by the Lenders or the Agent.
Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of
Default arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base Pool at
any particular time of reference, if such Default or Event of Default is capable of being cured by
the exclusion of such Real Estate Asset from the Borrowing Base Pool in accordance with, and
subject to, §8.13 and with all other covenant calculations under §10 or otherwise, the Borrower
shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the
Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing
compliance with the covenants set forth in §10 (with calculations evidencing such compliance after
excluding from Adjusted Net Operating Income all of the Adjusted Net Operating Income
generated by the Real Estate Asset to be excluded from the Borrowing Base Pool) and with the
Borrowing Base Property Conditions, and otherwise certifying that, after giving effect to the
exclusion of such Real Estate Asset from the Borrowing Base Pool, no Default or Event of Default
will be continuing.
§14.2. Default under Property Level Debt. The Borrower, for itself and on behalf of
each of its Subsidiaries, hereby agrees that that upon the occurrence and during the continuation
of an Event of Default, the Agent shall have the right, but not the obligation, to pay any sums or
to take any action, to the extent that the applicable Subsidiary Guarantor is permitted to take
such action under the terms of the Property Level Loan Documents, which the Agent deems necessary
or advisable to cure any default or event of default under the Property Level Loan Documents
(whether or not the Subsidiary Guarantors are undertaking efforts to cure such default or event of
default under the Property Level Loan Documents or an Event of Default hereunder), and such payment
or such action is hereby authorized by the Borrower, for itself and on behalf of each of its
Subsidiaries, and any sum so paid and any expense incurred by the Agent in taking any such action
shall be evidenced by this Agreement and secured by the Security Documents and shall be immediately
due and payable by Borrower to the Agent with interest at the rate for overdue amounts set forth in
§4.9 until paid. The Agent shall be authorized to take such actions upon the written assertion by
any holder of any of the Property Level Loan Documents of the existence of such default or event of
default without any duty to inquire or determine whether such default or event of default
-89-
exists.
The Borrower shall cause the Subsidiary Guarantors to permit the Agent to enter upon the Eligible
Borrowing Base Properties for the purpose of curing any actual or alleged default or event of
default under the Property Level Loan Documents or hereunder. The Borrower, for itself and on
behalf of each of its Subsidiaries, hereby transfers and assigns to the Agent any excess proceeds
arising from any foreclosure or sale under power pursuant to the Property Level Loan Documents, and
the Borrower, for itself and on behalf of each of its Subsidiaries, hereby authorizes and directs
the holder or holders of the Property Level Loan Documents to pay such excess proceeds directly to
the Agent up to the amount of the obligations owed to the Agent and the Lenders under the Loan
Documents.
§14.3. Remedies. In the event that one or more Events of Default shall have occurred
and be continuing, whether or not the Lenders shall have accelerated the maturity of the Term Loan
pursuant to §14.1, the Majority Lenders may direct the Agent to proceed to protect and enforce the
rights and remedies of the Agent and the Lenders under this Agreement, the Notes, any or all of the
other Loan Documents or under applicable law by suit in equity, action at law or other appropriate
proceeding (including for the specific performance of any covenant or agreement contained in this
Agreement or the other Loan Documents or any instrument pursuant to which the Obligations are
evidenced and, to the full extent permitted by applicable law, the obtaining of the ex
parte appointment of a receiver), and, if any amount shall have become due, by declaration or
otherwise, proceed to enforce the payment thereof or any other legal or equitable right or remedy
of the Agent and the Lenders under the Loan
Documents or applicable law. No remedy herein conferred upon the Lenders or the Agent or the
holder of any Note is intended to be exclusive of any other remedy and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or under any of the
other Loan Documents or now or hereafter existing at law or in equity or by statute or any other
provision of law.
§14.4. Application of Funds
After the exercise of remedies provided for herein (or after the Loans have automatically
become immediately due and payable), any amounts received on account of the Obligations shall,
subject to the provisions of §4.11, be applied by the Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and
amounts payable under §§4.4, 4.5, 4.6, 4.8 and 17) payable to the Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including fees,
charges and disbursements of counsel to the respective Lenders and amounts payable under §§4.4,
4.5, 4.6, 4.8 and 17), ratably among them in proportion to the respective amounts described in this
clause Second payable to them;
-90-
Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and other Obligations, ratably among the Lenders in proportion to the
respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, ratably among the Lenders in proportion to the respective amounts described in this
clause Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by law.
§15. SET-OFF.
§15.1 [Reserved]
§15.2 Set-Off and Debit. (i) If any Event of Default or other event which would
entitle the Agent to accelerate the Term Loan occurs, or (ii) at any time, whether or not any
Default or Event of Default exists, in the event any attachment, trustee process, garnishment, or
other levy or lien is, or is sought to be, imposed on any property of the Borrower, a Subsidiary
Guarantor or an Unsecured Revolver Subsidiary Guarantor; then, in any such event, any such
deposits, balances or other sums credited by or due from the Agent or any Lender, or from any such
affiliate of the Agent or any Lender, to the Borrower, a Subsidiary Guarantor or an
Unsecured Revolver Subsidiary Guarantor may to the fullest extent not prohibited by applicable law
at any time or from time to time, without regard to the existence, sufficiency or adequacy of any
other collateral, and without notice or compliance with any other condition precedent now or
hereafter imposed by statute, rule of law or otherwise, all of which are hereby waived, be set off,
debited and appropriated, and applied by the Agent or any Lender, as the case may be, against any
or all of the Obligations irrespective of whether demand shall have been made and although such
Obligations may be unmatured, in such manner as the Agent or the applicable Lender in its sole and
absolute discretion may determine. Within five (5) Business Days of making any such set off, debit
or appropriation and application, each Lender agrees to notify the Agent and the Borrower thereof
(or in the case of any such set off, debit or appropriation and application by the Agent, the Agent
agrees to notify the Borrower thereof), provided that the failure to give such notice shall
not affect the validity of such set off, debit or appropriation and application. ANY AND ALL
RIGHTS TO REQUIRE THE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY
OTHER COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED. Each of the Lenders agrees with each other Lender that (a) if an amount to be
set off is to be applied to indebtedness of the Borrower to such Lender, other than the Obligations
owing to such Lender, such amount shall be applied ratably to such other indebtedness and to the
Obligations owing to such Lender, and (b) if such Lender shall receive from the
-91-
Borrower, whether
by voluntary payment, exercise of the right of setoff, counterclaim, cross action, enforcement of
Obligations owing to such Lender by proceedings against the Borrower, a Subsidiary Guarantor or an
Unsecured Revolver Subsidiary Guarantor at law or in equity or by proof thereof in bankruptcy,
reorganization liquidation, receivership or similar proceedings, or otherwise, and shall retain and
apply to the payment of the Obligations owing to such Lender any amount in excess of its ratable
portion of the payments received by all of the Lenders with respect to the Obligations owing to all
of the Lenders, such Lender will make such disposition and arrangements with the other Lenders with
respect to such excess, either by way of distribution, pro tanto assignment of claims, subrogation
or otherwise as shall result in each Lender receiving in respect of the Obligations owing to it its
proportionate payment as contemplated by this Agreement; provided that if all or any part of such
excess payment is thereafter recovered from such Lender, such disposition and arrangements shall be
rescinded and the amount restored to the extent of such recovery, but without interest.
§15.3 [Reserved]
§15.4 Additional Rights. The rights of the Agent, the Lenders and each affiliate of
Agent and each of the Lenders under this Section 15 are in addition to, and not in limitation of,
other rights and remedies, including other rights of set off, which the Agent or any Lender may
have.
§16. THE AGENT.
§16.1. Authorization. (a) The Agent is authorized to take such action on behalf of
each of the Lenders and to exercise all such powers as are hereunder and under any of the other
Loan Documents and any related documents delegated to the Agent, together with such powers as are
reasonably incident thereto, provided that no duties or responsibilities not expressly
assumed herein or therein shall be implied to have been assumed by the Agent. The relationship
between the Agent and the Lenders is and shall be that of agent and principal only, and nothing
contained in this Agreement or any of the other Loan Documents shall be construed to constitute the
Agent as a trustee or fiduciary for any Lender.
(b) The Borrower, without further inquiry or investigation, shall, and is hereby authorized by
the Lenders to, assume that all actions taken by the Agent hereunder and in connection with or
under the Loan Documents are duly authorized by the Lenders. The Lenders shall notify Borrower of
any successor to Agent by a writing signed by Majority Lenders, which successor shall be reasonably
acceptable to the Borrower so long as no Default or Event of Default has occurred and is
continuing. The Borrower acknowledges that any Lender which acquires KeyBank is acceptable as a
successor to the Agent.
§16.2. Employees and Agents. The Agent may exercise its powers and execute its duties
by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons as the Agent in its sole discretion
may reasonably determine, and all reasonable fees and expenses of any such Persons shall be paid by
the Borrower.
-92-
§16.3. No Liability. Neither the Agent, nor any of its shareholders, directors,
officers or employees nor any other Person assisting them in their duties nor any agent or employee
thereof, shall be liable for any waiver, consent or approval given or any action taken, or omitted
to be taken, in good faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any oversight or error
of judgment whatsoever, except that the Agent may be liable for losses due to its willful
misconduct or gross negligence, as finally determined by a court of competent jurisdiction.
§16.4. No Representations. The Agent shall not be responsible for the execution or
validity or enforceability of this Agreement, the Notes or any of the other Loan Documents or for
the validity, enforceability or collectability of any such amounts owing with respect to the Notes,
or for any recitals or statements, warranties or representations made herein or in any of the other
Loan Documents or in any certificate or instrument hereafter furnished to it by or on behalf of the
Trust or the Borrower or any of their respective Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the terms, conditions, covenants
or agreements in this Agreement or the other Loan Documents. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it by the Borrower, a
Subsidiary Guarantor, an Unsecured Revolver Subsidiary Guarantor or the Trust or any holder of any
of the Notes shall have been duly authorized or is true, accurate and complete. The Agent has not
made nor does it now make any representations or warranties, express or implied, nor does it assume
any liability to the Lenders, with respect to the credit worthiness or financial condition of the
Borrower, a Subsidiary Guarantor, an Unsecured Revolver Subsidiary Guarantor or any of their
respective Subsidiaries or the Trust or any of the Subsidiaries or any tenant under a Lease or any
other entity. Each Lender acknowledges that it has, independently and without reliance upon the
Agent or any other Lender, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement.
§16.5. Payments.
(a) A payment by the Borrower to the Agent hereunder or any of the other Loan Documents for
the account of any Lender shall constitute a payment to such Lender on the date received, if before
1:00 p.m. (Cleveland, Ohio time), and if after 1:00 p.m. (Cleveland, Ohio time), on the next
Business Day. The Agent agrees to distribute to each Lender such Lender’s pro rata share
of payments received by the Agent for the accounts of all the Lenders, as provided herein or in any
of the other Loan Documents. All such payments by the Agent to the Lenders shall be made on the
date received, if before 1:00 p.m., and if after 1:00 p.m., on the next Business Day.
-93-
(b) If in the reasonable opinion of the Agent the distribution of any amount received by it in
such capacity hereunder, under the Notes or under any of the other Loan Documents might involve it
in material liability, it may refrain from making distribution until its right to make distribution
shall have been adjudicated by a court of competent jurisdiction, provided that the Agent
shall invest any such undistributed amounts in overnight obligations on behalf of the Lenders and
interest thereon shall be paid pro rata to the Lenders. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
§16.6. Holders of Notes. The Agent may deem and treat the payee of any Notes as the
absolute owner or purchaser thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder, assignee or transferee.
§16.7. Indemnity. The Lenders ratably and severally agree hereby to indemnify and
hold harmless the Agent and its Affiliates
from and against any and all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Agent has not been reimbursed by the
Borrower as required by §17), and liabilities of every nature and character arising out of or
related to this Agreement, the Notes, or any of the other Loan Documents or the transactions
contemplated or evidenced hereby or thereby, or the Agent’s actions taken hereunder or thereunder,
except to the extent that any of the same shall be directly caused by the Agent’s willful
misconduct or gross negligence, as finally determined by a court of competent jurisdiction.
§16.8. Agent as Lender. In its individual capacity as a Lender, KeyBank shall have
the same obligations and the same rights, powers and privileges in respect to its Commitment and
the Term Loan made by it, and as the holder of any of the Notes, as it would have were it not also
the Agent.
§16.9. Notification of Defaults and Events of Default. Each Lender hereby agrees
that, upon learning of the existence of a Default or an Event of Default, it shall (to the extent
notice has not previously been provided) promptly notify the Agent thereof. The Agent hereby
agrees that upon receipt of any notice under this §16.9 it shall promptly notify the other Lenders
of the existence of such Default or Event of Default.
-94-
§16.10. Duties in Case of Enforcement. In the case one or more Events of Default
have occurred and shall be continuing, and whether or not acceleration of the Obligations shall
have occurred, the Agent shall, at the request, or may, upon the consent, of the Majority Lenders,
and provided that the Lenders have given to the Agent such additional indemnities and assurances
against expenses and liabilities as the Agent may reasonably request, proceed to enforce the
provisions of this Loan Agreement and the other Loan Documents and the exercise of any other legal
or equitable rights or remedies as it may have hereunder or under any other Loan Document or
otherwise by virtue of applicable law, or to refrain from so acting if similarly requested by the
Majority Lenders. The Agent shall be fully protected in so acting or refraining from acting upon
the instruction of the Majority Lenders, and such instruction shall be binding upon all the
Lenders. The Majority Lenders may direct the Agent in writing as to the method and the extent of
any such foreclosure, sale or other disposition or the exercise of any other right or remedy, the
Lenders hereby agreeing to severally indemnify and hold the Agent harmless from all costs and
liabilities incurred in respect of all actions taken or omitted in accordance with such direction,
provided that the Agent need not comply with any such direction to the extent that the
Agent reasonably believes the Agent’s compliance with such direction may expose the Agent to
liability or be contrary to the Loan Documents or applicable law. The Agent may, in its discretion
but without obligation, in the absence of direction from the Majority Lenders, take such interim
actions as it believes reasonably necessary to preserve the rights of the Lenders hereunder,
including but not limited to petitioning a court for injunctive relief or appointment of a
receiver. Each of the Lenders acknowledges and agrees that, except for any rights of set-off
pursuant to and in accordance with §15.2
hereof, no individual Lender may separately enforce or exercise any of the provisions of any of the
Loan Documents, including without limitation the Notes, other than through the Agent. The Agent
shall advise the Lenders of all such action taken by the Agent.
§16.11. Successor Agent. KeyBank, or any successor Agent, may resign as Agent at any
time by giving at least 30 days prior written notice thereof to the Lenders and to the Borrower.
Any such resignation shall be effective upon appointment and acceptance of a successor Agent, as
hereinafter provided. Upon any such resignation or removal pursuant to the last sentence of this §
16.11, the Majority Lenders shall have the right to appoint a successor Agent, which is a Lender
under this Agreement, provided that so long as no Default or Event of Default has occurred
and is continuing the Borrower shall have the right to approve any successor Agent, which approval
shall not be unreasonably withheld. If, in the case of a resignation by the Agent, no successor
Agent shall have been so appointed by the Majority Lenders and approved by the Borrower, and shall
have accepted such appointment, within thirty (30) days after the retiring Agent’s giving of notice
of resignation, then the retiring Agent may, on behalf of the Lenders, appoint any one of the other
Lenders as a successor Agent. The Borrower acknowledges that any Lender which acquires KeyBank is
acceptable as a successor Agent. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from all further duties and obligations as Agent under this Agreement. After any
Agent’s resignation hereunder as Agent, the provisions of this §16 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this Agreement. The Agent
agrees that it shall not assign any of its rights or duties as Agent to any other Person. The Agent
may be removed at the direction of the Majority Lenders in the event of a final judicial
determination (in which the Agent had an opportunity to be heard) that the Agent had acted in a
grossly negligent manner or in willful misconduct.
-95-
§16.12. Notices. Any notices or other information required hereunder to be provided
to the Agent (with copies to the Agent for each Lender) shall be promptly forwarded by the Agent to
each of the Lenders.
§17. EXPENSES AND INDEMNIFICATION.
(a) Expenses. The Borrower agrees to pay (i) the reasonable and documented
out-of-pocket fees, expenses and disbursements incurred by the Agent (including the reasonable and
invoiced out-of-pocket fees, expenses and disbursements of outside counsel or any local counsel to
the Agent) in connection with the preparation, administration, negotiation or interpretation of the
Loan Documents and other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (ii) all reasonable and
documented out-of-pocket fees, expenses and disbursements (including reasonable and documented
out-of-pocket
attorneys’ fees, expenses and disbursements, and the fees and costs of engineers, appraisers,
surveyors, investment bankers, or other experts retained by any Lender or the Agent in connection
with any enforcement proceedings) incurred by any Lender or the Agent in connection with (A) the
enforcement of or preservation of rights under any of the Loan Documents against the Borrower or
any of its Subsidiaries or the Trust or the administration thereof after the occurrence and during
the continuance of a Default or Event of Default (including, without limitation, expenses incurred
in any restructuring and/or “workout” of the Loans), and (B) any litigation, proceeding or dispute
arising out of, in connection with or as a result of this Agreement or the financing contemplated
hereby; provided, however, that in connection with any one such action or any
separate but substantially similar or related actions in the same jurisdiction, in each case
described in this clause (ii), the Borrower shall not be liable for the fees and expenses of more
than one counsel to the Agent and the Lenders (along with one local counsel in each applicable
jurisdiction), unless there shall exist an actual conflict of interest among such Persons, and in
such case, not more than one additional counsel to the affected parties (along with one additional
local counsel in each applicable jurisdiction), and (iii) all reasonable and documented
out-of-pocket costs incurred by the Agent in the future in connection with (x) an inspection
pursuant to §8.10, but only if the Person acting as Agent hereunder is not also the “Agent” (or
such other similar term as used therein) under the Unsecured Revolver Agreement or the 2011 Term
Loan Agreement, and (y) its inspection of the Eligible Borrowing Base Properties (or any proposed
Eligible Borrowing Base Property) or with the addition of any Eligible Borrowing Base Property.
-96-
(b) Indemnification. The Borrower agrees to indemnify and hold harmless the Agent,
the Arranger, the Lenders and each of their respective Related Parties (each, an “Indemnitee”) from
and against any and all claims, actions and suits, whether groundless or otherwise, and from and
against any and all liabilities, losses, settlement payments, obligations, damages and expenses of
every nature and character arising out of, in connection with, or as a result of this Agreement or
any of the other Loan Documents or the transactions contemplated hereby or thereby or which
otherwise arise in connection with this financing, including, without limitation, (i) any actual or
proposed use by the
Borrower or any of its Subsidiaries of the proceeds of any of the Loans, (ii)
(a) the Borrower or any of its Subsidiaries entering into or performing this Agreement or any of
the other Loan Documents or (b) the Agent or any Lender entering into or exercising any of its
rights or remedies under this Agreement or any of the other Loan Documents; provided,
however, that for clarity, this clause (ii)(b) shall not apply to expenses incurred by any
Lender unless incurred by such Lender as an Indemnitee as a result of a third party claim, action
or suit, or (iii) pursuant to §8.16, in each case including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such investigation, litigation or
other proceeding(including, without limitation, any proceeding under any Debtor Relief Law),
provided, however, that the Borrower shall not be obligated under this §17(b) to indemnify any
Person for (x) liabilities arising from such Person’s own gross negligence, willful misconduct or
breach of this Agreement, as finally determined by a court of competent jurisdiction, (y) amounts
constituting Excluded Taxes or (z) result from any dispute solely among the Indemnitees. If and to
the extent that the
obligations of the Borrower under this §17(b) are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The indemnification provisions of §17(b) shall apply to
any indemnity proceeding arising during the pendency of any bankruptcy proceeding filed by or
against the Borrower and/or any of its Subsidiaries.
(c) Limitation. It is understood that, with respect to any particular action, suit,
proceeding or investigation subject to indemnification hereunder, the Borrower shall not be
required to reimburse, or indemnify and hold harmless for, the reasonable and documented legal fees
and expenses of more than one outside counsel (in addition to up to one local counsel in each
applicable local jurisdiction) for all Indemnitees that are the subject of such action, suit,
proceeding or investigation unless there shall exist an actual conflict of interest, in which case
the Borrower shall be required to reimburse, or indemnify and hold harmless for, the reasonable and
documented legal fees and expenses of one additional counsel to the affected parties (along with
one additional local counsel in each applicable jurisdiction).
(d) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsections (a) or (b) of this §17 to be paid by it to
the Agent or any Related Party of the Agent, each Lender severally agrees to pay to the Agent or
such Related Party, as the case may be, such Lender’s pro rata portion (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agent in its capacity as such,
or against such Related Party acting for the Agent in connection with such capacity.
-97-
(e) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby or thereby, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No
Indemnitee shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed to such unintended recipients by such Indemnitee through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than
for direct or actual damages resulting from the fraud, gross negligence or willful misconduct of
such Indemnitee as determined by a final and nonappealable judgment of a court of competent
jurisdiction.
(f) Payments. All amounts due under this §17 shall be payable not later than fifteen
(15) Business Days after receipt by Borrower of a reasonably detailed invoice therefor.
(g) Survival. The agreements in §17 shall survive the resignation or removal of the
Agent, the replacement of any Lender, the termination of the Commitments in whole or in part, the
termination of this Agreement and the repayment, satisfaction or discharge of all the Obligations.
§18. [RESERVED].
§19. SURVIVAL OF COVENANTS, ETC. All covenants, agreements, representations and
warranties made herein, in the Notes, in any of the other Loan Documents or in any documents or
other papers delivered by or on behalf of the Borrower, any Subsidiary Guarantor, any Unsecured
Revolver Subsidiary Guarantor or any of their respective Subsidiaries or the Trust pursuant hereto
shall be deemed to have been relied upon by the Lenders and the Agent, notwithstanding any
investigation heretofore or hereafter made by any of them, and shall survive the making by the
Lenders of the Term Loan as herein contemplated, and shall continue in full force and effect so
long as any amount due under this Agreement or the Notes or any of the other Loan Documents remains
outstanding. The indemnification obligations of the Borrower provided herein and in the other Loan
Documents shall survive the full repayment of amounts due and the termination of the obligations of
the Lenders hereunder and thereunder to the extent provided herein and therein. All statements
contained in any certificate or other paper delivered to any Lender or the Agent at any time by or
on behalf of the Borrower, any Subsidiary Guarantor, any Unsecured Revolver Subsidiary Guarantor or
any of their respective Subsidiaries or the Trust pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties by the Borrower,
such Subsidiary Guarantor, such Unsecured Revolver Subsidiary Guarantor or such Subsidiary or the
Trust hereunder.
-98-
§20. ASSIGNMENT; PARTICIPATIONS; ETC.
§20.1. Conditions to Assignment by Lenders. Except as provided herein, each Lender
may assign to one or more Eligible Assignees all or a portion (in a minimum amount of $5,000,000)
of its interests, rights and obligations under this Agreement (including all or a portion of its
Commitment Percentage and Commitment and the same portion of the Loans at the time owing to it and
the Notes held by it); provided that (a) other than during the continuance of an Event of
Default, the Agent and the Borrower each shall have the right to approve any assignment to an
Eligible Assignee, which approval shall not be unreasonably withheld or delayed, (b) each Lender
shall have at all times an amount of its Commitment of not less than $5,000,000 unless otherwise
consented to by the Agent and (c) the parties to such assignment shall execute and deliver to the
Agent, for recording in
the Register (as hereinafter defined), an assignment and assumption, substantially in the form of
Exhibit D hereto (an “Assignment and Assumption”), together with any Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Assumption, which effective date shall be at least two (2)
Business Days after the execution thereof unless otherwise agreed or accepted by the Agent
(provided any assignee has assumed the obligation to fund any outstanding Libor Rate
Loans), (i) the assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Assumption, have the rights and obligations of a Lender hereunder and thereunder,
and (ii) the assigning Lender shall, to the extent provided in such assignment and upon payment to
the Agent of the registration fee referred to in §20.3, be released from its obligations under this
Agreement. Any such Assignment and Assumption shall run to the benefit of the Borrower and a copy
of any such Assignment and Assumption shall be delivered by the Assignor to the Borrower.
Notwithstanding the provisions of subclause (a) of the preceding paragraph, any Lender may,
without the consent of the Borrower, make an assignment otherwise permitted hereunder to (x)
another Lender, and (y) an Affiliate of such Lender, provided that such Affiliate is an
Eligible Assignee. In no event may any Lender assign or participate (under §20.5) all or any
portion of its Loans or Commitment to the Borrower or any of its Subsidiaries or Affiliates.
§20.2. Certain Representations and Warranties; Limitations; Covenants. By executing
and delivering an Assignment and Assumption, the parties to the assignment thereunder confirm to
and agree with each other and the other parties hereto as follows: (a) other than the
representation and warranty that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim, the assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto; (b) the assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower, any Subsidiary Guarantor, any Unsecured Revolver Subsidiary Guarantor or their
respective Subsidiaries or the Trust or any other Person primarily or secondarily liable in respect
of any of the Obligations, or the performance or observance by the Borrower, any Subsidiary
Guarantor, any Unsecured Revolver Subsidiary Guarantor or their respective Subsidiaries
-99-
or the
Trust or any other Person primarily or secondarily liable in respect of any of the Obligations of
any of their obligations under this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (c) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent financial statements
referred to in §7.4 and §8.4 and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment and Assumption; (d) such
assignee will,
independently and without reliance upon the assigning Lender, the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Agreement; (e) such assignee
represents and warrants that it is an Eligible Assignee; (f) such assignee appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto; (g) such assignee agrees
that it will perform in accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as a Lender; and (h) such assignee represents and
warrants that it is legally authorized to enter into such Assignment and Assumption.
§20.3. Register. The Agent shall maintain a copy of each Assignment and Assumption
delivered to it and a register or similar list (the “Register”) for the recordation of the names
and addresses of the Lenders and the Commitment Percentages of, and principal amount of the Term
Loan owing to, the Lenders from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement.
The Register shall be available for inspection by the Borrower and the Lenders at any reasonable
time and from time to time upon reasonable prior notice. Except in the case of an assignment by a
Lender to its Affiliate, upon each such recordation, the assigning Lender agrees to pay to the
Agent a registration fee in the sum of $2,500 and all legal fees and expenses incurred by the Agent
in connection with such assignment.
§20.4. New Notes. Upon its receipt of an Assignment and Assumption executed by the
parties to such assignment, together with each Note subject to such assignment, the Agent shall (a)
record the information contained therein in the Register, and (b) give prompt notice thereof to the
Borrower and the Lenders (other than the assigning Lender). Unless done simultaneously with the
Assignment and Assumption, within two (2) Business Days after receipt of such notice, the Borrower,
at its own expense and if requested in such notice, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee pursuant to such Assignment and Assumption
and, if the assigning Lender has retained some portion of its obligations hereunder, a new Note to
the order of the assigning Lender in an amount equal to the amount retained by it hereunder. Such
new Notes shall provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Assumption and shall otherwise be in
substantially the form of the assigned Notes. The surrendered Notes shall be canceled and returned
to the Borrower.
-100-
§20.5. Participations. Each Lender may sell participations to one or more lending
institutions or other entities in all or a portion of such Lender’s rights and obligations under
this Agreement and the other Loan Documents; provided that (a) each such participation
shall be in an amount of not less than $5,000,000, (b) any such sale or participation shall not
affect the rights and duties of the selling Lender hereunder to the Borrower and the Agent and the
Lender shall continue to exercise all approvals, disapprovals and other functions of a Lender, (c)
subject to §2.11 in the case of Permitted Amendments, the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers, amendments or modifications
of, or approvals under, the Loan Documents shall be the rights to approve waivers, amendments or
modifications that would reduce the principal of or the interest rate on the Term Loan (other than
a waiver of default interest and, if applicable, changes in calculation of any financial covenant
or related definitions that may indirectly affect pricing), extend the term or increase the amount
of the Commitment of such Lender as it relates to such participant in a manner not otherwise
permitted under the Loan Documents, reduce the amount of any fees to which such participant is
entitled or extend any regularly scheduled payment date for principal or interest in a manner not
otherwise permitted under the Loan Documents, and (d) no participant shall have the right to grant
further participations or assign its rights, obligations or interests under such participation to
other Persons without the prior written consent of the Agent, which consent shall not be
unreasonably withheld.
§20.6. Pledge by Lender. Notwithstanding any other provision of this Agreement, any
Lender at no cost to the Borrower may at any time pledge all or any portion of its interest and
rights under this Agreement (including all or any portion of its Notes) to any of the twelve
Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341. No such
pledge or the enforcement thereof shall release the pledgor Lender from its obligations hereunder
or under any of the other Loan Documents.
§20.7. No Assignment by Borrower. The Borrower shall not assign or transfer any of
its rights or obligations under any of the Loan Documents without prior Unanimous Lender Approval.
§20.8. [Reserved]
§20.9. [Reserved]
-101-
§21. NOTICES, ETC. (a) Except as otherwise expressly provided in this Agreement, all
notices and other communications made or required to be given pursuant to this Agreement or the
Notes 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 facsimile and
confirmed by delivery via courier or postal service, addressed as follows:
(i) if to the Borrower or the Trust, at 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000, attention Xxxxx Xxxx, Chief Financial Officer (facsimile: (000) 000-0000;
e-mail: Xxxxx.Xxxx@xxxxx-xxxxxxx.xxx), with a copy to Xxxxx Xxxxxxx, Esq., Xxxxx Lovells US LLP,
Columbia Square, 000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000 (facsimile: (000) 000-0000; e-mail:
xxxxx.xxxxxxx@xxxxxxxxxxxx.xxx) and to Xxxxxx Xxxxxx, Esq., Xxxxx Lovells US LLP, Columbia Square,
000 00xx Xxxxxx, XX, Xxxxxxxxxx, XX 00000 (facsimile: (000) 000-0000; e-mail:
xxxxxx.xxxxxx@xxxxxxxxxxxx.xxx), or to such other address for notice as the Borrower or the Trust
shall have last furnished in writing to the Agent;
(ii) if to the Agent, to KeyBank National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx, XX 00000, attention Xxxx X. Xxxxx (facsimile: (000) 000-0000; e-mail:
Xxxx_X_Xxxxx@XxxXxxx.xxx), with a copy to Xxxxx Xxx Xxxxxxxxxxx, KeyBank Institutional Real Estate,
0000 Xxxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx 00000 (facsimile: 000-000-0000; e-mail:
Xxxxxx_X_Xxxxxxxxxxxxxx@XxxXxxx.xxx), or such other address for notice as the Agent shall have last
furnished in writing to the Borrower, with a copy to Xxxxxx X. XxxXxxxxx, Esq., Goulston & Storrs,
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 (facsimile: (000)-000-0000; e-mail:
xxxxxxxxxx@xxxxxxxxxxxxxx.xxx), or at such other address for notice as the Agent shall last have
furnished in writing to the Person giving the notice; and
(iii) if to any Lender, at such Lender’s address set forth on Schedule 2 hereto, or
such other address for notice as such Lender shall have last furnished in writing to the Person
giving the notice (including, as appropriate, notices delivered solely to the Person designated by
such Lender for the delivery of notices that may contain material non-public information relating
to the Borrower).
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. Notices and other communications delivered through electronic
communications to the extent provided in subsection (b) below, shall be effective as provided in
such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Agent, provided that the
foregoing shall not apply to notices to any Lender if such Lender has notified the Agent that it is
incapable of receiving notices by electronic communication. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.
-102-
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an
electronic mail (“e-mail”) address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided that if such notice or
other communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent (and received, if the acknowledgment contemplated
above has been obtained) at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and identifying
the website address therefor.
(c) The Platform. THE PLATFORM (as defined in §8.10(c)) IS PROVIDED “AS IS” AND “AS
AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF
THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS
IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY
ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability
to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s or the
Agent’s transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses have resulted from the gross negligence, willful
misconduct or bad faith breach of this Agreement of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to the Borrower, any
Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as
opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrower and the Agent may change its
address, electronic mail address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, electronic mail address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower and the Agent. In addition, each Lender agrees
to notify the Agent from time to time to ensure that the Agent has on record (i) an effective
address, contact name, telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such
Public Lender to at all times have selected the “Private Side Information” or similar designation
on the content declaration
screen of the Platform in order to enable such Public Lender or its delegate, in accordance with
such Public Lender’s compliance procedures and applicable law, including United States Federal and
state securities laws, to make reference to materials with respect to the Borrower or its
Affiliates that are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to the Borrower or its
securities for purposes of United States Federal or state securities laws.
-103-
(e) Recording of Telephonic Communications. All telephonic notices to and other
telephonic communications with the Agent may be recorded by the Agent, and each of the parties
hereto hereby consents to such recording.
§22. FPLP AS AGENT FOR THE SUBSIDIARY GUARANTORS. The Borrower shall cause each
Subsidiary Guarantor and each Unsecured Revolver Subsidiary Guarantor to appoint FPLP as its agent
with respect to the receiving and giving of any notices, requests, instructions, reports,
certificates (including, without limitation, compliance certificates), schedules, revisions,
financial statements or any other written or oral communications hereunder or under any other Loan
Document. The Agent and each Lender is hereby entitled to rely on any communications given or
transmitted by FPLP as if such communication were given or transmitted by each and every Subsidiary
Guarantor and Unsecured Revolver Subsidiary Guarantor; provided however, that any
communication given or transmitted by any Subsidiary Guarantor or Unsecured Revolver Subsidiary
Guarantor shall be binding with respect to such Subsidiary Guarantor or such Unsecured Revolver
Subsidiary Guarantor. Any communication given or transmitted by the Agent or any Lender to FPLP
shall be deemed given and transmitted to each and every Subsidiary Guarantor and Unsecured Revolver
Subsidiary Xxxxxxxxx.
§00. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS AGREEMENT AND EACH OF
THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
THE BORROWER, FOR ITSELF AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY COURT IN THE
STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN NEW YORK AND CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER, A SUBSIDIARY GUARANTOR, AN UNSECURED REVOLVER SUBSIDIARY GUARANTOR, THE TRUST OR THEIR
SUBSIDIARIES BY MAIL AT THE ADDRESS SPECIFIED IN §21. THE BORROWER, FOR ITSELF
AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, HEREBY WAIVES ANY OBJECTION THAT ANY OF THEM MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
-104-
§24. HEADINGS. The captions in this Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
§25. COUNTERPARTS. This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one instrument. In
proving this Agreement it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
§26. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents executed in
connection herewith or therewith express the entire understanding of the parties with respect to
the transactions contemplated hereby. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated, except as provided in §28.
§27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. EXCEPT TO THE EXTENT EXPRESSLY
PROHIBITED BY LAW, THE BORROWER, THE SUBSIDIARY GUARANTORS, THE UNSECURED REVOLVER SUBSIDIARY
GUARANTORS, AND THEIR SUBSIDIARIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH
RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE
NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE
BORROWER, THE SUBSIDIARY GUARANTORS, THE UNSECURED REVOLVER SUBSIDIARY GUARANTORS AND THEIR
SUBSIDIARIES HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWER, THE SUBSIDIARY
GUARANTORS, THE UNSECURED REVOLVER SUBSIDIARY GUARANTORS AND THEIR SUBSIDIARIES (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 THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
-105-
§28. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly provided in
this Agreement, any consent or approval required or permitted by this Agreement may be given, and
any term of this Agreement or of any of the other Loan Documents may be amended, and the
performance or observance by the Borrower, a Subsidiary Guarantor, an Unsecured Revolver Subsidiary
Guarantor or the Trust or any of their respective Subsidiaries of any terms of this Agreement or
the other Loan Documents or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Majority Lenders.
Notwithstanding the foregoing, the approval of each Lender directly affected thereby shall be
required for any amendment, modification or waiver of this Agreement that (subject to §2.11 in the
case of Permitted Amendments):
(a) reduces or forgives any principal of any unpaid Loan or any interest
thereon (including any general waiver of interest “breakage” costs) or any
fees due to such Lender hereunder, or permits any prepayment not otherwise
permitted hereunder; or
(b) changes the unpaid principal amount of the Term Loan, reduces the
rate of interest applicable to the Term Loan, or reduces any fee payable to
the Agent or the Lenders hereunder; provided, however, that only the consent
of the Majority Lenders shall be necessary (i) to amend the definition of
“Default Rate” or to waive any obligation of the Borrower to pay interest at
the Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to
reduce the rate of interest on the Term Loan or to reduce any fee payable
hereunder; or
(c) except as permitted pursuant to the terms of §2.11, changes the date
fixed for any payment of principal of or interest on any portion of the Term
Loan (including, without limitation, any extension of the applicable Maturity
Date not contemplated herein) or any fees payable hereunder (including,
without limitation, the waiver of any monetary Event of Default); or
(d) changes the amount of such Lender’s Commitment (other than pursuant
to an assignment permitted under §20.1) or
increases the amount of the Total Commitment except as permitted
hereunder;
(e) And Unanimous Lender Approval shall be required for any amendment,
modification or waiver of this Agreement that:
-106-
(f) changes §14.4 in a manner that would alter the pro rata sharing of
payments required thereby; or
(g) modifies any provision herein or in any other Loan Document which by
the terms thereof expressly requires Unanimous Lender Approval; or
(h) changes any provision of this §28 or the definitions of “Majority
Lenders” or “Unanimous Lender Approval” or any other provision hereof
specifying the number or percentage of Lenders greater than the Majority
Lenders required to amend, waive or otherwise modify any rights hereunder or
make any determination or grant any consent hereunder; or
(i) releases the Guaranty of the Trust, any Subsidiary Guaranty or a
material portion of the Collateral, other than in accordance with the terms
hereof.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or
consent which by its terms requires Unanimous Lender Approval or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)
the Commitment of any Defaulting Lender may not be increased or extended without the consent of
such Lender and (y) any waiver, amendment or modification requiring Unanimous Lender Approval or
each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender.
The provisions in §8.2 through §8.12, §8.14 through §8.21, §0, §00.0 through §10.4 and §14.1
of this Agreement, including, in each case, any associated definitions in §1.1, contain essentially
the same provisions with respect to the Trust, the Borrower and their Subsidiaries as those
contained in §8.2 through §8.12, §8.14 through §8.21, §0, §00.0 through §10.4 and §14.1 of the
Unsecured Revolver Agreement and in the associated definitions in the Unsecured Revolver Agreement
(the “Revolver Provisions”). In the event that there is a proposal to modify, waive or restate, or
request a consent or approval with respect to, the Revolver Provisions (including any associated
definitions) of the Unsecured Revolver Agreement in writing (which may include a written waiver of
an existing actual or potential default or event of default that is intended to be eliminated by
such modification, restatement or waiver) (each of the foregoing, a “Proposed
Modification”), then (A) any Lender under this Agreement shall be deemed to have automatically
approved the Proposed Modification hereunder of any corresponding Revolver Provisions contained in
this Agreement for purposes of determining if the requisite approvals hereunder have been obtained
if (but only if) such Lender approved the Proposed Modification under the Unsecured Revolver in its
capacity as a “Lender” under the Unsecured Revolver Agreement or as an Affiliate of a Lender
-107-
that
approved the Proposed Modification under the Unsecured Revolver Agreement and (B) in the case that
the Lenders under this Agreement described in clause (A) above constitute the Majority Lenders
hereunder, then simultaneously with the agreement to or granting of such Proposed Modification
under the Unsecured Revolver Agreement, this Agreement shall be deemed modified or restated, or
such waiver, consent or approval granted, in a manner consistent with the Proposed Modifications
under the Unsecured Revolver Agreement, unless such modification, restatement, waiver, consent or
approval requires the consent of each Lender directly affected thereby under the terms of this §28.
If requested by the Borrower or the Agent, the Borrower, the Trust, the Agent and each approving
Lender (including any Lender deemed to have approved pursuant to this §28) shall execute and
deliver a written amendment to, restatement of, or waiver, consent or approval under, this
Agreement memorializing such modification, restatement, waiver, consent or approval. In addition,
the Borrower will be obligated to pay to the Agent, the Arranger and the Lenders (other than any
Lender that is also a “Lender” under the Unsecured Revolver Agreement or an Affiliate of a Lender
under the Unsecured Revolver Agreement that did not approve the Proposed Modification thereunder)
the same fee rate as the Borrower shall pay to the agent, arranger and lenders, respectively, under
the Unsecured Revolver Agreement in connection with such modification, restatement, waiver, consent
or approval.
No waiver shall extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the Agent or the
Lenders or any Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial to such right or any other rights of the Agent or the Lenders. No notice to or demand
upon the Borrower, a Subsidiary Guarantor or an Unsecured Revolver Subsidiary Guarantor shall
entitle the Borrower, such Subsidiary Guarantor or such Unsecured Revolver Subsidiary Guarantor to
other or further notice or demand in similar or other circumstances.
§29. SEVERABILITY. The provisions of this Agreement are severable, and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision,
or part thereof, in such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in any jurisdiction.
§30. INTEREST RATE LIMITATION. Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to the Term Loan, together with all fees, charges and
other amounts which are treated as interest on such Term Loan under applicable law (collectively,
the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted
for, charged, taken, received or reserved by the Lender holding such Term Loan in accordance with
applicable law, the rate of interest payable in respect of such Term Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Term Loan but were
not payable as a result of the operation of this §30 shall be cumulated and the interest and
Charges payable to such Lender in respect of other periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal
Funds Rate to the date of repayment, shall have been received by such Lender.
-108-
§31. USA PATRIOT ACT COMPLIANCE.
(a) The following notification is provided to the Borrower, the Subsidiary Guarantors and the
Unsecured Revolver Subsidiary Guarantors pursuant to Section 326 of the USA Patriot Act of 2001, 31
U.S.C. Section 5318 (the “USA Patriot Act”): §1.2
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the
funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each person or entity that
opens an account, including any deposit account, treasury management account, loan, other extension
of credit, or other financial services product. The Agent and/or the Lenders will ask for
Borrower’s name, taxpayer identification number, business address, and other information that will
allow the Agent and the Lenders to identify Borrower, the Subsidiary Guarantors and the Unsecured
Revolver Subsidiary Guarantors. The Agent and/or the Lenders may also ask to see Borrower’s, the
Subsidiary Guarantors’ or the Unsecured Revolver Subsidiary Guarantors’ legal organizational
documents or other identifying documents.
(b) In order for the Agent to comply with the USA Patriot Act, prior to any Lender or
participant that is organized under the laws of a jurisdiction outside of the United States of
America becoming a party hereto, the Agent may request, and such Lender or participant shall
provide to the Agent, its name, address, tax identification number and/or such other identification
information as shall be necessary for the Agent to comply with federal law.
(Remainder of page intentionally left blank)
-109-
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a sealed instrument
as of the date first set forth above.
| KEYBANK NATIONAL ASSOCIATION, as a Lender and as Administrative Agent |
||||||
| By: | ||||||
| Title: | ||||||
(Signatures continued on next page)
-110-
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP | ||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||
| By: | ||||||||
| Xxxxx X. Xxxx, Chief Financial Officer and Executive Vice President |
||||||||
EXHIBIT A — Form of Term Note
TERM NOTE
$50,000,000
|
Date: August 7, 2007 |
FOR VALUE RECEIVED, the undersigned First Potomac Realty Investment Limited Partnership, a
Delaware limited partnership and each other party who is or from time to time becomes a Borrower
under (and as defined in) the Secured Term Loan Agreement referred to (and defined) below
(hereinafter, together with their respective successors in title and assigns, collectively called
the “Borrower”), by this promissory note (hereinafter, called “this Note”), absolutely and
unconditionally, jointly and severally promises to pay to the order of KeyBank National
Association, individually in its capacity as a Lender under the Secured Term Loan Agreement
(hereinafter, together with its successors in title and assigns, called the “Bank”), the principal
sum of Fifty Million Dollars ($50,000,000) or so much thereof as shall remain outstanding, such
payment to be made as hereinafter provided, and to pay interest on the principal sum outstanding
hereunder from time to time from and after the date hereof until the said principal sum or the
unpaid portion thereof shall have become due and payable as hereinafter provided.
Capitalized terms used herein without definition shall have the meanings set forth in the
Secured Term Loan Agreement.
The unpaid principal (not at the time overdue) under this Note shall bear interest at the rate
or rates from time to time in effect under the Secured Term Loan Agreement. Accrued interest on
the unpaid principal under this Note shall be payable on the dates specified in the Secured Term
Loan Agreement.
On the Maturity Date there shall become absolutely due and payable by the Borrower hereunder,
and the Borrower hereby jointly and severally promises to pay to the Bank, the balance (if any) of
the principal hereof then remaining unpaid, all of the unpaid interest accrued hereon and all (if
any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby or
otherwise due under or in connection with the Secured Term Loan Agreement.
Each overdue amount (whether of principal, interest or otherwise) payable hereunder shall (to
the extent permitted by applicable law) bear interest at the rates and on the terms provided in the
Secured Term Loan Agreement. The unpaid interest accrued on each overdue amount in accordance with
the foregoing terms of this paragraph shall become and be absolutely due and payable by the
Borrower to Bank on demand by the Agent. Interest on each overdue amount will continue to accrue
as provided by the foregoing terms of this paragraph, and will (to the extent permitted by
applicable law) be compounded daily until the obligations of the Borrower in respect of the payment
of such overdue amount shall be discharged (whether before or after judgment).
Exhibit A, Page 1
Each payment of principal, interest or other sum payable on or in respect of this Note or the
indebtedness evidenced hereby shall be made by the Borrower directly to the Agent in Dollars, for
the account of the Bank, at the Agent’s Head Office, on the due date of such payment, and in
immediately available and freely transferable funds. All payments on or in respect of this Note or
the indebtedness evidenced hereby shall be made without set-off or counterclaim and free and clear
of and without any deductions, withholdings, restrictions or conditions of any nature.
This Note is made and delivered by the Borrower to the Bank pursuant to that certain Secured
Term Loan Agreement dated as of August 7, 2007 among (i) the Borrower, (ii) the Lenders party
thereto from time to time (including the Bank) and (iii) the Agent (hereinafter, as originally
executed and as may be amended, varied, supplemented, and/or restated from time to time, called the
“Secured Term Loan Agreement”). This Note evidences the obligations of the Borrower (a) to repay
the principal amount of the Term Loan; (b) to pay interest, as herein provided, on the principal
amount hereof remaining unpaid from time to time; and (c) to pay other amounts (including all
Obligations) which may become due and payable hereunder or thereunder. The payment of the
principal of and the interest on this Note and the payment of all Obligations have been guaranteed.
Reference is hereby made to the Secured Term Loan Agreement (including the Schedules and Exhibits
annexed thereto and the Trust Guaranty) for a complete statement of the terms thereof.
The Borrower has the right to prepay the unpaid principal of this Note in full or in part upon
the terms contained in the Secured Term Loan Agreement. The Borrower has an obligation to prepay
principal of this Note from time to time if and to the extent required under, and upon the terms
contained in, the Secured Term Loan Agreement. Any partial payment of the indebtedness evidenced
by this Note shall be applied in accordance with the terms of the Secured Term Loan Agreement and
shall not be permitted to be reborrowed.
Pursuant to and upon the terms contained in Section 14 of the Secured Term Loan Agreement, the
entire unpaid principal of this Note, all of the interest accrued on the unpaid principal of this
Note and all (if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby may be declared to be immediately due and payable, whereupon the entire unpaid
principal of this Note, all of the interest accrued on the unpaid principal of this Note and all
(if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby
shall (if not already due and payable) forthwith become and be due and payable to the Bank without
presentment, demand, protest or any other formalities of any kind, all of which are hereby
expressly and irrevocably waived by the Borrower.
All computations of interest payable as provided in this Note shall be made by the Agent on
the basis set forth therefor in the Secured Term Loan Agreement. The interest rate in effect from
time to time shall be determined in accordance with the terms of the Secured Term Loan Agreement.
Exhibit A, Page 2
Should all or any part of the indebtedness represented by this Note be collected by action at
law, or in bankruptcy, insolvency, receivership or other court proceedings, or should this Note be
placed in the hands of attorneys for collection after default, the Borrower hereby promises to pay
to the holder of this Note, upon demand by the holder hereof at any time, in addition to principal,
interest and all (if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby, all court costs and attorneys’ fees and all other collection charges and expenses
reasonably incurred or sustained by the holder of this Note.
The Borrower hereby irrevocably waives notice of acceptance, presentment, notice of
nonpayment, protest, notice of protest, suit and all other conditions precedent in connection with
the delivery, acceptance, collection and/or enforcement of this Note. The Borrower hereby
absolutely and irrevocably consents and submits to the jurisdiction of the courts of the State of
New York and of any federal court located in the State of New York in connection with any actions
or proceedings brought against the Borrower by the holder hereof arising out of or relating to this
Note. This Note may be executed in any number of counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original, and all of which
together shall constitute one instrument.
This Note is intended to take effect as a sealed instrument. This Note and the obligations of
the Borrower hereunder shall be governed by and interpreted and determined in accordance with the
laws of the State of New York.
Each Borrower shall be jointly and severally liable for the full amount owing under this Note.
[Remainder of page intentionally left blank]
Exhibit A, Page 3
IN WITNESS WHEREOF, this TERM NOTE has been duly executed by the undersigned on the day and in
the year first above written.
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP | ||||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||||
| By: | ||||||||||
Signature Page to Term Note
EXHIBIT B — Form of Completed Loan Request
COMPLETED LOAN REQUEST
This Loan Request is made pursuant to §2.4 of the Secured Term Loan Agreement dated as of
August 7, 2007 (as the same may now or hereafter be amended from time to time, the “Credit
Agreement”) among First Potomac Realty Investment Limited Partnership, KeyBank National
Association, individually and as Administrative Agent, the other Lenders from time to time party
thereto and KeyBanc Capital Markets Inc., as Sole Lead Arranger and Sole Book Manager. Unless
otherwise defined herein, the capitalized terms used in this Loan Request have the meanings
described in the Credit Agreement.
| 1. | The Borrower hereby requests a Term Loan in the principal amount of $_____. | |
| 2. | The Type of Loan being requested in this Loan Request is: | |
| _____ Base Rate Loan | ||
| _____ Libor Rate Loan | ||
| 3. | The Interest Period requested for the Loan requested in this Loan Request is: | |
| _____ through _____ (must be for 1, 2 or 3 months for Libor Loans). |
The Borrower hereby certifies to Lender that, both before and after giving effect to the
making or issuance of the requested Term Loan, (i) no Default or Event of Default under the Credit
Agreement or any other Loan Document exists or will exist, and (ii) the Borrower is and will remain
in compliance with the covenants specified in §10 of the Credit Agreement. The calculations used
to evidence such compliance are attached hereto as Exhibit A.
Exhibit B, Page 1
WITNESS my hand this
_____
day of
_____, 20
_____.
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, for itself and as agent for each other Borrower | ||||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||||
| By: | ||||||||||
EXHIBIT B-1
COMPLETED CONVERSION REQUEST
This Conversion Request is made pursuant to §2.5 of the Secured Term Loan Agreement dated as
of August 7, 2007 (as the same may now or hereafter be amended from time to time, the “Loan
Agreement”) among First Potomac Realty Investment Limited Partnership, KeyBank National
Association, individually and as Administrative Agent, the other Lenders from time to time party
thereto and KeyBanc Capital Markets Inc., as Sole Lead Arranger and Sole Book Manager. Unless
otherwise defined herein, the capitalized terms used in this Conversion Request have the meanings
described in the Loan Agreement.
Each Conversion Request submitted by the Borrower shall be a request for a single Loan.
| 1. | The Borrower hereby requests (check each applicable item): | |
| _____ Conversion of Existing Term Loan [_____] Loan ($_____) | ||
(Current Interest Period ending on
_____, 20_____) |
||
| _____ Continuation of Existing Term Loan [_____] Loan ($_____) | ||
(Current Interest Period ending on
_____, 20_____) |
||
| 2. | The Borrower is requesting to convert an outstanding: | |
| _____ Base Rate Loan | ||
| _____ Libor Rate Loan | ||
| to a: | ||
| _____ Base Rate Loan | ||
| _____ Libor Rate Loan | ||
| 3. | The aggregate principal amount of the Loan (whether by way of a continuation or conversion) in this Conversion Request is: | |
| $_____ | ||
| 4. | The proposed Drawdown Date of the Loan in this Conversion Request is: | |
| _____, 20_____ |
Exhibit B-1, Page 1
| 5. | The Interest Period requested for the Loan requested in this Loan Request (if any) is: | |
| _____ through _____ (must be for 1, 2 or 3 months for Libor Loans). |
The Borrower hereby certifies to Lender that, both before and after giving effect to the
requested conversion, no Default or Event of Default under the Loan Agreement or any other Loan
Document exists or will exist.
Exhibit B-1, Page 2
WITNESS my hand this
_____
day of
_____, 20_.
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, for itself and as agent for each other Borrower | ||||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||||
| By: | ||||||||||
Signature Page to Conversion Request
EXHIBIT C — Form of Compliance Certificate
COMPLIANCE CERTIFICATE
Reference is hereby made to that certain Secured Term Loan Agreement dated as of August 7,
2007, among First Potomac Realty Investment Limited Partnership (the “Borrower” or “FPLP”), First
Potomac Realty Trust (“Guarantor”), the Subsidiary Guarantors (as defined therein), KeyBank
National Association, individually and as Administrative Agent, and certain other parties (as the
same may now or hereafter be amended from time to time, the “Credit Agreement”). Unless otherwise
defined herein, the terms used in this Compliance Certificate and Schedule 1 hereto have
the meanings ascribed to such terms in the Credit Agreement.
This Compliance Certificate is submitted pursuant to the following sections of the Credit
Agreement:
| • | Section 8.4(e) (accompanying financial statements) | ||
| • | Section 8.13(a) (in connection with removal of Eligible Borrowing Base Property) | ||
| • | Section 8.13(a) (in connection with the addition of Real Estate Asset to Borrowing Base Pool) | ||
| • | Section 9.2(a) (in connection with granting a mortgage on an Eligible Borrowing Base Property or Real Estate Asset) | ||
| • | Section 9.4(b) (in connection with Sales or Indebtedness Liens) | ||
| • | Section 14.1 (in connection with default cure) |
The undersigned HEREBY CERTIFIES THAT:
I am the chief financial officer or accounting officer of the Borrower, Guarantor and the
Subsidiary Guarantors, and I am authorized by each such entity to execute and deliver this
Compliance Certificate on its behalf.
All of the real property comprising “Eligible Borrowing Base Properties” within the meaning of
Section 1.1 of the Credit Agreement is listed on Annex 1 to Schedule 1 attached hereto.
The status of each property listed on Annex 1 has been reviewed by me and/or by employees or agents
under my immediate supervision. Based upon such review, I hereby certify that each property listed
on Annex 1:
| (a) | is a Permitted Property; | ||
| (b) | is not the subject of a Disqualifying Environmental Event or Disqualifying Structural Event; |
Exhibit C, Page 1
| (c) | is owned in fee simple by the Borrower or a Subsidiary Guarantor; | ||
| (d) | is not subject to any Liens (other than Permitted Liens) or any material title, survey or similar defect; | ||
| (e) | if owned by any Subsidiary Guarantor, the Equity Interests of such Subsidiary Guarantor are not subject to any Lien in favor of any Person other than Agent and Lenders; and | ||
| (f) | is not subject to any material default or event of default under any Property Level Loan Documents. |
[Since the date of the last Compliance Certificate delivered to Agent pursuant to §8.4(e) of
the Credit Agreement, the Property Level Debt formerly secured by the following Eligible Borrowing
Base [Property] [Properties] has been paid in full and has not been refinanced with mortgage
Indebtedness:
_____.]
Accompanying this Compliance Certificate are consolidated financial statements of the
Guarantor, the Borrower and their respective Subsidiaries for the fiscal [year] [quarter] ended
_____, 20_____
(the “Financial Statements”) prepared in accordance with GAAP (subject, in the
case of financial statements relating to the first three fiscal quarters, to normal year-end
adjustments and to the absence of footnotes). The Financial Statements present fairly the
financial position of the Borrower, Guarantor, and the respective Subsidiary Guarantors, as of the
date thereof and the results of operations of the Borrower, Guarantor, and the respective
Subsidiary Guarantors for the period covered thereby. The foregoing is also delivered herewith for
FPLP on a consolidated basis.
Schedule 1 hereto sets forth data and computations evidencing compliance with the
covenants contained in Section 10 of the Credit Agreement and certain other calculations (the
“Financial Covenants; Covenants Regarding Eligible Borrowing Base Properties”) as of the relevant
date of determination (the “Determination Date”), all of which data and computations are true,
complete and correct.
The activities of the Borrower, Guarantor, and the respective Subsidiary Guarantors during the
period covered by the data and computations set forth in Schedule 1 have been reviewed by
me and/or by employees or agents under my immediate supervision. Based upon such review, during
such period, and as of the date of this Certificate, no Default or Event of Default has occurred
and is continuing, except as specifically disclosed herein or as has been previously disclosed in
writing to the Administrative Agent.
[remainder of page intentionally left blank]
Exhibit C, Page 2
IN WITNESS WHEREOF, the undersigned has affixed his signature below this
_____
day of
_____, 20_____.
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, for itself and as agent for each other Borrower | ||||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||||
| By: | ||||||||||
Signature Page to Compliance Certificate
SCHEDULE 1
[Attached]
EXHIBIT D — Form of Assignment and Assumption
ASSIGNMENT AND ASSUMPTION AGREEMENT
Dated
_____, 20_____
Reference is made to the Secured Term Loan Agreement dated as of August 7, 2007 (as the same
may now or hereafter be amended from time to time, the “Credit Agreement”) among First Potomac
Realty Investment Limited Partnership (“FPLP”), KeyBank National Association, individually and as
Administrative Agent, the other Lenders from time to time party thereto and KeyBanc Capital Markets
Inc., as Sole Lead Arranger and Sole Book Manager. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Agreement.
_____
(the “Assignor”) and
_____
(the “Assignee”) agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, a
_____% interest in and to all of the Assignor’s rights and
obligations under the Agreement as of the Effective Date (as hereinafter defined).
2. The Assignor (i) represents that as of the date hereof, its Commitment Percentage (without
giving effect to assignments thereof which have not yet become effective) is
_____%, the outstanding
balance of its Loans (unreduced by any assignments thereof which have not yet become effective) is
$_____; (ii) makes no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with the Agreement, the
other Loan Documents or any other instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Agreement,
the other Loan Documents or any other instrument or document furnished pursuant thereto, other than
that it is the legal and beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim created by it; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Trust, the Borrower or any of their respective Subsidiaries (as defined in the Agreement) or
any other person which may be primarily or secondarily liable in respect of any of the Obligations
under the Agreement or the other Loan Documents or any other instrument or document delivered or
executed pursuant thereto.
Exhibit D, Page 1
3. The Assignee (i) represents and warrants that it is legally authorized to enter into this
Assignment and Assumption; (ii) confirms that it has received a copy of the Agreement, together
with copies of the most recent financial statements delivered pursuant to §§7.4 and 8.4 thereof, if
any, and such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption; (iii) agrees that it will,
independently and without reliance
upon the Assignor, any other Lender or the Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under the Agreement; (iv) confirms that it is an Eligible Assignee; (v) appoints and
authorizes the Agent, and each other Lender who may from time to time be designated as an agent in
a limited specific capacity pursuant to an amendment to the Agreement, to take such action as agent
(and with respect to such other Lenders, in such limited capacity as may be designated) on its
behalf and to exercise such powers as are reasonably incidental thereto pursuant to the terms of
the Agreement and the other Loan Documents; (vi) agrees that it will perform all the obligations
which by the terms of the Agreement are required to be performed by it as a Lender in accordance
with the terms of the Agreement; and (vii) if it is a Foreign Lender, attached to this Assignment
and Assumption is any documentation required by it pursuant to the terms of the Agreement duly
executed and completed by such Assignee. The Assignor represents and warrants that it is legally
authorized to enter into this Assignment and Assumption.
4. The effective date for this Assignment and Assumption shall be
_____, 20_____
(the
“Effective Date”). Following the execution of this Assignment and Assumption, it will be delivered
to the Agent for recording in the Register by the Agent.
5. Upon such acceptance and recording, from and after the Effective Date, and, in accordance
with §20.1 of the Agreement, the Agent and the Borrower shall have approved the herein assignment
pursuant to §20.1 of the Agreement, and the Assignor shall, with respect to that portion of its
interest under the Agreement assigned hereunder, relinquish its rights and be released from its
obligations under the Agreement accruing from and after the Effective Date.
6. Upon such acceptance and recording, from and after the Effective Date, the Agent shall make
all payments in respect of the interest assigned hereby (including payments of principal, interest,
fees and other amounts) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to the Effective Date by the Agent or with respect to the
making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ASSUMPTION 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.
[Remainder of page intentionally blank]
Exhibit D, Page 2
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned has caused this
Assignment and Assumption to be executed on its behalf by its officer thereunto duly authorized, as
of the date first above written.
| [INSERT ASSIGNOR] | ||||||||
| By: | ||||||||
| Title: | ||||||||
| [INSERT ASSIGNEE] | ||||||||
| By: | ||||||||
| Title: | ||||||||
Signature Page to Assignment and Assumption
CONSENTED TO AS OF
_____, 20_____:
_____, 20_____:
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP | ||||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||||
| By: | ||||||||||
| KEYBANK NATIONAL ASSOCIATION, as Administrative Agent |
||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Signature Page to Assignment and Assumption
EXHIBIT E — Form of Joinder Agreement
JOINDER AGREEMENT
[____________, 20___]
Reference is made to the Secured Term Loan Agreement dated as of August 7, 2007 (as the same
may now or hereafter be amended from time to time, the “Loan Agreement”) among First Potomac Realty
Investment Limited Partnership, a Delaware limited partnership (“FPLP”), KeyBank National
Association, individually and as Administrative Agent, the other Lenders from time to time party
thereto and KeyBanc Capital Markets Inc., as Sole Lead Arranger and Sole Book Manager, and to the
Subsidiary Guaranty dated as of August 7, 2007 and executed in connection with the execution of the
Loan Agreement (hereinafter, the “Subsidiary Guaranty”). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such in the Loan Agreement.
In consideration of and as an inducement to the inclusion by the Lenders of the Real Estate
Asset(s) identified on Exhibit A hereto as an Eligible Borrowing Base Property pursuant to
the Loan Agreement, [_____] (each an “Additional Guarantor” and together the
“Additional Guarantors”), each of which is a Wholly-owned Subsidiary of FPLP, each hereby
acknowledges and agrees to the terms and conditions of the Subsidiary Guaranty and the other Loan
Documents referenced therein, joins in the Subsidiary Guaranty as a Guarantor (as defined in the
Subsidiary Guaranty) with the same force and effect as if each Additional Guarantor was originally
a Guarantor under, and an original signatory to, the Subsidiary Guaranty.
Each Additional Guarantor further agrees that its liability hereunder is direct and primary
and may be enforced by the Lenders and the Agent before or after proceeding against any other
Subsidiary Guarantor.
Prior to this Joinder Agreement becoming effective and the Real Estate Asset(s) identified in
Exhibit A hereto becoming an Eligible Borrowing Base Property pursuant to the Loan
Agreement, the Additional Guarantors shall have delivered to the Agent the documents and other
items required to be delivered pursuant to Section 8.13(a), 12.2, 12.3, 12.4 and 12.8 of the Loan
Agreement, in each case in form and substance satisfactory to the Agent, along with such other
documents, certificates and instruments reasonably required by the Agent, including, if necessary,
updates to the schedules to the Loan Agreement satisfactory to the Agent. Without in any way
limiting the other rights of the Agent under the Loan Agreement, but subject to Section 8.10(a) of
the Loan Agreement, the Additional Guarantors agree that the Agent shall have the right to visit
and inspect such Eligible Borrowing Base Property at the Additional Guarantors’ sole cost and
expense.
Exhibit E, Page 1
Each of the undersigned represents and warrants to the Agent and the Lenders that it has the
complete right, power and authority to execute and deliver this Joinder Agreement and to perform
all of the obligations hereunder and under the Subsidiary Guaranty and the other Loan Documents to
which any Subsidiary Guarantor is a party. This Joinder Agreement shall be binding upon the
undersigned and its successors and assigns and shall inure to the benefit of the Lenders, the Agent
and their respective successors and assigns.
WITHOUT LIMITING SECTION 23 OF THE LOAN AGREEMENT, THIS JOINDER AGREEMENT IS A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
EACH ADDITIONAL GUARANTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS,
INCLUDING, WITHOUT LIMITATION, THE SUBSIDIARY GUARANTY AND THIS JOINDER AGREEMENT, MAY BE BROUGHT
IN ANY COURT IN THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN NEW YORK AND CONSENTS TO
THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON THE BORROWER, THE TRUST OR ANY OF THEIR SUBSIDIARIES AT THE ADDRESS SPECIFIED IN §21 OF
THE LOAN AGREEMENT. EACH ADDITIONAL GUARANTOR HEREBY WAIVES ANY OBJECTION 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.
This Joinder Agreement may be executed in counterparts, each of which when executed and
delivered shall be an original but all of which together shall constitute one instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Exhibit E, Page 2
Executed as a sealed instrument as of the
_____
day of
_____.
| [ ], a [ ], |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Joinder Agreement
| Acknowledged and Agreed: | ||||
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP | ||||
By:
|
First Potomac Realty Trust, its sole general partner |
|||
By: |
||||
Title:
|
||||
| Acknowledged: | ||||
| KEYBANK NATIONAL ASSOCIATION, as Administrative Agent under the Loan Agreement |
||||
By: |
||||
Name:
|
||||
Title:
|
||||
Signature Page to Joinder Agreement
Exhibit A to Joinder Agreement
[Eligible Borrowing Base Property]
Exhibit A to Joinder Agreement
EXHIBIT F — Form of Additional Subsidiary Guaranty Joinder Agreement
JOINDER AGREEMENT
(Additional Subsidiary Guaranty)
(Additional Subsidiary Guaranty)
Reference is made to the Secured Term Loan Agreement dated as of August 7, 2007 (as the same may
now or hereafter be amended from time to time, the “Loan Agreement”) among First Potomac Realty
Investment Limited Partnership, a Delaware limited partnership (“FPLP” or the “Borrower”), KeyBank
National Association, individually and as Administrative Agent, the other Lenders from time to time
party thereto and KeyBanc Capital Markets Inc., as Sole Lead Arranger and Sole Book Manager, and to
the Additional Subsidiary Guaranty dated as of September [_____], 2011 and executed in connection
with the execution of Amendment No. 5. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Loan Agreement.
WHEREAS, each entity listed on Exhibit A attached hereto (each an “Additional
Guarantor” and together the “Additional Guarantors”) is a [Wholly-owned] Subsidiary of the
Borrower, and the Borrower and the Additional Guarantors are members of a group of related
companies, the success of any one of which is dependent in part on the success of other members of
such group;
WHEREAS, each Additional Guarantor receives substantial benefit from the extension of credit
to the Borrower by the Lenders pursuant to the Loan Agreement and from Amendment No. 5; and
WHEREAS, the Lenders and the Agent were unwilling to enter into Amendment No. 5 unless the
Borrower agreed to cause certain Subsidiaries to become a guarantor as set forth in Section 8.21 of
the Loan Agreement;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, each Additional
Guarantor hereby acknowledges and agrees to the terms and conditions of the Additional Subsidiary
Guaranty and the other Loan Documents referenced therein, joins in the Additional Subsidiary
Guaranty as a Guarantor (as defined in the Additional Subsidiary Guaranty) with the same force and
effect as if each Additional Guarantor was originally a Guarantor under, and an original signatory
to, the Additional Subsidiary Guaranty.
Each Additional Guarantor further agrees that its liability hereunder is direct and primary
and may be enforced by the Lenders and the Agent before or after proceeding against any other
Subsidiary Guarantor.
Exhibit F, Page 1
Each of the undersigned represents and warrants to the Agent and the Lenders that it has the
complete right, power and authority to execute and deliver this Joinder Agreement and to perform
all of the obligations hereunder and under the Additional
Subsidiary Guaranty and the other Loan Documents to which any Unsecured Revolver Guarantor is a
party. This Joinder Agreement shall be binding upon the undersigned and its successors and assigns
and shall inure to the benefit of the Lenders, the Agent and their respective successors and
assigns.
WITHOUT LIMITING SECTION 23 OF THE LOAN AGREEMENT, THIS JOINDER AGREEMENT IS A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
EACH ADDITIONAL GUARANTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS,
INCLUDING, WITHOUT LIMITATION, THE ADDITIONAL SUBSIDIARY GUARANTY AND THIS JOINDER AGREEMENT, MAY
BE BROUGHT IN ANY COURT IN THE STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN NEW YORK AND
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE BORROWER, THE TRUST OR ANY OF THEIR SUBSIDIARIES AT THE ADDRESS SPECIFIED
IN §21 OF THE LOAN AGREEMENT. EACH ADDITIONAL GUARANTOR HEREBY WAIVES ANY OBJECTION 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.
This Joinder Agreement may be executed in counterparts, each of which when executed and
delivered shall be an original but all of which together shall constitute one instrument.
[Remainder of page intentionally blank]
Exhibit F, Page 2
Executed as a sealed instrument as of the date first written above
| [____________], a [____________] | ||||
| By: | [____________] | |||
| [____________] | ||||
[Signatures continued on next page]
Signature Page to Joinder Agreement
Acknowledged and Agreed:
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, for itself and as agent for each Unsecured Revolver Subsidiary Guarantor | ||||||
| By: | First Potomac Realty Trust, its Sole General Partner | |||||
| By: | ||||||
| Title: | ||||||
[Signatures continued on next page]
Signature Page to Joinder Agreement
| Acknowledged: | ||||
| KEYBANK NATIONAL ASSOCIATION, as Administrative Agent under the Loan Agreement |
||||
By: |
||||
| Title: | ||||
Signature Page to Joinder Agreement
EXHIBIT A
Additional Guarantors
2
Schedule 1
Subsidiary Guarantors
| 1) | FP Airpark AB, LLC | |
| 2) | Crossways Associates LLC | |
| 3) | Xxxxxxxx Way Investments LLC | |
| 4) | FP Chesterfield ABEF, LLC | |
| 5) | FP Chesterfield CDGH, LLC | |
| 6) | FPR Holdings Limited Partnership | |
| 7) | Gateway Manassas I, LLC | |
| 8) | FP Hanover C, LLC | |
| 9) | FP Hanover D, LLC | |
| 10) | Linden I LLC | |
| 11) | XX Xxxx, LLC | |
| 12) | Newington Terminal Associates LLC | |
| 13) | Newington Terminal LLC | |
| 14) | Landover Xxxxxx Xxxxx, LLC | |
| 15) | FP Prosperity, LLC | |
| 16) | Plaza 500, LLC | |
| 17) | Norfolk First LLC | |
| 18) | GTC II First LLC | |
| 19) | Greenbrier Holding Associates LLC | |
| 20) | Greenbrier/Norfolk Investment LLC | |
| 21) | Greenbrier/Norfolk Holding LLC | |
| 22) | Xxxxxx First LLC | |
| 23) | First Xxxxxx LLC | |
| 24) | Columbia Holdings Associates LLC | |
| 25) | Xxxxxx/Xxxxxxx Investment LLC | |
| 26) | Xxxxxx/Xxxxxxx Holding LLC | |
| 27) | Xxxxxxx First LLC | |
| 28) | First Xxxxxxx LLC | |
| 29) | XX Xxx Xxxxx, LLC | |
| 30) | ACP East, LLC | |
| 31) | FP Gateway Center, LLC | |
| 32) | Xxxxx Xxxx Business Center, L.L.C. |
Schedule 1A
Borrowing Base Pool
| Ownership Entity | Building Name | Address | City | State | ||||
FP Airpark AB, LLC |
Airpark Business Center A | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | ||||
| Airpark Business Center B | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | |||||
Crossways Associates LLC |
Crossways Commerce Center I | 0000 Xxxxxxxxx Xxxxxxxxx | Xxxxxxxxxx | XX | ||||
| Crossways Commerce Center II | 0000 Xxxxxxxx Xxx | Xxxxxxxxxx | XX | |||||
| 0000 Xxxxxxxxx Xxxxxxxxx | Xxxxxxxxxx | XX | ||||||
| Coast Guard Building | 0000 Xxxxxxxx Xxx | Xxxxxxxxxx | XX | |||||
FP Chesterfield ABEF, LLC |
Chesterfield Business Center A | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | ||||
| Chesterfield Business Center B | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | |||||
| Chesterfield Business Center E | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | |||||
| Chesterfield Business Center F | 0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | |||||
FP Chesterfield CDGH, LLC |
Chesterfield Business Center C | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | ||||
| Chesterfield Business Center D | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | |||||
| Chesterfield Business Center G | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | |||||
| Chesterfield Business Center H | 0000-0000 Xxxxxxxxx Xxxx | Xxxxxxxxxxxx | XX | |||||
Gateway Manassas I, LLC |
0000 Xxxxxxx Xxxxx | 0000 Xxxxxxx Xxxxx | Xxxxxxxx | XX | ||||
FP Hanover C, LLC |
Hanover Business Center C | 000 Xxxxxxx Xxxx | Xxxxxxx | XX | ||||
FP Hanover D, LLC |
Hanover Business Center D | 000 Xxxxxxx Xxxx | Xxxxxxx | XX | ||||
Linden I, LLC |
0000 Xxxxxxxxxx Xxxxx | 0000 Xxxxxxxxxx Xxxxx | Xxxxxxxx | XX | ||||
| 0000 Xxxxxxxxxx Xxxxx | 0000 Xxxxxxxxxx Xxxxx | Xxxxxxxx | XX | |||||
XX Xxxx, LLC |
000 X. Xxxx Xxxxx | 400 X. Xxxx Drive | Rockville | MD | ||||
| 7300 Xxxxxxx Place | 0000 Xxxxxxx Xxxxx | Xxxxxxxxx | XX | |||||
| 7301 Xxxxxxx Place | 0000 Xxxxxxx Xxxxx | Xxxxxxxxx | XX | |||||
| 7362 Xxxxxxx Place | 0000 Xxxxxxx Xxxxx | Xxxxxxxxx | XX | |||||
Newington Terminal Associates
LLC |
Xxxxxxxxx, Xxxx 0 | 0000 Xxxxxxxx Xxxx | Xxxxxxxxx | XX | ||||
| Newington, Xxxx 0 | 0000 Xxxxxxxx Xxxx | Xxxxxxxxx | XX | |||||
| Xxxxxxxxx, Xxxx 3 | 0000 Xxxxxxxx Xxxx | Xxxxxxxxx | XX | |||||
| Newington, Xxxx 0 | 0000 Xxxxxxxx Xxxx | Xxxxxxxxx | XX | |||||
| Xxxxxxxxx, Xxxx 5 | 0000 Xxxxxxxx Xxxx | Xxxxxxxxx | XX | |||||
| Newington, Xxxx 0 | 0000 Xxxxxxxx Xxxx | Xxxxxxxxx | XX | |||||
| Xxxxxxxxx, Xxxx 7 | 0000 Xxxxxxxx Xxxx | Xxxxxxxxx | XX | |||||
Landover Xxxxxx Xxxxx, LLC |
00000 Xxxxxxxx Xxxxx | 00000 Xxxxxxxx Xxxxx | Xxxxxx Xxxxx | XX | ||||
| 00000 Cronhill Drive | 00000 Xxxxxxxx Xxxxx | Xxxxxx Xxxxx | XX | |||||
| 00000 Cronhill Drive | 00000 Xxxxxxxx Xxxxx | Xxxxxx Xxxxx | XX | |||||
| 00000 Cronhill Drive | 00000 Xxxxxxxx Xxxxx | Xxxxxx Xxxxx | XX | |||||
FP Prosperity, LLC |
Prosperity | 0000-0000 Xxxxxxxxxx Xxxxxx | Xxxxxxxxxx | XX | ||||
ACP East, LLC |
0000-0000 Xxxxxxxx Xxxx Xxxxx | 0000-0000 Xxxxxxxx Xxxx Xxxxx | Xxxxxxxxx | XX | ||||
| 0000-0000 Commerce Park Drive | 0000-0000 Xxxxxxxx Xxxx Xxxxx | Xxxxxxxxx | XX | |||||
Plaza 500, LLC |
Plaza 500 | 0000 Xxxxxx Xxxx | Xxxxxxxxxx • | VA |
| Ownership Entity | Building Name | Address | City | State | ||||
XX Xxx Xxxxx, LLC |
000 Xxxxxxxx Xxxxx | 000 Xxxxxxxx Xxxxx 000 Xxxxxxx Xxxxxxx 000 Xxxxxxx Xxxxxxx 000 Xxxxxxx |
Xxxxxxx | VA | ||||
| 000 Xxxxxxx Xxxxxxx | Xxxxxxx | XX | ||||||
| 000 Xxxxxxx Xxxxxxx | Xxxxxxx | XX | ||||||
| 000 Xxxxxxx Xxxxxxx | Xxxxxxx | XX | ||||||
| 000 Xxxxxxx Xxxxxxx | Xxxxxxx | XX | ||||||
GTC II First LLC |
Greenbrier Technology Center II | 000 Xxxxxxxxxx Xxxxxx | Xxxxxxxxxx | XX | ||||
Norfolk First LLC |
Norfolk Business Center | 0000 Xxxxxx Xxxxxx | Xxxxxxx | XX | ||||
Xxxxxx First LLC |
0000 Xxxxxx Xxxx | 0000 Xxxxxx Xxxx | Xxxxxxxx | MD | ||||
| 0000 Xxxxxx Xxxx | 0000 Xxxxxx Xxxx | Xxxxxxxx | MD | |||||
| 0000 Xxxxxx Xxxx | 0000 Xxxxxx Xxxx | Xxxxxxxx | MD | |||||
| 0000 Xxxxxx Xxxx | 0000 Xxxxxx Xxxx | Xxxxxxxx | XX | |||||
Xxxxxxx First LLC |
0000 Xxxxxxx Xxxxx Xxxx | 0000 Xxxxxxx Xxxxx Xxxx | Xxxxxxxx | MD | ||||
| 0000 Xxxxxxx Xxxxx Xxxx | 0000 Xxxxxxx Xxxxx Xxxx | Xxxxxxxx | MD | |||||
| 0000 Xxxxxxx Xxxxx Xxxx | 0000 Xxxxxxx Xxxxx Xxxx | Xxxxxxxx | MD | |||||
| 0000 Xxxxxxx Xxxxx Xxxx | 0000 Xxxxxxx Xxxxx Xxxx | Xxxxxxxx | MD | |||||
Xxxxx Xxxx Business Center,
L.L.C. |
Xxxxx Xxxx | 7100 Xxxxxxxx Xxxxx Road | Glenn Dale | MD | ||||
FP Gateway Center, LLC |
Gateway Center | 000 Xxxxxxx Xxxxxx | Xxxxxxxxxxxx | MD | ||||
| 000 Xxxxxxx Xxxxxx |
Schedule 1B
Unsecured Revolver Subsidiary Guarantors
| 1) | FP Redland GP, LLC | |
| 2) | FP Redland, LLC | |
| 3) | FP 000 Xxxxxxxxxxxx Xxxxxxx, LLC | |
| 4) | FP Candlewood, LLC | |
| 5) | Aquia One, LLC | |
| 6) | 1400 Cavalier, LLC | |
| 7) | 0000 Xxxxxxxxx Xxxx., LLC | |
| 8) | Airpark Place, LLC | |
| 9) | FP Ammendale Commerce Center, LLC | |
| 10) | Aquia Two, LLC | |
| 11) | Crossways II LLC | |
| 12) | XX Xxxxx Drive Lot 5, LLC | |
| 13) | FP Properties, LLC | |
| 14) | FP Diamond Hill, LLC | |
| 15) | FP Xxxxxxxxxxx Xxxx, XXX | |
| 00) | Xxxxxxx Xxxxxxx Roads, LLC | |
| 17) | FP Gateway 270, LLC | |
| 18) | Gateway Manassas II, LLC | |
| 19) | FP 0000 Xxxxxxxx Xxxxxx, LLC | |
| 20) | FP Gateway West II, LLC | |
| 21) | FP Goldenrod Lane, LLC | |
| 22) | FP Greenbrier Circle, LLC | |
| 23) | GTC I Second LLC | |
| 24) | FP Hanover AB, LLC | |
| 25) | Xxxxxxx Corporate Center, LLC | |
| 26) | Xxxxxx XX, LLC | |
| 27) | Xxxxx Way Xxxxxxx, LLC | |
| 28) | FP Park Central V, LLC | |
| 29) | XX Xxxxxxx Center, LLC | |
| 30) | FP Xxxx Xxxx, LLC | |
| 31) | Reston Business Campus, LLC | |
| 32) | XX Xxxxxx Bend, LLC | |
| 33) | FP 500 & 600 HP Way, LLC | |
| 34) | FP 0000 Xxxxxxxxx Xxx, LLC | |
| 35) | XX Xxxxxxxx Park I, LLC | |
| 36) | XX Xxxxxxxx Park 6, LLC | |
| 37) | XX Xxxxxxxx Park 7, LLC | |
| 38) | XX Xxxxxxxx Park Land, LLC |
| 39) | Virginia Center, LLC | |
| 40) | XX Xxxx Park, LLC | |
| 41) | FP Cronridge Drive, LLC | |
| 42) | XX Xxxxxx Business Center, LLC | |
| 43) | XX Xxxxxx Place, LLC | |
| 44) | Techcourt, LLC | |
| 45) | FP Park Central I, LLC | |
| 46) | FP Triangle, LLC | |
| 47) | FP 0000 Xxxxxxxxxxx Xxxxxx, LLC | |
| 48) | 4212 Techcourt, LLC | |
| 49) | FP 000 0xx Xxxxxx, LLC | |
| 50) | FP Atlantic Corporate Park, LLC | |
| 51) | FP 3 Flint Hill, LLC | |
| 52) | FP Xxxx Xxxxxxx XX, XXX | |
| 00) | Xxxxxxxxxx Xxxxx Holding LLC | |
| 54) | Enterprise Center I, LLC | |
| 55) | FP Redland Technology Center LP | |
| 56) | XX Xxxxxxx, LLC | |
| 57) | FP Greenbrier Towers, LLC | |
| 58) | 403 & 000 Xxxxx Xxxxx, LLC | |
| 59) | AP Indian Creek, LLC | |
| 60) | Indian Creek Investors, LLC | |
| 61) | FP Navistar Investors, LLC | |
| 62) | Norfolk Commerce Park, LLC | |
| 63) | Windsor at Battlefield, LLC | |
| 64) | Interstate Plaza Operating LLC |
Schedule 2
Lender’s Commitments
Schedule 2
Lender’s Commitments
Lender’s Commitments
| Term Loan A | Term Loan B | Term Loan C | Term Loan D | Commitment | ||||||||||||||||
| Lender | Commitment | Commitment | Commitment | Commitment | Percentage | |||||||||||||||
KeyBank National Association |
$ | 10,000,000 | $ | 10,000,000 | $ | 10,000,000 | $ | 10,000,000 | 100 | % | ||||||||||
Contact: Xxxx X. Xxxxx 000 Xxxxxx Xxxxxx, 0xx Xxxxx Xxxxxxxxx, XX 00000 Phone: (000) 000-0000 Fax: (000) 000-0000 email: xxxx_x_xxxxx@xxxxxxx.xxx |
||||||||||||||||||||
Schedule 2.12
Auction Procedures
This Schedule 2.12 is intended to summarize certain basic terms of the Auction procedures
pursuant to and in accordance with the terms and conditions of §2.12 of the Secured Term
Loan Agreement, of which this Schedule 2.12 is a part. Neither the Agent nor any of its
respective affiliates or any officers, directors, employees, agents or attorneys-in-fact of such
Persons (together with the Agent and its affiliates, the “Agent-Related Person”) makes any
recommendation pursuant to any offering document as to whether or not any Lender should sell its
Loans to the Borrower, nor shall the decision by the Agent or any other Agent-Related Person (or
any of their affiliates) in its respective capacity as a Lender to sell its Loans to the Borrower
be deemed to constitute such a recommendation. Each Lender should make its own decision on whether
to sell any of its Loans and, if it decides to do so, the principal amount of and price to be
sought for such Loans. In addition, each Lender should consult its own attorney, business advisor
or tax advisor as to legal, business, tax and related matters concerning each Auction and the
relevant offering documents. Capitalized terms not otherwise defined in this Schedule 2.12
have the meanings assigned to them in the Secured Term Loan Agreement.
(a) Notice Procedures. In connection with each Auction, the Borrower will provide
notification to the Agent (for distribution to the Lenders (each, an “Auction Notice”)).
Each Auction Notice shall contain (i) the maximum principal amount (calculated on the face amount
thereof) of Loans that the Borrower offers to purchase in such Auction (the “Auction
Amount”), which shall be no less than $5,000,000 (unless another amount is agreed to by the
Agent); (ii) the range of discounts to par (the “Discount Range”), expressed as a range of
prices per $1,000 (in increments of $5), at which the Borrower would be willing to purchase Loans
in such Auction; (iii) the date on which such Auction will conclude, on which date Return Bids (as
defined below) will be due by 4:00 p.m. (New York time) (as such date and time may be extended by
the Agent, such time the “Expiration Time”), and (iv) the Tranche or Type of Loan the
Borrower offers to purchase. Such Expiration Time may be extended for a period not exceeding three
(3) Business Days upon notice by the Borrower to the Agent received not less than 24 hours before
the original Expiration Time; provided that only one extension per offer shall be
permitted. An Auction shall be regarded as a “failed auction” in the event that either (x) the
Borrower withdraws such Auction in accordance with the terms hereof or (y) the Expiration Time
occurs with no Qualifying Bids (as defined below) having been received. In the event of a failed
auction, the Borrower shall not be permitted to deliver a new Auction Notice prior to the date
occurring one (1) month (or such shorter period as may be permitted by the Agent in its sole
discretion) after such withdrawal or Expiration Time, as the case may be. Under no circumstances
may the Borrower deliver an Auction Notice to the Agent until after the conclusion (whether
successful or failed) of any previous Auction.
(b) Reply Procedures. In connection with any Auction, each Lender wishing to
participate in such Auction shall, prior to the Expiration Time, provide the Agent with a notice of
participation, in the form included in the respective offering document (each, a “Return
Bid”) which shall specify (i) a discount to par that must be expressed as a price per $1,000
(in increments of $5) in principal amount of Loans (the “Reply Price”) within the Discount
Range and (ii) the principal amount of Loans, in an amount not less than $[1,000,000] or an
integral multiple of $[100,000] in excess thereof, that such Lender offers for sale at its Reply
Price (the “Reply Amount”). A Lender may submit a Reply Amount that is less than the
minimum amount and incremental amount requirements described above only if the Reply Amount
comprises the entire amount of the Loans held by such Lender. Lenders may only submit one Return
Bid per Auction. The Borrower will not purchase any Loans at a price that is outside of the
applicable Discount Range, nor will any Return Bids submitted at a price that is outside such
applicable Discount Range be considered in any calculation of the Applicable Threshold Price (as
defined below).
(c) Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the
Agent, the Agent, in consultation with the Borrower, will calculate the lowest purchase price (the
“Applicable Threshold Price”) for such Auction within the Discount Range for such Auction
that will allow the Borrower to complete the Auction by purchasing the full Auction Amount (or such
lesser amount of Loans for which the Borrower has received Qualifying Bids). The Borrower shall
purchase Loans from each Lender whose Return Bid is within the Discount Range and contains a Reply
Price that is equal to or less than the Applicable Threshold Price (each, a “Qualifying
Bid”). All Loans included in Qualifying Bids received at a Reply Price lower than the
Applicable Threshold Price will be purchased at such applicable Reply Prices and shall not be
subject to proration.
(d) Proration Procedures. All Loans offered in Return Bids constituting Qualifying
Bids at the Applicable Threshold Price will be purchased at the Applicable Threshold Price;
provided that if the aggregate principal amount (calculated on the face amount thereof) of
all Loans for which Qualifying Bids have been submitted in any given Auction at the Applicable
Threshold Price would exceed the remaining portion of the Auction Amount (after deducting all Loans
to be purchased at prices below the Applicable Threshold Price), the Borrower shall purchase the
Loans for which the Qualifying Bids submitted were at the Applicable Threshold Price ratably based
on the respective principal amounts offered and in an aggregate amount equal to the amount
necessary to complete the purchase of the Auction Amount. No Return Bids will be accepted above
the Applicable Threshold Price.
(e) Notification Procedures. The Agent will calculate the Applicable Threshold Price
and post the Applicable Threshold Price and proration factor onto an internet or intranet site
(including an IntraLinks, SyndTrak or other electronic workspace) in accordance with the Agent’s
standard dissemination practices by 4:00 p.m. New York time one (1) Business Day after the date the
Return Bids were due (as such due date may be extended in accordance with this Schedule
2.12). The Agent will notify each Lender of the principal amount of Loans to be assigned and
the applicable settlement date received in connection with a Qualifying Bid.
(f) Additional Procedures. After an Auction Notice received from the Borrower has been
distributed to the Lenders by the Agent, the Borrower may withdraw an Auction only in the event
that, (a) as of such time, no Qualifying Bid has been received by the Agent, or (b) Borrower has
failed to meet a condition set forth in § 2.12(a) of the Secured
Term Loan Agreement. Furthermore, in connection with any Auction, upon submission by a Lender of a
Return Bid, such Lender will not have any withdrawal rights. Any Return Bid (including any
component bid thereof) delivered to the Agent may not be modified, revoked, terminated or cancelled
by a Lender. However, an Auction may become void if the conditions to the purchase of Loans by the
Borrower required by the terms and conditions of § 2.12 of the Secured Term Loan Agreement are not
met. The purchase price in respect of each Qualifying Bid for which purchase by the Borrower is
required in accordance with the foregoing provisions shall be paid directly by the Borrower to the
respective assigning Lender on a settlement date as determined jointly by the Borrower and the
Agent (which shall be not later than three (3) Business Days after the date Return Bids are due).
All questions as to the form of documents and validity and eligibility of Loans that are the
subject of an Auction will be determined by the Agent, in consultation with the Borrower, and their
determination will be final and binding so long as such determination is not inconsistent with the
terms of §2.12 of the Secured Term Loan Agreement or this Schedule 2.12. The Agent’s interpretation
of the terms and conditions of the offering document, in consultation with the Borrower, will be
final and binding so long as such interpretation is not inconsistent with the terms of §2.12 of the
Secured Term Loan Agreement or this Schedule 2.12. None of the Agent, any other Agent-Related
Person or any of their respective affiliates assumes any responsibility for the accuracy or
completeness of the information concerning the Borrower, any of its Subsidiaries, or any of their
affiliates (whether contained in an offering document or otherwise) or for any failure to disclose
events that may have occurred and may affect the significance or accuracy of such information. This
Schedule 2.12 shall not require the Borrower to initiate any Auction.
Schedule 7.1(b)
Capitalization
| Preferred | Restrictions / | |||||
| Equity and | other | |||||
| related | Agreements / | |||||
| Borrower / Guarantor | Ownership Interest | documents | Interests | |||
Trust First Potomac Realty
|
Common stock shares listed on New York Stock Exchange |
7.75% Series A Cumulative Redeemable Perpetual Preferred Shares | N/A | |||
First Potomac Realty Investment Limited Partnership |
First Potomac Realty Trust - aggregate general partnership and limited partnership interests in excess of 95%; other limited partners | None | None | |||
FP Airpark AB, LLC
|
FPR Holdings Limited Partnership -100% limited liability company interest |
None | None | |||
FP Chesterfield ABEF, LLC
|
FPR Holdings Limited Partnership -100% limited liability company interest |
None | None | |||
FP Chesterfield CDGH, LLC
|
FPR Holdings Limited Partnership -100% limited liability company interest |
None | None | |||
FP Gateway Center, LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
FP Hanover C, LLC
|
FPR Holdings Limited Partnership | None | None | |||
FP Hanover D, LLC
|
FPR Holdings Limited Partnership | None | None | |||
FP Prosperity, LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Xxxxx Xxxx Business Center, LLC |
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Xxxxxxx First LLC
|
First Xxxxxxx LLC -100% limited liability company interest |
None | None | |||
FPR Holdings Limited Partnership |
FPR General Partner, LLC, 1% general partnership interest; First Potomac Realty Investment Limited Partnership, 99% limited partnership interest | None | None |
| Preferred | Restrictions / | |||||
| Equity and | other | |||||
| related | Agreements / | |||||
| Borrower / Guarantor | Ownership Interest | documents | Interests | |||
Newington Terminal LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Xxxxxxxx Way Investments LLC |
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Columbia Holding Associates LLC |
Xxxxxx/Xxxxxxx Investment LLC -100% limited liability company interest |
None | None | |||
First Xxxxxxx LLC
|
Columbia Holding Associates LLC -100% limited liability company interest |
None | None | |||
Greenbrier/Norfolk Holding LLC |
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Greenbrier/Norfolk Investment LLC |
Greenbrier/Norfolk Holding LLC -100% limited liability company interest |
None | None | |||
Xxxxxx/Xxxxxxx Holding LLC |
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Xxxxxx/Xxxxxxx Investment LLC |
Xxxxxx/Xxxxxxx Holding LLC -100% limited liability company interest |
None | None | |||
Crossways Associates LLC
|
Xxxxxxxx Way Investments, LLC — 100% limited liability company interest | None | None | |||
Gateway Manassas I, LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Linden I LLC
|
First Potomac Realty Investment Limited Partnership -99% limited liability company interest; Linden I Manager, LLC - 1% limited liability company interest | None | None | |||
XX Xxxx, LLC
|
First Potomac Realty Investment Limited Partnership -99% limited liability company interest; XX Xxxx Manager, LLC — 1% limited liability company interest. | None | None | |||
Newington Terminal Associates LLC
|
Newington Terminal, LLC -100% limited liability company interest |
None | None | |||
Landover Xxxxxx Xxxxx, LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None |
| Preferred | Restrictions / | |||||
| Equity and | other | |||||
| related | Agreements / | |||||
| Borrower / Guarantor | Ownership Interest | documents | Interests | |||
Plaza 500, LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
Norfolk First LLC
|
Greenbrier Holdings Associates LLC -100% limited liability company interest |
None | None | |||
GTC II First LLC
|
Greenbrier Holdings Associates LLC -100% limited liability company interest |
None | None | |||
Greenbriar Holding Associates LLC |
Greenbrier/Norfolk Investment LLC -100% limited liability company interest |
None | None | |||
Xxxxxx First LLC
|
First Xxxxxx LLC -100% limited liability company interest |
None | None | |||
First Xxxxxx LLC
|
Columbia Holdings Associates, LLC -100% limited liability company interest |
None | None | |||
XX Xxx Xxxxx, LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None | |||
ACP East, LLC
|
First Potomac Realty Investment Limited Partnership -100% limited liability company interest |
None | None |
Schedule 7.3
Partially-Owned Entities
| % Interest | Capacity in | Borrower’s | ||||||
| Owned by | which Borrower | ownership | ||||||
| Name and Type of Entity | Borrower | holds the interest | interest therein | |||||
FP CPT 1750 Holdings, LLC |
50 | % | Operating Member | Direct | ||||
VIF/FP
Aviation Blvd Holdings, LLC |
50 | % | Operating Member | Direct | ||||
FP VIF I/ Rivers Park I, LLC |
25 | % | Operating Member | Direct | ||||
FP VIF II/ Rivers Park II, LLC |
25 | % | Operating Member | Direct | ||||
FP PERSEUS 53-713, LLC |
97 | % | Operating Member | Direct | ||||
Schedule 7.7
Litigation
NONE.
Schedule 7.13
Legal Name; Jurisdiction
First Potomac Realty Trust, a Maryland real estate investment trust
First Potomac Realty Investment Limited Partnership, a Delaware limited partnership
ACP East, LLC, a Maryland limited liability company
Columbia Holdings Associates LLC, a Delaware limited liability company
Crossways Associates LLC, a Delaware limited liability company
First Xxxxxx LLC, a Delaware limited liability company
First Xxxxxxx LLC, a Delaware limited liability company
FP Airpark AB, LLC, a Virginia limited liability company
FP Chesterfield ABEF, LLC, a Virginia limited liability company
FP Chesterfield CDGH, LLC, a Virginia limited liability company
FP Gateway Center LLC, a Maryland limited liability company
XX Xxxx, LLC, a Maryland limited liability company
FP Hanover C, LLC, a Virginia limited liability company
FP Hanover D, LLC, a Virginia limited liability company
FP Prosperity, LLC, a Virginia limited liability company
XX Xxx Xxxxx, LLC, a Delaware limited liability company
FPR Holdings Limited Partnership, a Delaware limited partnership
Gateway Manassas I, LLC, a Virginia limited liability company
Xxxxx Xxxx Business Center, L.L.C., a Maryland limited liability company
Greenbrier Holding Associates LLC, a Delaware limited liability company
Greenbrier/Norfolk Holding LLC, a Delaware limited liability company
Greenbrier/Norfolk Investment, LLC, a Delaware limited liability company
GTC II First, LLC, a Delaware limited liability company
Xxxxxxxx Way Investments LLC, a Delaware limited liability company
Landover Xxxxxx Xxxxx, LLC, a Delaware limited liability company
Linden I, LLC, a Delaware limited liability company
Newington Terminal Associates LLC, a Delaware limited liability company
Newington Terminal LLC, a Delaware limited liability company
Norfolk First, LLC, a Delaware limited liability company
Plaza 500, LLC, a Delaware limited liability Company
Xxxxxx First LLC, a Delaware limited liability company
Xxxxxx/Xxxxxxx Holding LLC, a Delaware limited liability company
Xxxxxx/Xxxxxxx Investment LLC, a Delaware limited liability company
Xxxxxxx First LLC, a Delaware limited liability company
Schedule 7.15
Affiliate Transactions
NONE.
Schedule 7.16
Employee Benefit Plans
Retirement Savings Plan under Section 401(k) of the Internal Revenue Code, as more fully described
in the SEC Filings.
Schedule 7.19
Subsidiaries
| NAME OF ENTITY | TAX ID/EIN | |||
1328 CAVALIER, LLC |
00-0000000 | |||
1400 CAVALIER, LLC |
00-0000000 | |||
0000 XXXXXXXXX XXXXXXXXX I, LLC |
00-0000000 | |||
0000 XXXXXXXXX XXXXXXXXX II, LLC |
00-0000000 | |||
0000 XXXXXXXXX XXXX., LLC |
00-0000000 | |||
00000 XXXX XXXXXXXX XXXXXXX, LLC |
00-0000000 | |||
000 XXXXXXX XXXXXX, LLC |
00-0000000 | |||
403 & 000 XXXXX XXXXX MANAGER, LLC |
00-0000000 | |||
403 & 000 XXXXX XXXXX, LLC |
00-0000000 | |||
4212 TECHCOURT, LLC |
00-0000000 | |||
ACP EAST LLC |
00-0000000 | |||
ACP EAST FINANCE, LLC |
00-0000000 | |||
AIRPARK PLACE HOLDINGS, LLC |
00-0000000 | |||
AIRPARK PLACE, LLC |
00-0000000 | |||
AP INDIAN CREEK, LLC |
00-0000000 | |||
AQUIA ONE, LLC |
00-0000000 | |||
AQUIA TWO, LLC |
00-0000000 | |||
BREN MAR HOLDINGS, LLC |
00-0000000 | |||
BREN MAR, LLC |
00-0000000 | |||
COLUMBIA HOLDING ASSOCIATES LLC |
00-0000000 | |||
CROSSWAYS ASSOCIATES LLC |
00-0000000 | |||
CROSSWAYS II LLC |
00-0000000 | |||
CROSSWAYS LAND, LLC |
00-0000000 | |||
ENTERPRISE CENTER I, LLC |
00-0000000 | |||
ENTERPRISE CENTER MANAGER, LLC |
00-0000000 | |||
EON GROUP, LLC |
00-0000000 | |||
EON GROUP, LTD |
00-0000000 | |||
FIRST POTOMAC DC 500 MANAGEMENT LLC |
00-0000000 | |||
FIRST POTOMAC DC HOLDINGS, LLC |
00-0000000 | |||
FIRST POTOMAC DC MANAGEMENT LLC |
00-0000000 | |||
FIRST POTOMAC MANAGEMENT LLC |
00-0000000 | |||
FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP |
00-0000000 | |||
FIRST POTOMAC REALTY TRUST |
00-0000000 | |||
FIRST POTOMAC TRS HOLDINGS, INC. |
00-0000000 | |||
FIRST XXXXXX LLC |
00-0000000 | |||
FIRST XXXXXXX LLC |
00-0000000 | |||
FP 0000 XXXXXXXXXXX XXXXXX, LLC |
00-0000000 | |||
FP 0000 XXXXXXXXX XXX, LLC |
00-0000000 | |||
FP 0000 XXXXXXXX XXXXXX, LLC |
00-0000000 | |||
FP 3 FLINT HILL, LLC |
00-0000000 | |||
FP 000 0xx XXXXXX, LLC |
00-0000000 | |||
FP 00 XXXXXXXX XXXXXX, LLC |
00-0000000 | |||
FP 500 & 600 HP WAY, LLC |
00-0000000 | |||
FP 000 XXXXX XXXXXX REIT GP, LLC |
00-0000000 | |||
FP 000 XXXXX XXXXXX, LLC |
00-0000000 | |||
| NAME OF ENTITY | TAX ID/EIN | |||
FP 000 XXXXXXXXXXXX XXXXXXX, LLC |
00-0000000 | |||
FP 000 XXXXXXXXXXX XX, LLC |
00-0000000 | |||
FP 6310 HILLSIDE CENTER, LLC |
00-0000000 | |||
FP 6315 HILLSIDE CENTER, LLC |
00-0000000 | |||
FP 0000 XXXXXXXXX XXXX, LLC |
00-0000000 | |||
FP 000 XXXXX XXXXXX, LLC |
00-0000000 | |||
FP 000 X XXXXXX, LLC |
00-0000000 | |||
FP AIRPARK AB, LLC |
00-0000000 | |||
FP AMMENDALE COMMERCE CENTER,LLC |
00-0000000 | |||
XX XXXXXXX, LLC |
00-0000000 | |||
FP ATLANTIC CORPORATE PARK, LLC |
00-0000000 | |||
FP CAMPOSTELLA ROAD, LLC |
00-0000000 | |||
FP CANDLEWOOD, LLC |
00-0000000 | |||
FP CANDLEWOOD BORROWER, LLC |
00-0000000 | |||
FP CHESTERFIELD ABEF, LLC |
00-0000000 | |||
FP CHESTERFIELD CDGH, LLC |
00-0000000 | |||
FP CLOVERLEAF INVESTOR, LLC |
00-0000000 | |||
FP CLOVERLEAF, LLC |
00-0000000 | |||
FP CRONRIDGE DRIVE, LLC |
00-0000000 | |||
XX XXXXX DRIVE LOT 5, LLC |
00-0000000 | |||
FP DIAMOND HILL, LLC |
00-0000000 | |||
FP GALLOWS ROAD, LLC |
00-0000000 | |||
FP GATEWAY 270, LLC |
00-0000000 | |||
FP GATEWAY CENTER, LLC |
00-0000000 | |||
FP GATEWAY WEST II, LLC |
00-0000000 | |||
XX XXXXXX BUSINESS CENTER, LLC |
00-0000000 | |||
XX XXXXXX PLACE, LLC |
00-0000000 | |||
FP GOLDENROD LANE, LLC |
00-0000000 | |||
FP GREENBRIER CIRCLE, LLC |
00-0000000 | |||
FP GREENBRIER TOWERS, LLC |
00-0000000 | |||
XX XXXX MANAGER, LLC |
00-0000000 | |||
XX XXXX, LLC |
00-0000000 | |||
FP HANOVER AB, LLC |
00-0000000 | |||
FP HANOVER C, LLC |
00-0000000 | |||
FP HANOVER D, LLC |
00-0000000 | |||
FP INDIAN CREEK, LLC |
00-0000000 | |||
FP METRO PLACE, LLC |
00-0000000 | |||
FP NAVISTAR INVESTORS, LLC |
00-0000000 | |||
FP NAVISTAR MANAGER, LLC |
00-0000000 | |||
FP NORTHRIDGE, LLC |
00-0000000 | |||
FP ONE FAIR OAKS, LLC |
00-0000000 | |||
FP PARK CENTRAL I, LLC |
00-0000000 | |||
FP PARK CENTRAL II, LLC |
00-0000000 | |||
FP PARK CENTRAL V, LLC |
00-0000000 | |||
XX XXXXXXX CENTER, LLC |
00-0000000 | |||
FP PATUXENT PARKWAY, LLC |
00-0000000 | |||
FP XXXX XXXX, LLC |
00-0000000 | |||
FP PROPERTIES II, LLC |
00-0000000 | |||
FP PROPERTIES, LLC |
00-0000000 | |||
FP PROSPERITY, LLC |
00-0000000 | |||
| NAME OF ENTITY | TAX ID/EIN | |||
FP REALTY INVESTMENT MANAGER, LLC |
00-0000000 | |||
FP RIVER’S BEND LAND, LLC |
00-0000000 | |||
XX XXXXXX BEND, LLC |
00-0000000 | |||
XX XXXXXXXX PARK 6, LLC |
00-0000000 | |||
XX XXXXXXXX PARK 7, LLC |
00-0000000 | |||
XX XXXXXXXX PARK I, LLC |
00-0000000 | |||
XX XXXXXXXX PARK LAND, LLC |
00-0000000 | |||
FP TRIANGLE, LLC |
00-0000000 | |||
XX XXX XXXXX, LLC |
00-0000000 | |||
XX XXXX PARK, LLC |
00-0000000 | |||
FPR GENERAL PARTNER, LLC |
00-0000000 | |||
FPR HOLDINGS LIMITED PARTNERSHIP |
00-0000000 | |||
GATEWAY HAMPTON ROADS, LLC |
00-0000000 | |||
GATEWAY MANASSAS I, LLC |
00-0000000 | |||
GATEWAY MANASSAS II, LLC |
00-0000000 | |||
XXXXX XXXX BUSINESS CENTER, L.L.C. |
00-0000000 | |||
GREENBRIER HOLDING ASSOCIATES LLC |
00-0000000 | |||
GREENBRIER LAND, LLC |
00-0000000 | |||
GREENBRIER/NORFOLK HOLDING LLC |
00-0000000 | |||
GREENBRIER/NORFOLK INVESTMENT LLC |
00-0000000 | |||
GTC I SECOND LLC |
00-0000000 | |||
GTC II FIRST LLC |
00-0000000 | |||
XXXXXXX CORPORATE CENTER, LLC |
00-0000000 | |||
INDIAN CREEK INVESTORS, LLC |
00-0000000 | |||
INTERSTATE PLAZA HOLDING LLC |
00-0000000 | |||
INTERSTATE PLAZA OPERATING LLC |
00-0000000 | |||
XXXXXXXX WAY INVESTMENTS LLC |
00-0000000 | |||
LANDOVER XXXXXX XXXXX, LLC |
00-0000000 | |||
LINDEN I MANAGER, LLC |
00-0000000 | |||
LINDEN I, LLC |
00-0000000 | |||
XXXXXX XX, LLC |
00-0000000 | |||
LINDEN III, LLC |
00-0000000 | |||
XXXXX WAY XXXXXXX, LLC |
00-0000000 | |||
NEWINGTON TERMINAL ASSOCIATES, LLC |
00-0000000 | |||
NEWINGTON TERMINAL LLC |
00-0000000 | |||
NORFOLK COMMERCE PARK LLC |
00-0000000 | |||
NORFOLK FIRST LLC |
00-0000000 | |||
NORFOLK LAND, LLC |
00-0000000 | |||
PLAZA 500, LLC |
00-0000000 | |||
RESTON BUSINESS CAMPUS, LLC |
00-0000000 | |||
RIVERS BEND BUSINESS CENTER ASSOCIATION, INC |
00-0000000 | |||
XXXXXX FIRST LLC |
00-0000000 | |||
XXXXXX/XXXXXXX HOLDING LLC |
00-0000000 | |||
XXXXXX/XXXXXXX INVESTMENT LLC |
00-0000000 | |||
XXXXXXX FIRST LLC |
00-0000000 | |||
TECHCOURT, LLC |
00-0000000 | |||
VIRGINIA CENTER, LLC |
00-0000000 | |||
VIRGINIA FP VIRGINIA CENTER, LLC |
00-0000000 | |||
WINDSOR AT BATTLEFIELD, LLC |
00-0000000 | |||
| NAME OF ENTITY | TAX ID/EIN | |||
FP VIF II/ RIVERS PARK I, LLC |
00-0000000 | |||
FP VIF II/ RIVERS PARK II, LLC |
00-0000000 | |||
FP CPT 1750 HOLDINGS, LLC |
00-0000000 | |||
FP CPT 1750 H STREET, LLC |
00-0000000 | |||
FP REDLAND, LLC |
00-0000000 | |||
FP REDLAND GP, LLC |
00-0000000 | |||
FP REDLAND TECHNOLOGY CENTER LP |
00-0000000 | |||
6960 AVIATION BLVD,OWNER, LLC |
00-0000000 | |||
6960 AVIATION BLVD,BORROWER, LLC |
00-0000000 | |||
FP AVIATION BLVD.,LLC |
00-0000000 | |||
FP AVIATION HOLDINGS,LLC |
00-0000000 | |||
VIF II/FP AVIATION BLVD HOLDINGS |
00-0000000 | |||
FP PERSEUS 53-713, LLC |
00-0000000 | |||
Schedule 8.19
Employee Benefit Plans
Retirement Savings Plan under Section 401(k) of the Internal Revenue Code, as more fully described
in the SEC Filings.
Schedule 9.1(g)
Contingent Liabilities
None.
ANNEX I
Subsidiary Guarantors Party to the Subsidiary Guaranty
| 1) | FP Airpark AB, LLC | |
| 2) | Xxxxxxxx Way Investments LLC | |
| 3) | FP Chesterfield ABEF, LLC | |
| 4) | FP Chesterfield CDGH, LLC | |
| 5) | FPR Holdings Limited Partnership | |
| 6) | FP Hanover C, LLC | |
| 7) | FP Hanover D, LLC | |
| 8) | Newington Terminal LLC | |
| 9) | FP Prosperity, LLC | |
| 10) | Greenbriar/Norfolk Investment LLC | |
| 11) | Greenbriar/Norfolk Holding LLC | |
| 12) | Columbia Holdings Associates LLC | |
| 13) | Xxxxxx/Xxxxxxx Investment LLC | |
| 14) | Xxxxxx/Xxxxxxx Holding LLC | |
| 15) | Xxxxxxx First LLC | |
| 16) | First Xxxxxxx LLC | |
| 17) | FP Gateway Center, LLC | |
| 18) | Xxxxx Xxxx Business Center, L.L.C. |
Annex 1 to Amendment No. 5 to Secured Term Loan Agreement
