Exhibit 10.1
THIRD AMENDED AND RESTATED LOAN AGREEMENT
among
FRANKLIN STREET PROPERTIES CORP.
FSP HOLDINGS LLC
FSP INVESTMENTS LLC
FSP PROPERTY MANAGEMENT LLC
FSP PROTECTIVE TRS CORP.
FSP HILLVIEW CENTER LIMITED PARTNERSHIP
FSP MONTAGUE BUSINESS CENTER CORP.
FSP GREENWOOD PLAZA CORP.
FSP 380 INTERLOCKEN CORP.
FSP 390 INTERLOCKEN LLC
FSP BLUE LAGOON DRIVE LLC
FSP ONE OVERTON PARK LLC
FSP NORTHWEST POINT LLC
FSP RIVER CROSSING LLC
FSP BOLLMAN PLACE LIMITED PARTNERSHIP
FSP SOUTHFIELD CENTRE LIMITED PARTNERSHIP
FSP FOREST PARK IV NC LIMITED PARTNERSHIP
FSP PARK SENECA LIMITED PARTNERSHIP
FSP ADDISON CIRCLE LIMITED PARTNERSHIP
FSP AUSTIN N.W. LIMITED PARTNERSHIP
FSP COLLINS CROSSING LIMITED PARTNERSHIP
FSP ELDRIDGE GREEN LIMITED PARTNERSHIP
FSP LIBERTY PLAZA LIMITED PARTNERSHIP
FSP PARK TEN LIMITED PARTNERSHIP
FSP WILLOW BEND OFFICE CENTER LIMITED PARTNERSHIP
FSP INNSBROOK CORP.
and
OTHER BORROWERS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT
and
RBS CITIZENS, NATIONAL ASSOCIATION ("Agent")
BANK OF AMERICA, N.A. ("Co-Agent")
CHEVY CHASE BANK, F.S.B.
WACHOVIA BANK, NATIONAL ASSOCIATION
and
Other Lenders, if any, which may become parties to this Agreement (with
Citizens, BOA and Chevy, the "Lenders")
October 19, 2007
TABLE OF CONTENTS
1. BACKGROUND.................................................................2
1.1 Definitions...........................................................2
1.2 Borrower..............................................................2
1.3 Use of Proceeds.......................................................2
1.4 Facility..............................................................2
1.5 Borrower Agent........................................................2
2. AGREEMENT TO MAKE LOANS....................................................3
2.1 Agreement to Make Revolving Loan......................................3
2.2 Reserved..............................................................3
2.3 Purpose of Loan.......................................................3
2.4 Requests for Advances.................................................3
2.5 Interest Rate and Payment Terms.......................................5
2.5.1 Borrower's Options...........................................5
2.5.2 Selection To Be Made.........................................5
2.5.3 Notice.......................................................5
2.5.4 Intentionally Deleted........................................6
2.5.5 Telephonic Notice............................................6
2.5.6 Limits On Options............................................6
2.5.7 Payment and Calculation of Interest..........................6
2.5.8 Principal....................................................6
2.5.9 Prepayment...................................................6
2.5.10 Maturity.....................................................7
2.5.11 Method of Payment; Date of Credit............................7
2.5.12 Billings.....................................................7
2.5.13 Default Rate.................................................7
2.5.14 Late Charges.................................................7
2.5.15 Voluntary Prepayment of LIBOR Rate Loans.....................8
2.5.16 Make Whole Provision.........................................9
2.6 Additional Provisions Related to Interest Rate Selection.............10
2.6.1 Increased Costs.............................................10
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2.6.2 Increased Capital Costs.....................................10
2.6.3 Taxes.......................................................11
2.6.4 LIBOR Rate Lending Unlawful.................................12
2.6.5 Additional Libor Conditions.................................12
2.6.6 Variable Rate Advances......................................12
2.7 The Loan Account.....................................................12
2.8 Establishment of Letter of Credits...................................13
2.9 Effect of Honor of L/C's.............................................14
2.10 Additional Provisions Relating to L/C's..............................14
2.11 Overline Facility....................................................17
3. THE NOTES.................................................................17
4. FEES......................................................................17
5. JOINDER DOCUMENTS.........................................................18
6. CONDITIONS TO CLOSING.....................................................18
6.1 Loan Documents.......................................................18
6.2 Certified Copies of Organization Documents...........................18
6.3 Resolutions..........................................................18
6.4 Incumbency Certificate; Authorized Signers...........................18
6.5 Legal Opinions.......................................................19
6.6 Intentionally Deleted................................................19
6.7 Performance; No Default..............................................19
6.8 Representations and Warranties.......................................19
6.9 Proceedings and Documents............................................19
6.10 Waiver...............................................................19
7. CONDITIONS TO ALL BORROWINGS..............................................19
7.1 Representations True; No Event of Default............................19
7.2 No Legal Impediment..................................................20
7.3 Governmental Regulation..............................................20
7.4 Proceedings and Documents............................................20
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8. REPRESENTATIONS, WARRANTIES AND COVENANTS.................................20
8.1 Organization; Authority, Etc.........................................20
8.2 Title to Asset.......................................................21
8.3 Financial Statements.................................................21
8.4 No Material Changes, Etc.............................................21
8.5 Franchises, Patents, Copyrights, Etc.................................22
8.6 Litigation...........................................................22
8.7 No Materially Adverse Contracts, Etc.................................22
8.8 Compliance With Other Instruments, Laws, Etc.........................22
8.9 Tax Status...........................................................22
8.10 No Event of Default..................................................23
8.11 Setoff, Etc..........................................................23
8.12 Certain Transactions.................................................23
8.13 Subsidiaries.........................................................23
8.14 Intentionally Deleted................................................23
8.15 ERISA Plan...........................................................23
8.16 Solvency.............................................................23
8.17 The Borrowing Base Properties........................................24
8.18 No Broker or Finder..................................................28
8.19 General..............................................................28
8.20 Representations and Warranties with Respect to the Borrowing Base
Properties...........................................................28
9. AFFIRMATIVE COVENANTS OF THE BORROWER.....................................28
9.1 Punctual Payment.....................................................28
9.2 Financial Statements, Certificates and Information...................28
9.3 Insurance............................................................30
9.4 Liens and Other Charges..............................................30
9.5 Inspection of Borrowing Base Properties and Books....................30
9.6 Compliance with Laws, Contracts, Licenses, and Permits...............30
9.7 Use of Proceeds......................................................31
9.8 Publicity............................................................31
9.9 Further Assurances...................................................31
9.10 Notices..............................................................31
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9.11 Other Affirmative Covenants..........................................31
9.12 Control of Borrower..................................................32
9.13 Wholly Owned Subsidiary..............................................32
9.14 Maintenance of Borrower's Properties.................................32
9.15 Acquisitions, Dispositions and Syndication of Borrower's Assets......32
9.16 Syndication Event....................................................32
9.17 Business Activities..................................................33
9.18 Right of First Opportunity...........................................33
10. NEGATIVE COVENANTS OF THE BORROWER........................................34
10.1 No Amendments, Terminations or Waivers...............................34
10.2 Restrictions on Indebtedness.........................................34
10.3 Restrictions on Liens, Etc...........................................35
10.4 Restrictions on Loans and Investments................................35
10.5 Merger, Consolidation, Conversion, Business Operations, and
Ownership and Disposition of Assets..................................36
10.6 Sale and Leaseback...................................................37
10.7 Distributions........................................................37
10.8 Financial Covenants..................................................37
10.9 Other Negative Covenants.............................................38
11. EVENTS OF DEFAULT AND REMEDIES............................................38
11.1 Events of Default....................................................38
11.2 Termination of Advances and Acceleration.............................41
11.3 Other Remedies.......................................................41
11.4 Distribution of Proceeds.............................................42
11.5 Power of Attorney....................................................43
11.6 Waivers..............................................................43
12. SETOFF....................................................................43
13. EXPENSES..................................................................43
14. INDEMNIFICATION...........................................................44
15. LIABILITY OF THE LENDER...................................................45
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16. RIGHTS OF THIRD PARTIES...................................................45
17. SURVIVAL OF COVENANTS, ETC................................................45
18. THE AGENT AND THE LENDERS.................................................46
18.1 Appointment of Agent.................................................46
18.2 Administration of Loan by Agent.....................................46
18.3 Delegation of Duties.................................................47
18.4 Exculpatory Provisions...............................................47
18.5 Reliance by Agent....................................................47
18.6 Notice of Default....................................................48
18.7 Lenders' Credit Decisions............................................48
18.8 Agent's Reimbursement and Indemnification............................48
18.9 Agent in its Individual Capacity.....................................49
18.10 Successor Agent.....................................................49
18.11 Duties in the Case of Enforcement...................................49
18.12 Respecting Loans and Payments.......................................50
18.12.1 Procedures for Loans........................................50
18.12.2 Nature of Obligations of Lenders............................50
18.12.3 Payments to Agent...........................................51
18.12.4 Distribution of Liquidation Proceeds........................51
18.12.5 Adjustments.................................................52
18.12.6 Setoff......................................................52
18.12.7 Distribution by Agent.......................................52
18.13 Delinquent Lender...................................................53
18.14 Holders.............................................................53
18.15 Assignment and Participation........................................54
18.15.1 Conditions to Assignment by Lenders.........................54
18.15.2 Certain Representations and Warranties, Limitations,
Covenants...................................................54
18.15.3 Register....................................................55
18.15.4 New Notes...................................................56
18.15.5 Participations..............................................56
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18.16 Disclosure..........................................................56
18.17 Miscellaneous Assignment Provisions.................................57
18.18 Amendment, Waiver, Consent, Etc.....................................58
18.19 Deemed Consent or Approval..........................................58
19. NO ASSIGNMENT BY THE BORROWER.............................................59
20. RELATIONSHIP..............................................................59
21. NOTICES...................................................................59
22. GOVERNING LAW.............................................................62
23. CONSENT TO JURISDICTION; WAIVERS..........................................62
24. PREFERENCES...............................................................62
25. RULES OF INTERPRETATION...................................................63
26. HEADINGS..................................................................64
27. COUNTERPARTS..............................................................64
28. ENTIRE AGREEMENT, ETC.....................................................64
29. TIME OF THE ESSENCE.......................................................64
30. SEVERABILITY..............................................................64
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EXHIBITS
Exhibit A - Joinder Agreement
Exhibit E - Assignment and Acceptance
Exhibit F - Lenders' Commitment
Exhibit H - Borrowing Base Properties
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SCHEDULES
Schedule 1 - Definitions
Schedule 2 - List of Borrowers
Schedule 3 - Loan Request Form
Schedule 4 - Subsidiaries
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WHEREAS, FRANKLIN STREET PROPERTIES CORP., successor by merger to FRANKLIN
STREET PARTNERS LIMITED PARTNERSHIP ("FSP"), a corporation organized under the
laws of the State of Maryland, together with certain wholly owned subsidiaries
entered into a certain loan arrangement with RBS CITIZENS, NATIONAL ASSOCIATION,
successor by merger with CITIZENS BANK OF MASSACHUSETTS, a bank ("Lender")
evidenced by, among other documents, instruments, and agreements, a certain Loan
Agreement dated February 23, 1999 (as amended the "Initial Agreement"); and
WHEREAS, the Initial Agreement was amended and restated by an Amended and
Restated Loan Agreement dated August 18, 2003 and a Second Amended and Restated
Loan Agreement dated August 16, 2005 (individually and collectively, the
"Restated Agreement");
WHEREAS, the Restated Agreement established a $150,000,000.00 revolving
credit facility (the "Loan") in favor of FSP and certain subsidiaries with RBS
Citizens, National Association, successor by merger with Citizens Bank of
Massachusetts, as agent for itself, Bank of America, N.A., and Chevy Chase Bank,
F.S.B (collectively, the "Lenders"); and
WHEREAS, the Lenders have agreed to the requests of Borrower (defined
below) to further increase the Loan provided that, among other things, the
Restated Agreement be further amended and restated;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Lenders hereby agree
that the Restated Agreement is hereby amended and restated as follows:
THIRD AMENDED AND RESTATED LOAN AGREEMENT
This Third Amended and Restated Loan Agreement (the "Loan Agreement") is
made as of the 19th day of October, 2007, by and among FRANKLIN STREET
PROPERTIES CORP. ("FSP") with a principal place of business at 401 Edgewater
Place, Suite 200, Wakefield, Massachusetts 01880-6210 and the Wholly Owned
Subsidiaries that are listed on Schedule 2 attached hereto (which Schedule 2 may
be amended from time to time in accordance with the terms hereof) (collectively,
the "Borrower") organized under the laws of the states noted therein, and RBS
CITIZENS, NATIONAL ASSOCIATION, with a place of business at 28 State Street,
Boston, Massachusetts 02109, BANK OF AMERICA, N.A., CHEVY CHASE BANK, F.S.B.,
WACHOVIA BANK, NATIONAL ASSOCIATION, and the other lending institutions which
may become parties to this Agreement pursuant to Section 18.15 hereof (the
"Lenders") and RBS CITIZENS, NATIONAL ASSOCIATION as agent for itself and such
other lending institutions (the "Agent").
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1. BACKGROUND
1.1 Definitions. This Agreement and other Loan Documents utilize various defined
terms which shall have the meanings set forth in Schedule 1 attached to this
Agreement or, if separately defined elsewhere herein or in any other Loan
Documents, as set forth in such separate definitions. Unless otherwise specified
in the Loan Documents, the definitions contained in this Agreement shall
supercede any inconsistent definitions contained in the Note or any other Loan
Document and, subject to Section 2.8, in the event of any inconsistencies
between this Agreement, the Note or any other Loan Document, this Agreement
shall control.
1.2 Borrower. Each entity comprising the Borrower as of the date hereof is as
described on Schedule 2 and organized under the laws of the states noted
therein. Schedule 2 shall be deemed updated (a) with respect to any Acquisitions
of individual properties by a Wholly Owned Subsidiary, to include any such
Wholly Owned Subsidiary at the time any such Wholly Owned Subsidiary executes
and delivers Joinder Documents to the Agent pursuant to Section 5 hereof, and
(b) with respect to any disposition of individual properties by any Wholly Owned
Subsidiary, to exclude such Wholly Owned Subsidiary at the time Borrower
delivers the notice and certification described in Section 9.15 hereof.
1.3 Use of Proceeds. Borrower has applied to Lenders to establish a revolving
line of credit facility in the maximum amount of $250,000,000.00, the proceeds
of which are to be used for property acquisitions, Acquisitions, renovations,
expansions, tenant improvement costs, equity and/or debt investments associated
with Syndication REITS, for general corporate purposes, and to pay costs and
expenses incidental to closing the Loan.
1.4 Facility. Subject to all of the terms, conditions and provisions of this
Loan Agreement, and of the agreements and instruments referred to herein, each
of the Lenders agree severally to establish the Loan up to a maximum aggregate
principal amount equal to such Lender's Commitment and Borrower agrees to accept
and repay proceeds outstanding under the Loan.
1.5 Borrower Agent. Each Borrower hereby appoints FSP as agent for the Borrower
to execute, on behalf of the Borrower, documents, instruments and agreements in
connection with the Loan, including, without limitation, documents, instruments
and agreements required for the administration of the Loan, receiving Loan
Advances and exercising interest rate selections and to receive all notices
required to be given to the Borrower under the Loan Documents, and establishing,
with RBS Citizens, National Association, on the Borrower's behalf, the various
deposit accounts required by this Agreement and the depositing therein and
withdrawing therefrom by FSP of amounts from time to time in accordance with the
terms and conditions of the Loan Documents. Each Borrower shall be jointly and
severally obligated under the Loan and shall be bound by all actions taken by
FSP in connection with the Loan. Any Loan received by FSP shall be deemed to
have been received by each Borrower.
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2. AGREEMENT TO MAKE LOANS.
2.1 Agreement to Make Revolving Loan. Subject to the terms and conditions of
this Agreement and relying upon the representations and warranties contained in
this Agreement and the other Loan Documents, each of the Lenders agree to lend
to the Borrower up to a maximum aggregate principal amount equal to such
Lender's Commitment and the Borrower may borrow, repay and reborrow from time to
time between the Closing Date and the Termination Date such sums as are
requested by Borrower up to a maximum aggregate principal amount at any one time
equal to the Loan Amount; however, any Advances of proceeds of the Loan shall be
made by the Lenders pro rata, in accordance with each Lender's Commitment
Percentage. Each request for an Advance of the Loan hereunder shall constitute a
representation and warranty by the Borrower that the conditions set forth in
ss.ss.7 and 8 have been satisfied on the date of such request unless, and only
to the extent that, any such representation and warranty relates specifically
and only to an earlier date in time.
2.2 Reserved.
2.3 Purpose of Loan. The Loan shall be used by the Borrower for the following
purposes: property acquisitions, Acquisitions, renovations, expansions, tenant
improvement costs, equity and/or debt investments associated with Syndication
REITS, for general corporate purposes, and to pay the costs and expenses
incidental to closing the Loan.
2.4 Requests for Advances. (a) The Borrower shall give to the Agent written
notice in the form of Schedule 3 hereto (or telephonic notice confirmed in
writing in the form of Schedule 3 hereto) of each Advance requested hereunder (a
"Loan Request") in accordance with the interest rate selection requirements set
forth in Section 2.5.3. Each such Loan Request shall specify (i) the principal
amount of the Advance requested, (ii) the intended use of the proceeds of such
Advance; and (iii) the proposed Drawdown Date of such Advance. The Borrower
agrees to accept the Advance requested from the Agent on the proposed Drawdown
Date. Each Advance shall be a minimum aggregate amount of $1,000,000.00 or an
integral multiple of $100,000 in excess thereof.
(b) In the event that the Borrower shall receive Advance(s) in excess of
the Loan Amount (and, if applicable, exclusive of the Overline Facility) the
Borrower shall immediately repay the Loan by an amount sufficient to reduce the
outstanding principal balance to equal or less than the Loan Amount.
(c) The Agent and the Lenders may rely on any request for an Advance or
financial accommodation which the Agent and the Lenders, reasonably and in good
faith, believes to have been made by a person duly authorized to act on behalf
of the Borrower and may decline to make any such requested Advance or to provide
any such financial accommodation pending the Agent and the Lenders' being
furnished with such documentation concerning that person's authority to act as
may be satisfactory to the Agent and the Lenders.
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(d) A request by the Borrower for any Advance or of the issuance of an L/C
shall be irrevocable and shall constitute certification by the Borrower that as
of the date of such request, each of the following is true and correct:
(i) There has been no material adverse change in the Borrower's
financial condition from the most recent financial information
furnished the Lenders pursuant to this Agreement;
(ii) The Borrower is in compliance with, and has not breached any
of, its covenants contained in this Agreement;
(iii) Each representation which is made herein or in any of the Loan
Documents is then true and complete as of and as if made on
the date of such request unless such representation relates
specifically and only to an earlier date in time; and
(iv) No event has occurred nor failed to occur which occurrence or
failure is, or with the passage of time or giving of notice
(or both) would constitute an Event of Default (as described
herein), whether or not the Agent and the Lenders has
exercised any of its rights upon such occurrence or failure.
(e) The Borrower shall immediately become indebted to the Lenders for the
amount of each Advance when such Advance is made for or on behalf of the
Borrower.
(f) (i) The Borrower may request that the Issuing Lender issue
L/C's for the account of the Borrower subject to and in
accordance with ss.ss.2.8, 2.9 and 2.10 of this Agreement and
the other provisions of this clause (f). Each such request
shall be in such manner as may from time to time be acceptable
to the Issuing Lender, in writing.
(ii) The Issuing Lender, shall issue any L/C so requested by the
Borrower, provided that the aggregate Stated Amount, following
the requested issuance thereof, would not (A) when aggregated
with all outstanding L/C's exceed the L/C Limit, or (B) when
aggregated with all outstanding L/C's and Advances exceed
Availability, and provided that the L/C is in form
satisfactory to the Issuing Lender.
(iii) The Borrower shall execute such documentation to apply for and
support the issuance of a L/C as may be required by the
Issuing Lender.
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(g) The Lenders, without the request of the Borrower, may make an Advance
equal to the amount which the Borrower is obligated to pay to the Issuing Lender
or for which the Borrower or the Issuing Lender becomes obligated on account of,
or in respect to, any L/C. Such Advance shall be made and even if such Advance
would result in Loan Amount being exceeded. Such action on the part of the
Lenders shall not constitute a waiver of the Lenders' rights under Section
2.4(b) above.
2.5 Interest Rate and Payment Terms. The Loan shall be payable as to interest
and principal in accordance with the provisions of this Agreement and the Note.
This Agreement also provides for interest at a Default Rate, Late Charges and
prepayment rights and fees. All payments for the account of Lenders shall be
applied to the respective accounts of the Lenders in accordance with each
Lender's Commitment Percentage of the Loan. The Agent will disburse such
payments to the Lenders on the date of receipt thereof if received prior to
10:00 a.m. on such date and, if not, on the next Business Day. Any and all
interest rate selection and conversion provisions in this Agreement are to be
administered by the Agent and to be allocated on a pro rata basis to the Note
held by each Lender based upon such Lender's Commitment Percentage.
2.5.1 Borrower's Options. Principal amounts outstanding under the
Loan shall bear interest at the following rates, at Borrower's selection,
subject to the conditions and limitations provided for in this Agreement:
(i) Variable Rate or (ii) Adjusted Libor Rate.
2.5.2 Selection To Be Made. Borrower shall select and thereafter may
change the selection of, the applicable interest rate, from the
alternatives otherwise provided for in this Agreement, by giving Agent a
Notice of Rate Selection: (i) prior to the Loan, (ii) prior to the end of
each Interest Period applicable to a Libor Advance, or (iii) on any
Business Day on which Borrower desires to convert an outstanding Variable
Rate Advance to a Libor Advance.
2.5.3 Notice. A "Notice of Rate Selection" shall be a written
notice, given by cable, tested telex, telecopier (with authorized
signature), or by telephone if immediately confirmed by such a written
notice, from an authorized representative of Borrower which: (i) is
irrevocable; (ii) is received by Agent not later than 10:00 o'clock A.M.
Eastern Time: (a) if an Adjusted Libor Rate is selected, at least three
(3) Business Days but not more than five (5) Business Days prior to the
requested Drawdown Date or the end of the current Interest Period to which
such selection is to apply or (b) if a Variable Rate is selected, on the
day on which such Loan is funded; (iii) as to each selected interest rate
option, sets forth the aggregate principal amount(s) to which such
interest rate option(s) shall apply and the Interest Period(s) applicable
to each Libor Advance; provided, however, that no portion of the
outstanding principal amount of any LIBOR Advances may be converted to, or
continued as, LIBOR Advances when any Event of Default has occurred and is
continuing, and no portion of the outstanding principal amount of any
LIBOR Advances may be converted to LIBOR Advances of a different duration
if such LIBOR Advances relate to any Hedging Obligations. In the absence
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of delivery of a continuation/conversion notice with respect to any LIBOR
Advances at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBOR Rate Loan shall,
on such last day, automatically convert to a loan that accrues interest by
reference to the LIBOR Rate Loans for a thirty (30) day period.
2.5.4 Intentionally Deleted.
2.5.5 Telephonic Notice. Without any way limiting Borrower's
obligation to confirm in writing any telephonic notice, Agent may act
without liability upon the basis of telephonic notice believed by Agent in
good faith to be from Borrower prior to receipt of written confirmation.
In each case Borrower hereby waives the right to dispute Agent's record of
the terms of such telephonic Notice of Rate Selection in the absence of
manifest error.
2.5.6 Limits On Options. One Selection Per Month. Each Libor Advance
shall be in a minimum amount of $1,000,000. At no time shall there be
outstanding a total of more than five (5) Libor Advances combined at any
time. If Borrower shall make more than one (1) Libor Rate Loan interest
rate selection in any thirty (30) day period, excluding conversions of
outstanding advances made at the end of an applicable Interest Period of
any previously outstanding Libor Advance, Agent may impose and Borrower
shall pay a reasonable processing fee for each such additional selection.
This limitation on interest rate selection shall not limit the number of
Advances which may be requested by the Borrower in any thirty (30) day
period.
2.5.7 Payment and Calculation of Interest. All interest shall be:
(a) Payable in arrears commencing November 1, 2007 and on the same day of
each month thereafter until the principal together with all interest and
other charges payable with respect to the Loan shall be fully paid; and
(b) calculated on the basis of a 360 day year and the actual number of
days elapsed. Each change in the Prime Rate shall simultaneously change
the Variable Rate payable under this Agreement. Interest at the Adjusted
Libor Rate shall be computed from and including the first day of the
applicable Interest Period to, but excluding, the last day thereof.
2.5.8 Principal. The entire principal balance shall be due and
payable in full at the Termination Date.
2.5.9 Prepayment. The Loan or any portion thereof may be prepaid in
full or in part at any time upon three (3) Business Days, prior written
notice to Agent without premium or penalty with respect to Variable Rate
Advances and, with respect to Libor Advances subject to a Make-Whole
Provision and upon payment of a LIBOR Rate Loan Prepayment Fee. Any
partial prepayment of principal shall first be applied to any principal
amount outstanding under the Overline Facility and otherwise in accordance
with the terms hereof.
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2.5.10 Maturity. On the Maturity Date all accrued interest,
principal and other charges due with respect to the Loan shall be due and
payable in full and the principal balance and such other charges, but not
unpaid interest, shall continue to bear interest at the Default Rate until
so paid.
2.5.11 Method of Payment; Date of Credit. All payments of interest,
principal and fees shall be made in lawful money of the United States in
immediately available funds, without counterclaim or set off and free and
clear, and without any deduction or withholding for, any taxes or other
payments (a) by direct charge to an account of Borrower maintained with
Agent (or the then holder of the Loan), or (b) by wire transfer to Agent
or (c) to such other bank or address as the Agent may designate in a
written notice to Borrower. Payments shall be credited on the Business Day
on which immediately available funds are received prior to 10:00 o'clock
A.M. Eastern Time; payments received after ten o'clock A.M. Eastern Time
shall be credited to the Loan on the next Business Day, payments which are
by check, which Agent may at its option accept or reject, or which are not
in the form of immediately available funds shall not be credited to the
Loan until such funds become immediately available to Agent, and, with
respect to payments by check, such credit shall be provisional until the
item is finally paid by the payer bank.
2.5.12 Billings. Agent may submit monthly billings reflecting
payments due; however, any changes in the interest rate which occur
between the date of billing and the due date may be reflected in the
billing for a subsequent month. Neither the failure of Agent to submit a
billing nor any error in any such billing shall excuse Borrower from the
obligation to make full payment of all Borrower's payment obligations when
due.
2.5.13 Default Rate. Agent shall have the option of imposing, and
Borrower shall pay upon billing therefor, an interest rate which is four
percent (4%) per annum above the Variable Rate ("Default Rate"): (a)
following any Event of Default, unless and until the Event of Default is
cured or waived by Agent; and (b) after the Maturity Date. Borrower's
right to select pricing options shall cease upon the occurrence and during
the continuance of an Event of Default.
2.5.14 Late Charges. Borrower shall pay, upon billing therefor, a
"Late Charge" equal to five percent (5%) of the amount of any payment of
principal, other than principal due at Maturity, interest, or both, which
is not paid within ten (10) days of the due date thereof. Late charges
are: (a) payable in addition to, and not in limitation of, the Default
Rate, (b) intended to compensate Agent and the Lenders for administrative
and processing costs incident to late payments, (c) are not interest, and
(d) shall not be subject to refund or rebate or credited against any other
amount due.
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2.5.15 Voluntary Prepayment of LIBOR Rate Loans. LIBOR Advances
maybe prepaid upon the terms and conditions set forth herein. For LIBOR
Advances in connection with which the Borrower has or may incur Hedging
Obligations, additional obligations may be associated with prepayment, in
accordance with the terms and conditions of the applicable Hedging
Contracts. The Borrower shall give the Agent, no later than 10:00 a.m.,
New York City time, at least three (3) Business Days notice of any
proposed prepayment of any LIBOR Advances, specifying the proposed date of
payment of such LIBOR Advances, and the principal amount to be paid. Each
partial prepayment of the principal amount of LIBOR Advances shall be in
an integral multiple of $100,000.00 and accompanied by the payment of all
charges outstanding on such LIBOR Advances and of all accrued interest on
the principal repaid to the date of payment. Borrower acknowledges that
prepayment or acceleration of a LIBOR Advance during an Interest Period
shall result in the Lender incurring additional costs, expenses and/or
liabilities and that it is extremely difficult and impractical to
ascertain the extent of such costs, expenses and/or liabilities.
Therefore, all full or partial prepayments of LIBOR Advances shall be
accompanied by, and the Borrower hereby promises to pay, on each date a
LIBOR Advance is prepaid or the date all sums payable hereunder become due
and payable prior to their stated maturity, by acceleration or otherwise,
in addition to all other sums then owing, an amount ("LIBOR Rate Loan
Prepayment Fee") determined by the Agent pursuant to the following
formula:
(a) the then current rate for United States Treasury securities (bills
on a discounted basis shall be converted to a bond equivalent) with
a maturity date closest to the end of the Interest Period as to
which prepayment is made, subtracted from
(b) the Adjusted Libor Rate applicable to the Libor Advance being
prepaid.
If the result of this calculation is zero or a negative number, then there
shall be no LIBOR Rate Loan Prepayment Fee. If the result of this
calculation is a positive number, then the resulting percentage shall be
multiplied by:
(c) the amount of the Libor Advance being prepaid.
The resulting amount shall be divided by:
(d) 360
and multiplied by:
(e) the number of days remaining in the Interest Period as to which the
prepayment is being made.
Said amount shall be reduced to present value calculated by using the
referenced United States Treasury securities rate and the number of days
remaining on the Interest Period for the Libor Advance being prepaid.
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The resulting amount of these calculations shall be the LIBOR Advance
Prepayment Fee.
2.5.16 Make Whole Provision. In addition to the LIBOR Rate Loan
Prepayment Fee, the Borrower agrees to reimburse the Lenders (without
duplication) for any increase in the cost to the Lenders, or reduction in
the amount of any sum receivable by the Lenders, in respect, or as a
result of:
(a) any conversion or repayment or prepayment of the principal
amount of any Libor Advances on a date other than the scheduled last day
of the Interest Period applicable thereto, whether voluntary or otherwise;
(b) any loans not being made as Libor Advances in accordance with
the borrowing request thereof;
(c) any Libor Advances not being continued as, or converted into,
LIBOR Advances in accordance with the continuation/conversion notice
thereof, or
(d) without duplication of any costs incurred by the Borrower under
any Hedging Contracts, any costs associated with marking to market any
Hedging Obligations that (in the reasonable determination of the Agent
unless another method of calculating costs is otherwise specified pursuant
to the terms of any Hedging Contracts) are required to be terminated as a
result of any conversion, repayment or prepayment of the principal amount
of any LIBOR Advances on a date other than the scheduled last day of the
Interest Period applicable thereto, whether voluntary or otherwise;
The Agent shall promptly notify the Borrower in writing of the occurrence of any
such event, such notice to state, in reasonable detail, the reasons therefore
and the additional amount required fully to compensate the Agent for such
increased cost or reduced amount. Such additional amounts shall be payable by
the Borrower to the Agent within five Business Days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrower. The Borrower understands, agrees and acknowledges
the following: (i) the Agent does not have any obligation to purchase, sell
and/or match funds in connection with the use of LIBOR Rate as a basis for
calculating the rate of interest on a LIBOR Advance, (ii) the LIBOR Rate may be
used merely as a reference in determining such rate, and (iii) the Borrower has
accepted the LIBOR Rate as a reasonable and fair basis for calculating such
rate, the LIBOR Rate Prepayment Fee, and other funding losses incurred by the
Lenders. Borrower further agrees to pay the LIBOR Rate Prepayment Fee and other
funding losses, if any, whether or not the Lenders elect to purchase, sell
and/or match funds.
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2.6 Additional Provisions Related to Interest Rate Selection.
2.6.1 Increased Costs. If on or after the date hereof the adoption
of any applicable law, rule or regulation or guideline (whether or not
having the force of law), or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Lenders with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(a) shall subject the Lenders to any tax, duty or other charge with
respect to its LIBOR Advances or its obligation to make LIBOR
Advances, or shall change the basis of taxation of payments to the
Lenders of the principal of or interest on its LIBOR Advances or any
other amounts due under this agreement in respect of its LIBOR
Advances or its obligation to make LIBOR Advances (except for the
introduction of, or change in the rate of, tax on the overall net
income of the Lenders or franchise taxes, imposed by the
jurisdiction (or any political subdivision or taxing authority
thereof) under the laws of which the Lenders are organized or in
which the Lenders' principal executive offices are located); or
(b) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any
such requirement imposed by the Board of Governors of the Federal
Reserve System of the United States) against assets of, deposits
with or for the account of, or credit extended by, the Lenders or
shall impose on the Lenders or on the London interbank market any
other condition affecting its LIBOR Advances or its obligation to
make LIBOR Advances;
and the result of any of the foregoing is to increase the cost to
the Lenders of making or maintaining any LIBOR Advances, or to reduce the
amount of any sum received or receivable by the Lenders under this
Agreement with respect thereto, by an amount reasonably deemed by the
Lenders to be material, then, within 15 days after written demand by the
Agent (which demand shall specify in detail the reasons for same), the
Borrower shall pay to the Lenders such additional amount or amounts as
will compensate the Lenders for such increased cost or reduction.
2.6.2 Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or
request (whether or not having the force of law) of any court, central
bank, regulator or other governmental authority affects the amount of
capital required or expected to be maintained by the Lender, and a Lender
determines that the rate of return on capital as a consequence of its
commitments or the loans made by the Lender is reduced to a level below
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that which the Lender could have achieved but for the occurrence of any
such circumstance, then, in any such case upon written notice from time to
time by the Lender to the Borrower, the Borrower shall promptly pay
directly to the Lender additional amounts sufficient to compensate for
such reduction in rate of return. A statement of the Lenders as to any
such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive
and binding on the Borrower. In determining such amount, the Lender may
use any method of averaging and attribution that it shall deem applicable.
2.6.3 Taxes. All payments by the Borrower of principal of, and
interest on, the LIBOR Advances and all other amounts payable hereunder
shall be made free and clear of and without deduction for any present or
future income, excise, stamp taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any
taxing authority, but excluding franchise taxes and taxes imposed on or
measured by the Lender's net income or receipts (such non-excluded items
being called "Taxes"). In the event that any withholding or deduction from
any payment to be made by the Borrower hereunder is required in respect of
any Taxes pursuant to any applicable law, rule or regulation, then the
Borrower will
(a) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(b) promptly forward to the Lender an official receipt or other
documentation reasonably satisfactory to the Lender evidencing such
payment to such authority; and
(c) pay to the Lender such additional amount or amounts as is
necessary to ensure that the net amount actually received by the Lender
will equal the full amount the Lender would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Lender with
respect to any payment received by the Lender hereunder, the Lender may
pay such Taxes and the Borrower will promptly pay such additional amount
(including any penalties, interest or expenses) as is necessary in order
that the net amount received by the Lender after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount the
Lender would have received had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Lender the required receipts or other
required documentary evidence, the Borrower shall indemnify the Lender for
any incremental Taxes, interest or penalties that may become payable by
the Lender as a result of any such failure.
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2.6.4 Libor Rate Lending Unlawful. If the Agent shall determine
(which determination shall, upon notice thereof to the Borrower be
conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law, rule, regulation or
guideline, (whether or not having the force of law) makes it unlawful, or
any central bank or other governmental authority asserts that it is
unlawful, for the Lenders to make, continue or maintain any Libor Advance
as, or to convert any loan into, a Libor Advance of a certain duration,
the obligations of the Lenders to make, continue, maintain or convert into
any such Libor Advances shall, upon such determination, forthwith be
suspended until the Agent shall notify the Borrower that the circumstances
causing such suspension no longer exist, and all Libor Advances of such
type shall automatically convert into Variable Rate Loans at the end of
the then current Interest Periods with respect thereto or sooner, if
required by such law or assertion.
2.6.5 Additional Libor Conditions. The selection by Borrower of an
Adjusted Libor Rate and the maintenance of the Loan at such rate shall be
subject to the following additional terms and conditions:
(i) Substitute Rate. If the Agent shall have determined that
(a) US dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Agent in the
London interbank market;
(b) by reason of circumstances affecting the Agent in the
London interbank, adequate means do not exist for ascertaining the
Libor Rate applicable hereunder to Libor Advances of any duration,
or
(c) Libor no longer adequately reflects the Lender's cost of
funding loans,
then, upon notice from the Agent to the Borrower, the obligations of the
Lenders under Section 2.5 to make or continue any loans as, or to convert
any loans into, Libor Advances of such duration shall forthwith be
suspended until the Agent shall notify the Borrower that the circumstances
causing such suspension no longer exist.
2.6.6 Variable Rate Advances. Each Variable Rate Advance shall
continue as a Variable Rate Advance until the Maturity Date of the Loan,
unless sooner converted, in whole or in part, to a Libor Advance, subject
to the limitations and conditions set forth in this Agreement.
2.7 The Loan Account. (a) An account (the "Loan Account") shall be opened on the
books of the Agent, in which Loan Account a record may be kept of all Advances
made by the Lenders to the Borrower under or pursuant to this Agreement and of
all payments thereon.
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(b) The Agent may also keep a record (either in the Loan Account or
elsewhere, as the Agent may from time to time elect) of all
interest, fees, service charges, costs, expenses, and other debits
owed the Agent and/or the Lenders (including the Issuing Lender) on
account of the Obligations and of all credits against such amounts
so owed.
(c) All credits against the Obligations shall be conditional upon final
payment to the Lender of the items giving rise to such credits. The
amount of any item credited against the Obligations which is charged
back against the Lender for any reason or is not so paid shall be an
Obligation and shall be added to the Loan Account, whether or not
the item so charged back or not so paid is returned.
(d) Except as otherwise provided herein, all fees, service charges,
costs, and expenses for which the Borrower is obligated hereunder
are payable thirty (30) days after the invoice date. The Lenders,
without the request of the Borrower, may make an Advance of any
interest, fee, service charge, or other payment to which the Agent
and/or the Lenders are entitled from the Borrower pursuant hereto
and may charge the same to the Loan Account notwithstanding that
such amount so advanced may result in Availability's being exceeded.
Such action on the part of the Lenders shall not constitute a waiver
of the Lenders' rights under Section 2.4(b), above. Any amount which
is added to the principal balance of the Loan Account as provided in
this subsection shall bear interest at the interest rate applicable
from time to time to the unpaid principal balance of the Loan
Account.
(e) Any statement rendered by the Agent to the Borrower concerning the
Obligations shall be considered correct and accepted by the Borrower
and shall be conclusively binding upon the Borrower unless the
Borrower provides the Agent with written objection thereto within
thirty (30) days from the mailing of such statement, which written
objection shall indicate, with particularity, the reason for such
objection. The Loan Account and the Agent's books and records
concerning the loan arrangement contemplated herein and the
Obligations shall be prima facie evidence of the items described
therein.
2.8 Establishment of Letter of Credits. (a) Upon the written request of the
Borrower, the Issuing Lender agrees to cause the issuance of L/C's on behalf of
a Borrower as provided herein. The Borrower may request issuance of L/C's in
such manner as may from time to time be reasonably acceptable to the Issuing
Lender. The Borrower shall execute and deliver to the Issuing Lender such
further documents and instruments in connection with any L/C, as the Issuing
Lender, in accordance with the Issuing Lender's then customary practices with
respect to similar facilities, may reasonably request including, without
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limitation, the Issuing Lender's standard letter of credit agreements (the "L/C
Agreement"). In the event of any inconsistency between the terms of the L/C
Agreement and this Agreement the terms and conditions of the L/C Agreement shall
control. By the issuance of a L/C (or an amendment to the L/C increasing the
Stated Amount thereof) by the Issuing Lender, and without any further action on
the part of the Issuing Lender or the Lenders, the Issuing Lender hereby grants
to each Lender, and each Lender hereby acquires from the Issuing Lender, an
undivided interest and participation in the L/C equal to such Lender's
Commitment Percentage of the aggregate amount available to be drawn under the
L/C. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this Section in respect of the L/C is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of the L/C or the occurrence and
continuance of a Default or Event of Default or reduction or termination of the
Commitment, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Notwithstanding anything to the
contrary contained in this Section 2.8(a), however, unless the Lenders'
expressly agree to the contrary, the Lenders shall have no obligation to accept
or acquire, and shall not be deemed to have accepted or acquired, any interest
or participation pursuant to this Section in respect of any L/C (or any
amendment increasing the Stated Amount of an L/C) if such L/C is issued (or such
amendment is entered into) by the Issuing Lender after the Termination Date, or
if the terms of the L/C or corresponding L/C Agreement (or any such amendment
thereto) is administered or enforced in a manner inconsistent with any of the
terms of this Agreement
(b) No L/C shall have an expiry date which is later than thirty (30) days
prior to the Maturity Date.
2.9 Effect of Honor of L/C's . The Borrower shall reimburse the Issuing Lender
for the amount of any honored L/C. Any such honoring which is not so reimbursed
on the Business Day when so honored shall constitute an Advance.
2.10. Additional Provisions Relating to L/C's. (a) The obligations of the
Borrower with respect to L/C's shall be absolute and unconditional. The
obligations of the Borrower with respect to L/C's shall rank pari passu with the
obligations of the Borrower to repay all other Obligations. The Issuing Lender's
rights, powers, privileges and immunities specified in or arising under this
Agreement are in addition to any hereafter created or arising, whether by
statute or rule of law or contract.
(b) The Borrower will
(i) promptly examine the copy of any L/C (and any amendments
thereof) sent to it by the Issuing Lender;
(ii) promptly examine all instruments and documents delivered to it
from time to time by the Issuing Lender; and
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(iii) within two (2) Business Days of receipt thereof, provide the
Issuing Lender with written notice of any irregularity or
claim of non-compliance with the instructions of such person
or entity.
The Borrower is conclusively deemed to have waived any such claim against the
Issuing Lender and the Lenders and their correspondents unless such notice is so
timely given.
(c) None of the Issuing Lender, the Issuing Lender's correspondents or
any advising, negotiating, or paying bank with respect to any L/C,
shall be responsible in any way for:
(i) performance by any beneficiary under any L/C or payee
under any L/C of that beneficiary's or payee's
obligations to the Borrower; or
(ii) the form, sufficiency, correctness, genuineness,
authority of any person signing; falsification; or the
legal effect of; any documents called for under any L/C
if (with respect to the foregoing) such documents on
their face are conforming.
(d) The Issuing Lender may honor, as complying with the terms of any L/C
and of any drawing thereunder, any drafts or other documents
otherwise in order, but signed or issued by an administrator,
executor, conservator, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, or
other legal representative of the Person authorized under such L/C
to draw or issue such drafts or other documents.
(e) Unless otherwise agreed to, in the particular instance, the Borrower
hereby authorizes the Issuing Lender to (i) select an advising bank,
if any; (ii) select a paying bank, if any; and (iii) select a
negotiating bank.
(f) The Issuing Lender shall have discharged its obligations under any
L/C which, or the drawing under which, includes payment
instructions, by the initiation of the method of payment called for
in, and in accordance with, such instructions (or by any other
commercially reasonable and comparable method). The Issuing Lender
does not assume any responsibility for any inaccuracy, interruption,
error, or delay in transmission or delivery by post, telegraph or
cable, or for any inaccuracy of translation.
(g) The Issuing Lender's rights, powers, privileges and immunities
specified in or arising under this Agreement are in addition to any
hereafter created or arising, whether by statute or rule of law or
contract.
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(h) Except to the extent otherwise expressly provided hereunder or
agreed to in writing by the Issuing Lender, and the Borrower, the
L/C will be governed by the Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce, Publication
No. 500, and any subsequent revisions thereof.
(i) If any change in any law, executive order or regulation, or any
directive of any administrative or governmental authority (whether
or not having the force of law), or in the interpretation thereof by
any court or administrative or governmental authority charged with
the administration thereof, shall either:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirements against L/C's hereafter caused to be
issued by the Issuing Lender or with respect to which the
Issuing Lender has an obligation to lend to fund drawings
thereunder; or
(ii) impose on any Issuing Lender any other condition or
requirements relating to any such L/C's;
and the result of any event referred to in clause (i) or (ii), above, shall be
to increase the cost to the Issuing Lender of issuing or maintaining any L/C,
then, upon demand by the Issuing Lender made within six (6) months of the
occurrence of any event referred to in clause (i) or (ii) above, and delivery by
the Issuing Lender to the Borrower of a certificate of an officer of the Lender
describing such change in law, executive order, regulation, directive, or
interpretation thereof, its effect on the Issuing Lender, and the basis for
determining such increased costs and their allocation, the Borrower within five
(5) Business Days after receipt of such notice shall pay to the Issuing Lender,
from time to time as specified by the Issuing Lender, such amounts as shall be
sufficient to compensate the Issuing Lender for such increased cost. The Issuing
Lender's determination of costs incurred under clause (i) or (ii) above, shall
be conclusive and binding on the Borrower in the absence of manifest error.
(j) The obligations of the Borrower under the within Agreement with
respect to L/C's are absolute, unconditional, and irrevocable and
shall be performed strictly in accordance with the terms hereof
under all circumstances, whatsoever including, without limitation,
the following:
(i) Any lack of validity or enforceability or restriction,
restraint, or stay in the enforcement of the within
Agreement, any L/C or any other agreement or instrument
relating thereto.
(ii) Any amendment or waiver of, or consent to the departure
from, all or any of the above.
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(iii) The existence of any claim, set-off, defense, or other
right which the Borrower may have at any time against
the beneficiary of the L/C.
(iv) Any honoring of a drawing under any L/C, which drawing
was nonconforming on account of minor nonsubstantive
variances from the requirements of the subject L/C, and
not the result of Issuing Bank's gross negligence.
2.11. Overline Facility. Upon written request by the Borrower, and subject to
the requirements of this Agreement, the Agent shall have the right (but not the
obligation) to lend up to an additional Fifty Million ($50,000,000.00) Dollars
("Overline Loan") to the Borrower as an overline facility for a term to be
mutually agreed to by the Borrower and the Lenders participating in the Overline
Loan (the "Overline Facility"). Upon receipt of a written request from the
Borrower for an Overline Loan, the Agent shall notify each Lender in writing and
offer the Lenders the opportunity to share in the Overline Loan in an amount
equal to such electing Lenders relative Commitment Percentage of the requested
amount of the Overline Loan. Each Lender shall have up to thirty (30) Business
Days to obtain any necessary internal approvals to commit to Advance under the
Overline Loan. Failure to respond during such thirty (30) day period shall be
deemed a rejection by such Lender of the opportunity to participate in the
requested Advance under the Overline Facility. It is understood that the Lenders
have not committed at this time to provide an Overline Loan and that no
commitment shall exist until the electing Lenders obtain all necessary approvals
and the Borrower complies with all reasonable conditions precedent established
by the electing Lenders. The Overline Facility shall bear interest, result in
Transaction Fees, and be repaid on the same terms as the Revolving Facility
under the Loan Agreement and shall be evidenced by new notes substantially in
the form of the Notes, and shall be deemed a Note hereunder, to be executed by
the Borrower prior to the Advance under the Overline Facility, in the amount of
the requested Overline Loan payable to the Lenders who have agreed to
participate in such Overline Loan. The Overline Facility shall be repaid prior
to the repayment of the Revolving Facility. The Lenders agree to the Overline
Facility being made available by the other Lenders participating in the Overline
Facility pursuant to the terms hereof.
3. THE NOTES. The obligation of the Borrower to pay the Loan Amount or, if less,
the aggregate unpaid principal amount of all Advances made by the Lenders
hereunder plus accrued interest thereon, shall be evidenced by Notes and payable
in accordance therewith. In the event any of the Notes are lost, destroyed or
mutilated at any time prior to payment in full of the indebtedness evidenced
thereby, the Borrower shall execute and deliver to the applicable Lender a new
note substantially in the form of the Note and the applicable Lender shall
execute and deliver to Borrower an affidavit and indemnification reasonably
acceptable to Borrower with respect to such lost Note.
4. FEES. The Borrower agrees to pay to the Agent on behalf of the Lenders the
following fees:
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(a) The Borrower shall pay to the Agent on behalf of the Lenders an
annual transaction fee as agreed to by and between the Agent and the
Borrower in the Fee Letter (the "Transaction Fee"), such Transaction
Fee to be paid at the time of each Advance made (including any
Advance made on account of a draw under a L/C) under the Loan with
an annual reconciliation of the amount due on each anniversary date
of this Agreement.
(b) At the time of the issuance of any L/C, the Borrower shall pay to
the Agent on behalf of the Lenders an annual letter of credit fee
equal to 1% of the Stated Amount of such L/C, or pro rated if the
L/C is issued for a period of less than twelve (12) months (the "L/C
Fee").
5. JOINDER DOCUMENTS. At the time of an Acquisition by a Wholly Owned
Subsidiary, such Wholly Owned Subsidiary which has become an owner of a
Borrowing Base Property in connection with such Acquisition shall execute the
Joinder Documents so as to become a Borrower under this Agreement and shall be
added as a maker under the Note. Upon the execution of such Joinder Documents,
such entities shall be considered a "Borrower" and subject to all of the terms
and conditions hereof, and shall continue to be a "Borrower" hereunder except as
provided in clause (b) of Section 1.2 hereof.
6. CONDITIONS TO CLOSING . The obligation of the Lenders to make the initial
Loan shall be subject to the satisfaction of the following conditions precedent
on or before the Closing Date.
6.1 Loan Documents. Each of the Loan Documents shall have been duly executed and
delivered by the respective parties thereto. Each of the Loan Documents shall be
in full force and effect and shall be in form and substance satisfactory to the
Lenders.
6.2 Certified Copies of Organization Documents. The Agent shall have received
from the Borrower a certified copy of its Organization Documents as in effect on
such date of certification, such Organizational Documents to be in form and
substance reasonably satisfactory to the Lenders.
6.3 Resolutions. All action necessary for the valid execution, delivery and
performance by the Borrower of this Agreement and the other Loan Documents to
which it is or is to become a party shall have been duly and effectively taken,
and evidence thereof satisfactory to the Lenders shall have been provided to the
Lenders. The Agent shall have received from each such Person true copies of the
resolutions authorizing the transactions described herein, each certified as of
a recent date to be true and complete.
6.4 Incumbency Certificate; Authorized Signers. The Agent shall have received
from the Borrower an incumbency certificate, dated as of the Closing Date,
giving the name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign, in the name and on behalf of such Person each of the
Loan Documents to which such Person is or is to become a party; and (b) to give
notices and to take other action on its behalf under the Loan Documents.
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6.5 Legal Opinions. The Lenders shall have received a favorable opinion or
opinions in form and substance satisfactory to the Agent and the Agent's
counsel, addressed to the Agent and the Lenders and dated as of the Closing
Date, from counsel to the Borrower acceptable to the Agent, as to such matters
as the Lender shall reasonably request, including, without limitation, the due
execution and authorization of all Loan Documents and the enforceability of this
Agreement and the Notes.
6.6 Intentionally Deleted.
6.7 Performance; No Default. The Borrower shall have performed and complied with
all terms and conditions herein required to be performed or complied with by it
or there shall exist no Default or Event of Default.
6.8 Representations and Warranties. Without limiting the provisions set forth in
Section 8.20, the representations of warranties made by the Borrower in the Loan
Documents or otherwise made by or on behalf of the Borrower in connection
therewith shall be true and correct in all respects on the Closing Date unless
such representations and warranties relate specifically and only to an earlier
date in time.
6.9 Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory to the Agent and the Agent's counsel in form and substance, and
the Agent shall have received all information and such counterpart originals or
certified copies of such documents and such other certificates, opinions or
documents as the Agent and the Agent's counsel may reasonably require.
6.10 Waiver. Any waiver by the Agent of any of the conditions precedent
contained herein for the closing of the Loan shall not be deemed to be a waiver
by the Agent of any other obligation of the Borrower hereunder.
7. CONDITIONS TO ALL BORROWINGS. The obligations of the Lenders to make the Loan
or any Advance, whether on or after the Closing Date, shall also be subject to
the satisfaction of the following conditions precedent:
7.1 Representations True; No Event of Default. Subject to Section 8.20, each of
the representations and warranties of the Borrower contained in this Agreement,
the other Loan Documents or in any document or instrument delivered pursuant to
or in connection with this Agreement shall be true as of the date as of which
they were made and shall also be true at and as of the time of the making of
such Loan, with the same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or permitted by this
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
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and except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall have
occurred and be continuing. The Agent on behalf of the Lenders shall have
received a certificate of the Borrower signed by an authorized officer of the
Borrower to such effect.
7.2 No Legal Impediment. No change shall have occurred in any law or regulations
thereunder or interpretations thereof that in the reasonable opinion of the
Agent would make it illegal for the Lenders to make such Loan.
7.3 Governmental Regulation. With respect to any Libor Advance, the Lenders
shall have received such statements in substance and form reasonably
satisfactory to the Lenders as the Lenders shall require for the purpose of
compliance with any applicable regulations of the Comptroller of the Currency or
the Board of Governors of the Federal Reserve System.
7.4 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 reasonably satisfactory in substance
and in form to the Agent and its counsel, and the Agent 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.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower represents, warrants,
and covenants to the Lenders as follows:
8.1 Organization; Authority, Etc.
(a) Organization; Good Standing. Each of the entities comprising the
Borrower is a limited partnership, limited liability company, or
corporation, as the case may be, duly organized under the laws of
its state of organization pursuant to each Person's respective
Organizational Documents, and is, and will at all times be, validly
existing and in good standing under the laws of such State. The
Borrower is, and will at all times be, duly organized and is, and
will at all times be, validly existing, in good standing, and
qualified to do business in each jurisdiction where required except
where failure to so qualify would not have a material adverse affect
on the Borrowing Base Properties. Each of the entities comprising
the Borrower has, and will at all times have, all requisite power to
own its property and conduct its business as now conducted and as
presently contemplated.
(b) Authorization. The execution, delivery and performance of this
Agreement and the other Loan Documents to which Borrower is or is to
become a Person and the transactions contemplated hereby and thereby
(i) are within the authority of such Person, (ii) have been duly
authorized by all necessary proceedings on the part of such Person,
(iii) do not conflict with or result in any breach or contravention
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of any provision of any other agreement binding upon such Person or
any provision of law, statute, rule or regulation to which such
Person is subject or any judgment, order, writ, injunction, license
or permit applicable to such Person, (iv) do not conflict with any
provision of the Organizational Documents of such Person, and (v) do
not require the approval or consent of, or filing with creditors,
trustees for creditors or shareholders of, or other holders,
directly or indirectly, of interests in, such Person or the approval
or consent or filing with any governmental agency or authority other
than those approvals or consents already obtained.
(c) Enforceability. The execution and delivery of this Agreement and the
other Loan Documents, to which each Borrower is or is to become a
Person will result in valid and legally binding obligations of such
Borrower enforceable against it in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the enforcement of
creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to
the discretion of the court before which any proceeding therefor may
be brought.
8.2 Title to Asset. The Borrower owns all of the assets reflected in the
financial statements of the Borrower as at the Balance Sheet Date or acquired
since that date free from all encumbrances except for Permitted Liens (except
with respect to any 1031 Property and property and assets sold or otherwise
disposed of in the ordinary course of business since that date).
8.3 Financial Statements. There has been furnished to the Lender the Form 10-K
Annual Report filed with the SEC in February 2007, which included audited
financial statements for the year ended December 31, 2006 for the Borrower.
There has also been furnished to the Lender the Form 10-Q Quarterly Report filed
with the SEC for the Borrower, which included unaudited financial statements for
the three months ending June 30, 2007 for the Borrower. Such filings have been
prepared in accordance with generally accepted accounting principles and fairly
present the financial condition of the Borrower as at the close of business on
the date(s) thereof and the results of operations for the fiscal year or period
then ended. As of the date of this Agreement, there are no liabilities or
contingent liabilities of the Borrower known to the officers, partners, or
trustees of the Borrower which are not disclosed in said financial statements
and the related notes thereto other than the Obligations, except for contingent
liabilities associated with the disposition of properties in such amounts as
would not reasonably be expected to have a material adverse effect on Borrower's
financial condition.
8.4 No Material Changes, Etc. Since the Balance Sheet Date, there has occurred
no materially adverse change in the financial condition or business of the
Borrower other than (i) changes described in the Form 10-Q for the fiscal
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quarter ended June 30, 2007, and (ii) changes in the ordinary course of business
that have not had any material adverse effect either individually or in the
aggregate on the business or financial condition of such Borrower.
8.5 Franchises, Patents, Copyrights, Etc. The Borrower possesses, and will at
all times possess, all franchises, patents, copyrights, trademarks, trade names,
licenses and permits, and rights in respect of the foregoing, adequate for the
conduct of its business substantially as now conducted or as it is intended to
be conducted with respect to the Borrowing Base Properties, without known
conflict with any rights of others, except where the failure to do so would not
reasonably be expected to have a material adverse effect on the Borrower taken
as a whole.
8.6 Litigation. There are no actions, suits, proceedings or investigations of
any kind pending or, to Borrower's knowledge, threatened against the Borrower
before any court, tribunal or administrative agency or board or any mediator or
arbitrator that, either in any case or in the aggregate, would reasonably be
expected to materially and adversely affect the business, assets or financial
condition of the Borrower taken as a whole, or result in any material liability
not adequately covered by insurance, and for which adequate reserves are not
maintained on the balance sheet of such Person, or which question the validity
of this Agreement or any of the other Loan Documents, any action taken or to be
taken pursuant hereto or thereto, or which will materially and adversely affect
the ability of the Borrower to use and occupy any of the properties comprising
the Borrowing Base Properties or to pay and perform the Obligations in the
manner contemplated by this Agreement and the other Loan Documents.
8.7 No Materially Adverse Contracts, Etc. The Borrower is not subject to any
charter, corporate or other legal restriction, or any judgment, decree, order,
rule or regulation that has or is reasonably expected in the future to have a
materially adverse effect on the business, assets or financial condition of such
Person. Each Borrower is not, and will not be, a party to any contract or
agreement that has or is expected to have any materially adverse effect on the
business of such Person.
8.8 Compliance With Other Instruments, Laws, Etc. The Borrower is not, and will
not at any time be, in violation of any provision of its Organizational
Documents or any agreement or instrument to which it may be subject or by which
it or any of its properties may be bound or any decree, order, judgment,
statute, license, rule or regulation, in any of the foregoing cases in a manner
that would be likely to materially and adversely affect the financial condition,
properties or business of such Person.
8.9 Tax Status. Each of the entities comprising the Borrower (a) has made or
filed, and will make or file in a timely fashion, all federal and state income
and all other material tax returns, reports and declarations required by any
jurisdiction to which it is subject, (b) has paid, and will pay when due, 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, (c) if a partnership, limited
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partnership, limited liability partnership, or limited liability company, has,
and will maintain, partnership tax classification under the Code, and (d) has
set aside, and will at all times set aside, on its books provisions reasonably
adequate for the payment of all taxes for periods subsequent to the period to
which such returns, reports or declarations apply, when and to the extent
required by generally accepted accounting principles. There are no unpaid taxes
in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers, partners or trustees of the Borrower know of no
basis for any such claim. The Borrower has filed, and will continue to file, all
of such tax returns, reports, and declarations either (i) separately from any
parent or affiliate or (ii) if part of a consolidated filing, as a separate
member of any such consolidated group.
8.10 No Event of Default. No Default or Event of Default has occurred and is
continuing.
8.11 Setoff, Etc. The Lenders' rights with respect to the repayment of the
Obligations are not subject to any setoff, claims, withholdings or other
defenses.
8.12 Certain Transactions. None of (a) the officers, trustees, directors,
general partners, managers, members, stockholders (except any stockholders of
FSP), beneficiaries, or employees of any Borrower or Subsidiary thereof or (b)
to the knowledge of the Borrower, any corporation, partnership, trust or other
entity (except a Syndicated REIT) in which any such officer, trustee, director,
general partner, manager, member, stockholder (except any stockholder of FSP),
beneficiary, or employee has a substantial interest or is an officer, director,
trustee, manager or general partner, is presently a party to any transaction
with the Borrower (other than for services as employees, officers, trustees,
managers and directors, other than otherwise permitted under this Agreement and
other than on the same terms as would be generally available to the Borrower in
an arm's length contract or arrangement with a third party).
8.13 Subsidiaries. As of the date hereof, the Borrower's Subsidiaries are as set
forth on Schedule 4.
8.14 Intentionally Deleted.
8.15 ERISA Plan. The Borrower does not, and will not, maintain or contribute to
an ERISA Plan under Section 412 of ERISA.
8.16 Solvency. Borrower, on a consolidated basis, (a) is not insolvent nor will
be rendered insolvent by the Indebtedness incurred in connection with the Loan,
(b) does not have unreasonably small capital with which to engage in its
business, or (c) has not incurred Indebtedness beyond its ability to pay such
Indebtedness as it matures. The Borrower, on a consolidated basis, has assets
having a value in excess of amounts required to pay any Indebtedness.
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8.17 The Borrowing Base Properties. The Borrower makes the following
representations and warranties, to the best of its knowledge, with respect to
each individual property included in the Borrowing Base Properties, as of the
date hereof and except as disclosed in the Borrower's filings with the
Securities and Exchange Commission:
(a) Availability of Utilities. (i) all utility services necessary and
sufficient for the use and operation of each property comprising the
Borrowing Base Properties are presently available to the boundaries
of each of the properties comprising the Borrowing Base Properties
through dedicated public rights of way or through perpetual private
easements; and (ii) the owner has obtained all material utility
installations and connections required for the operation and
servicing of each of the properties comprising the Borrowing Base
Properties for its intended purposes.
(b) Access. (i) the rights of way for all roads necessary for the
utilization in all material respects of each of the properties
comprising the Borrowing Base Properties for its intended purposes
have either been acquired by the appropriate Governmental Authority
or have been dedicated to public use and accepted by such
Governmental Authority; (ii) All such roads have been completed and
the right to use all such roads, or suitable substitute rights of
way, have been obtained; and (iii) all curb cuts, driveways and
traffic signals required for the operation and use in all material
respects of each of the properties comprising the Borrowing Base
Properties are existing.
(c) Condition of Borrowing Base Properties. Neither the Borrowing Base
Properties nor any material part thereof is now damaged or injured
as result of any material fire, explosion, accident, flood or other
casualty, no Taking is pending or contemplated.
(d) Compliance with Requirements/Historic Status/Flood Area. The
Borrowing Base Properties comply with all material Requirements.
Except as disclosed in the Environmental Report, Borrower has
received no written notice alleging any material non-compliance by
any of the properties comprising the Borrowing Base Properties with
any Requirements or indicating that any of the properties comprising
the Borrowing Base Properties is located within any historic
district or has, or may be, designated as any kind of historic or
landmark site under applicable Requirements. None of the properties
comprising the Borrowing Base Properties, except for the Borrowing
Base Property known as Blue Lagoon is located in any special flood
hazard area as defined under applicable Requirements, unless such
property is adequately covered by insurance.
(e) Other Contracts.
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(i) The Borrower has not made any material contract or arrangement
of any kind or type whatsoever (whether oral or written,
formal or informal), the performance of which by the other
party thereto would reasonably be expected to give rise to a
lien or encumbrance on any of the properties comprising the
Borrowing Base Properties other than a Permitted Lien.
(ii) The Borrower has not made any material contract or arrangement
of any kind or type whatsoever, with any affiliate of the
Borrower, except for management agreements with FSP Property
Management LLC, agreements for services of its employees,
officers, trustees, managers and directors and agreements with
a Syndication REIT (including without limitation agreements
relating to Affiliate Dispositions) and except as otherwise
permitted in this Agreement which shall be deemed approved by
Lenders, unless such contract or arrangement is in writing and
is (i) approved in writing in advance by the Agent, or is (ii)
on the same terms as would be generally available to the
Borrower in an arm's length contract or arrangement with a
third party.
(f) Violations. Except as disclosed in the Environmental Reports, the
Borrower has received no written notices of any violation of any
applicable material Requirements with respect to any of the
properties comprising the Borrowing Base Properties.
(g) Environmental Matters. The Borrower has caused an investigation to
be made of the past and present condition and usage of each
individual property included in the Borrowing Base Properties and
the operations conducted thereon and, based upon such investigation,
except as disclosed in the Environmental Reports and/or in the
Borrower's filings with the Securities and Exchange Commission,
makes the following representations and warranties as of the date
hereof and to the best of Borrower's knowledge:
(i) With respect to the Borrowing Base Properties, the Borrower
has not received written notice from any third Person
including, without limitation, any federal, state or local
governmental authority, asserting that any of the operations
thereon are in violation of any Environmental Law or any
judgment, decree or order related thereto which violation
would reasonably be expected to have a material adverse effect
on the business, assets or financial condition of the
Borrower.
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(ii) The Borrower has not received written notice from any third
Person including, without limitation, any federal, state or
local governmental authority, asserting (i) that it has been
identified by the United States Environmental Protection
Agency ("EPA) as a potentially responsible Person with respect
to a site listed on the National Priorities List, 40 C.F.R.
Part 300 Appendix B (1986); (ii) that any 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 Person has conducted or has ordered that the
Borrower 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 Person's incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the release
of Hazardous Substances; which would reasonably be expected to
have a material adverse effect on the business, assets or
financial condition of the Borrower or result in cleanup
expenses of Ten Million Dollars ($10,000,000.00) or more in
the aggregate.
(iii) With respect to the Borrowing Base Properties: (i) no portion
of the Borrowing Base Properties has been used for the
handling, processing, storage or disposal of Hazardous
Substances except in connection with the use of the Borrowing
Base Properties and any such use, handling, storage or
disposal has been materially in accordance with applicable
Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is
located on any portion of the Borrowing Base Properties except
in material compliance with Environmental Laws; (ii) in the
course of any activities conducted by the Borrower or the
operators of its properties, no Hazardous Substances have been
generated or are being used on the Borrowing Base Properties
except materially in accordance with applicable Environmental
Laws; (iii) there has been no release, i.e. any past or
present 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 Borrowing Base
Properties, which Release would have a material adverse effect
on the value of the Borrowing Base Properties; (iv) there have
been no Releases on, upon, from or into any real property in
the vicinity of any of the Borrowing Base Properties which,
through soil or groundwater contamination, has come to be
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located on, and which has a material adverse effect on the
value of the Borrowing Base Properties; and (v) any Hazardous
Substances that have been generated by Borrower on any of the
Borrowing Base Properties have been managed and/or disposed of
materially in compliance with such permits and applicable
Environmental Laws.
(iv) Except with respect to the Borrowing Base Properties known as
Blue Lagoon and Collins Crossing, neither the Borrower nor any
property comprising the Borrowing Base Properties 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, in any case which would reasonably be
expected to have a material adverse effect on the business,
assets or financial condition of the Borrower or result in
cleanup expenses of Ten Million Dollars ($10,000,000.00) or
more in the aggregate.
(v) The Borrower shall indemnify, defend, and hold the Agent and
the Lenders harmless of and from any claim brought or
threatened against the Agent and the Lenders by the Borrower,
any guarantor or endorser of the Obligations, or any
governmental agency or authority or any other person (as well
as from attorneys' reasonable fees and expenses in connection
therewith) on account of the presence of hazardous material or
oil on any of the Borrowing Base Properties, the release of
hazardous materials or oil on or from any of the Borrowing
Base Properties, or the failure by the Borrower to comply with
the terms and provisions hereof (each of which may be
defended, compromised, settled, or pursued by the Agent with
counsel of the Agent's selection, but at the expense of the
Borrower). This indemnification covers any costs and expenses
that the Agent and/or the Lenders may incur and any damages or
other liabilities including reasonable attorneys' fees for
assessment, containment and/or removal of any hazardous
material or oil from all or any portion of the Borrowing Base
Properties or any surrounding areas. The within
indemnification shall survive payment of the Obligations
and/or any termination, release, or discharge executed by the
Agent in favor of the Borrower; provided, however, that such
indemnification shall not apply to any claim brought or
threatened against the Agent and/or the Lenders and arising
from the Agent's and/or the Lenders' gross negligence or
willful misconduct.
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8.18 No Broker or Finder. Neither Borrower, nor anyone on behalf thereof, has
dealt with any broker, finder or other person or entity who or which may be
entitled to a broker's or finder's fee, or other compensation, payable by Agent
or the Lenders in connection with establishing of the Loan.
8.19 General. Each Borrower has disclosed any material fact or condition which
is necessary to make the representations and warranties set forth herein or in
any other Loan Document not materially misleading; provided that the Borrower
shall have no obligation to update any representation and warranty made as of a
specific date.
8.20 Representations, Warranties, Covenants and Agreements with Respect to the
Borrowing Base Properties. The representations, warranties, covenants and
agreements contained herein with respect to the Borrowing Base Properties, or
any of the properties comprising the Borrowing Base Properties, shall be made as
of the date hereof and no representations, warranties, covenants and agreements
are made with respect to the Borrowing Base Properties subsequent to the date
hereof.
9. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower covenants and agrees
that, so long as the Loan is outstanding:
9.1 Punctual Payment. The Borrower will duly and punctually pay or cause to be
paid the principal and interest on the Loan and all other amounts provided for
in the Note, this Agreement and the other Loan Documents to which the Borrower
is a party, all in accordance with the terms of the Notes, this Agreement and
such other Loan Documents.
9.2 Financial Statements, Certificates and Information. The Borrower will
deliver, or cause to be delivered, to the Lenders:
(a) as soon as practicable, but in any event not later than ninety (90)
days after the end of each fiscal year of the Borrower, on a
consolidated basis the audited balance sheet (i.e. SEC Form 10-K) of
the Borrower at the end of such year, and the related audited
statement of income, statement of retained earnings, changes in
capital, operating statements, and statement of cash flows for such
year, each setting forth in comparative form the figures for the
previous fiscal year and all such statements to be in reasonable
detail, prepared in accordance with generally accepted accounting
principles, and accompanied by an auditor's report prepared without
qualification by Ernst & Young LLP or by another independent
certified public accountant reasonably acceptable to the Lender,
together with a written statement from the chief financial officer
of the company stating that such officer has read a copy of this
Agreement, and that, in making the examination necessary to said
certification, such officer has obtained no knowledge of any Default
or Event of Default under this Agreement, or, if such officer shall
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have obtained knowledge of any then existing Default or Event of
Default he or she shall disclose in such statement any such Default
or Event of Default. In the event that the Borrower has filed a
Notification of Late Filing Form (SEC Form 12b-25) with the
Securities and Exchange Commission, then the Borrower will not be in
violation of this Section as long as the Borrower provides the Agent
with such required financial statement no later than three Business
Days after such financial statements have been filed with the
Securities and Exchange Commission;
(b) as soon as practicable, but in any event not later than forty-five
(45) days after the end of each fiscal quarter of the Borrower,
copies of the unaudited balance sheet (i.e. SEC Form 10Q) of the
Borrower as at the end of such quarter, and the related unaudited
statement of income, statement of retained earnings, changes in
capital, and statement of cash flows for the portion of the
Borrower's fiscal year then elapsed, all in reasonable detail and
prepared in accordance with generally accepted accounting
principles, together with a certification by the principal financial
or accounting officer, partner or trustee of the Borrower that the
information contained in such financial statements fairly presents
the financial position of the Borrower on the date thereof (subject
to year-end adjustments) and that, in making the examination
necessary to said certification, such Person has obtained no
knowledge of any Default or Event of Default under this Agreement.
In the event that the Borrower has filed a Notification of Late
Filing Form (Form 12b-25) with the Securities and Exchange
Commission, then the Borrower will not be in violation of this
Section as long as the Borrower provides the Agent with such
required financial statement no later than three business days after
such financial statements have been filed with the Securities and
Exchange Commission;
(c) contemporaneously with the delivery of the financial statements
referred to in clause (a) above, a statement of all contingent
liabilities of the Borrower which are not reflected in such
financial statements or referred to in the notes thereto, certified
by the principal financial or accounting office of FSP as fairly
presenting the financial condition of the Borrower as at the close
of business on the date(s) thereof, and upon request of the Agent,
annual budget and cash flow forecasts for the Borrower and Borrowing
Base Properties all in reasonable detail;
(d) simultaneously with the delivery of the financial statements
referred to in clauses (a) and (b) above, a covenant compliance
certificate signed by the principal financial or accounting officer
of FSP and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss.10.8; and
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(e) from time to time such other financial data and information
(including accountants' management letters) as the Lender may
reasonably request.
9.3 Insurance. (a) Upon request, the Borrower will provide evidence of insurance
with respect to each of the properties comprising the Borrowing Base Properties.
(b) The Borrower will provide the Agent with certificates evidencing such
insurance upon the request of the Agent.
9.4 Liens and Other Charges. The Borrower will duly pay and discharge, or cause
to be paid and discharged, before the same shall become overdue all claims for
labor, materials, or supplies that if unpaid would reasonably be expected by law
to become a lien or charge upon any of its property or any of the properties
comprising the Borrowing Base Properties; provided that the Borrower shall be
able to have Permitted Liens.
9.5 Inspection of Borrowing Base Properties and Books. Subject to the cost
limitation set forth in Section 13 below, (a) The Borrower shall permit the
Agent and the Lenders at the Borrower's expense, to visit and inspect any of the
properties comprising the Borrowing Base Properties and will cooperate with the
Agent and the Lenders during such inspections provided that this provision shall
not be deemed to impose on the Agent and the Lenders any obligation to undertake
such inspections; provided that so long as no Default or Event of Default shall
have occurred and be continuing, the Borrower shall only be obligated to pay the
reasonable expenses associated with one (1) such investigation of the books of
account of the Borrower during any twelve (12) month period commencing with the
first anniversary of this Agreement. Any such inspections are to be conducted
during normal business hours and prior to the occurrence and continuation of an
Event of Default, Lenders shall provide Borrower with forty-eight (48) hours
advance notice.
(b) The Borrower shall permit the Agent and the Lenders at the Borrower's
reasonable expense to discuss the affairs, finances and accounts of the Borrower
with, and to be advised as to the same by, its officers, partners, or trustees,
all at such reasonable times and intervals as the Agent and Lenders may
reasonably request.
9.6 Compliance with Laws, Contracts, Licenses, and Permits. The Borrower will
comply in all material respects with (a) the applicable laws and regulations
wherever its business is conducted, including all Environmental Laws and, in the
case of the Borrower, all Requirements, (b) the provisions of its Organizational
Documents and all Loan Documents to which Borrower or Subsidiary are
signatories, (c) all agreements and instruments by which it or any of its
properties may be bound, including, all restrictions, covenants and easements
affecting the Borrowing Base Properties, (d) all applicable decrees, orders and
judgments, and (e) all licenses and permits required by applicable laws and
regulations for the conduct of its business or the ownership, use or operation
of its properties.
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9.7 Use of Proceeds. The Borrower will use the proceeds of the Loan solely for
the purposes described herein. No portion of the Loan shall be used directly or
indirectly, and whether immediately, incidentally or ultimately (i) to purchase
or carry any margin stock, or to extend credit to others for the purpose
thereof, or to repay or refund indebtedness previously incurred for such
purpose, within the meaning of the regulations of the Board of Governors of the
Federal Reserve System including, without limitation, Regulations G, U and X and
the interpretations thereof, or (ii) for any purpose which would violate or is
inconsistent with the provisions of regulations of the Board of Governors of the
Federal Reserve System including, without limitation, Regulations G, U and X
thereof.
9.8 Publicity. The Borrower will permit the Lenders to obtain publicity in
connection with the financing through press releases. The Borrower shall be
provided with an opportunity to review and approve such publicity prior to
publication.
9.9 Further Assurances. The Borrower will cooperate with, and will do such
further acts and execute such further instruments and documents as the Agent and
the Lenders shall reasonably request to carry out to its satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
9.10 Notices. The Borrower will promptly notify the Agent in writing of (i) the
occurrence of any Event of Default; (ii) the occurrence of any other event which
is likely to have a materially adverse effect on any of the properties
comprising the Borrowing Base Properties or the business or financial condition
of the Borrower; or (iii) the receipt by the Borrower of any notice of default
or notice of termination with respect to any contract or agreement relating to
the ownership, operation, or use of any of the properties comprising the
Borrowing Base Properties which is likely to have a materially adverse effect on
the Borrower.
9.11 Other Affirmative Covenants. The Borrower will:
(a) On a consolidated basis, (a) not become insolvent, (b) not have
unreasonably small capital with which to engage in its business, (c)
not incur Indebtedness beyond its ability to pay such Indebtedness
as it matures, and (d) have assets having a value in excess of
amounts required to pay any Indebtedness;
(b) At all times hold itself out to the public as a legal entity,
separate and distinct from any other Person, including any
Subsidiary of the Borrower, or any parent or affiliate of the
Borrower; and
(c) Maintain adequate capital for the normal obligations reasonably
foreseeable for a business of its size and character and in light of
its contemplated business operations.
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9.12 Control of Borrower. Borrower agrees that at least two of George J. Carter,
Barbara J. Fournier, Janet P. Notopoulos, John G. Demeritt, John N. Burke or
Georgia Murray or a replacement officer (or director) which is approved by
Lenders in its reasonable discretion, shall, at all times maintain control of
the day to day operations of the Borrower; provided that it shall not be a
Default or an Event of Default during the period of ninety (90) days during
which replacement director(s) or officer(s), as the case may be, are being
sought and approved. The parties acknowledge that Georgia Murray and John Burke
are currently members of the board of directors of FSP, and as such, do not
maintain control the day to day operations of the Borrower as of the date
hereof.
9.13 Wholly Owned Subsidiary. The Borrower shall provide Agent with written
notice of the establishment of a Wholly Owned Subsidiary. At the time of an
Acquisition by a Wholly Owned Subsidiary, such Wholly Owned Subsidiary which has
become an owner of a Borrowing Base Property in connection with such Acquisition
shall execute the Joinder Documents so as to become a Borrower under this
Agreement.
9.14 Maintenance of Borrower's Properties. Borrower will protect and maintain,
or cause to be maintained, in a manner consistent with Borrower's current
maintenance standards at all times, the buildings and structures now standing or
hereafter erected on the Borrower's properties, and any additions and
improvements thereto, and all personal property now or hereafter situated
therein, and the utility services, the parking areas and access roads, and all
building fixtures and equipment and articles of personal property now or
hereafter acquired and used in connection with the operation of the Borrower's
properties.
9.15 Acquisitions, Dispositions and Syndication of Borrower's Assets. Borrower
shall provide Agent with written notice of all dispositions or Acquisitions of
individual properties by FSP or a Wholly Owned Subsidiary within seven (7) days
prior to the disposition or Acquisition. With respect to any Acquisitions, the
notice shall include the location of the property, the purchase price and the
projected closing date. With respect to any disposition (other than an Affiliate
Disposition) of individual properties by a Wholly Owned Subsidiary, the notice
shall include a certification from the chief financial officer of FSP stating
that such disposition shall not cause a violation of any covenant contained
herein, including, without limitation, any breach of ss.10.8, both before and
after such disposition, and that no Default or Event of Default exists
hereunder. With respect to Syndication REITS, Borrower will provide Agent with a
copy of the applicable confidential offering memorandum on or before the first
Syndication Event for such offering. All real property acquired in an
Acquisition by FSP or a Wholly Owned Subsidiary (including a 1031 Property)
shall become part of the Borrowing Base Properties and shall be subject to the
terms hereof, and the definition of Borrowing Base Properties shall be deemed
amended to include all such property (including 1031 Property) and to exclude
any property disposed of by the Borrower pursuant to the terms hereof.
9.16 Syndication Event. The Borrower shall use any net proceeds (after, as long
as no Event of Default exists, the repayment to the Borrower of any loans or
advances made by the Borrower for the purchase of the acquired property, payment
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of costs, fees and expenses) received by Borrower from a Syndication Event to
repay, to the extent outstanding, the Loan. Such proceeds shall be remitted to
the Agent within five (5) Business Days of receipt and may be reborrowed by the
Borrower subject to the terms herein and any such repayment shall be made in
accordance with and subject to the terms herein. In the event that a LIBOR Rate
Loan Prepayment Fee, or any amounts in respect of the Make Whole Provision
contained in Section 2.5.16, would be due from the Borrower on account of any
repayment required hereunder, as long as no Event of Default exists, upon
request by the Borrower the Agent shall deposit such proceeds in an interest
bearing account at the Agent and shall apply the proceeds in such account
against the Obligations upon the next succeeding Interest Period termination.
All proceeds in such account until applied against the Loan shall constitute
security for the Obligations.
9.17 Business Activities. The Borrower shall limit its business activities to
the ownership, construction, operation and maintenance of income producing
properties and investment banking activities related thereto and all matters
incidental or accessory thereto.
9.18 Right of First Opportunity.
(a) Syndication REITS. The Borrower shall use commercially reasonable efforts to
provide the Lenders with a right of first opportunity to make loans to
Syndication REITSs on terms and conditions mutually agreeable to such Lender and
the Syndication REIT; provided, however, that such right of first opportunity
shall not apply to (i) any loans to or investments in a Syndicated REIT by FSP
or a Wholly Owned Subsidiary thereof, and (ii) modifications to or refinancings
of any preexisting indebtedness related to a property on the date of
acquisition.
(b) Borrowers. The Lenders will have a right of first opportunity to make or
place permanent loans to the Borrowers under Section 10.2(e) hereof; provided,
however, that such right of first opportunity shall not apply to (i) any loans
to or investments in a Borrower by FSP or a Wholly Owned Subsidiary thereof, and
(ii) modifications to or refinancings of any preexisting indebtedness related to
a property on the date of acquisition.
(c) Procedure. Upon receipt by the Agent of a written notice from the Borrower
of Borrower's or a Syndication REIT's requirement for additional loans pursuant
to either Section 9.18(a) or (b), each Lender shall have up to ten (10) Business
Days to provide Borrower or the Syndication REIT as the case may be with a term
sheet on terms and conditions satisfactory to the Borrower or the Syndication
REIT, as applicable, and such Lender. Failure by a Lender to respond during such
ten (10) Business Day period shall be deemed a rejection by such Lender of the
opportunity to provide such debt financing. In the event that (x) a mutually
acceptable term sheet is not entered into within the above-described ten (10)
Business Day period, and (y) a loan arrangement meeting the financing
requirements of the Borrower or the Syndication REIT as the case may be in its
discretion is not closed within 45 days from the date of Borrower's written
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notice of the Borrower's or a Syndication REIT's, as applicable, requirement for
additional loans, the Borrower or the Syndication REIT, as the case may be,
shall be deemed to have satisfied all of its obligations under this Section
9.18. So long as the Borrower has satisfied its obligations under Section
9.18(b) and the procedures applicable to the Borrower under Section 9.18(c),
Borrower shall be entitled to pursue other financing options with other lenders
under Section 10.2(e) hereof. The Borrower may provide the notice of a debt
financing requirement and may incur indebtedness under Section 10.2(e) hereof on
one or more occassions.
10. NEGATIVE COVENANTS OF THE BORROWER. The Borrower covenants and agrees that,
so long as the Loan is outstanding or the Lenders have any obligation to make
any Advances:
10.1 No Amendments, Terminations or Waivers. The Borrower will not, directly or
indirectly, amend, or allow the amendment of, any of the Organizational
Documents of the Borrower following the date of this Agreement in any material
respect.
10.2 Restrictions on Indebtedness. The Borrower will not create, incur, assume,
guaranty or be or remain liable, contingently or otherwise, with respect to any
Indebtedness other than:
(a) Indebtedness to the Agent and the Lenders arising under any of the
Loan Documents or with respect to loans made by a Lender to the
Borrower pursuant to Section 9.18(b) hereof;
(b) current liabilities of the Borrower incurred in the ordinary course
of business but not incurred 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 arising from use of the Overline Facility described in
2.11;
(d) Indebtedness on acquired properties which was existing on such
properties as of the date of the acquisition and replacement
financing thereof;
(e) Indebtedness secured by liens on the Borrowing Base Properties,
subject to the limitations in Section 10.8(g);
(f) Indebtedness to third parties in the aggregate principal amount of
up to $50,000,000 if Lenders do not provide a $50,000,000 Overline
Facility (or such lesser amount requested by Borrower) within thirty
(30) Business Days of Borrower's request;
(g) Hedging Obligations;
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(h) Contingent liabilities associated with the disposition of
properties, provided that any such liabilities would not reasonably
be expected to have a material adverse effect on Borrower's
financial condition; and
(i) Indebtedness not to exceed the principal amount of $1,000,000 at any
time outstanding, including without limitation guarantees and
capital leases.
10.3 Restrictions on Liens, Etc. With the exception of Permitted Liens, the
Borrower will not (a) create or incur or suffer to be created or incurred or to
exist any lien, encumbrance, mortgage, pledge, charge or other security interest
of any kind upon any the Borrower's Base Properties, or upon the income or
profits therefrom; (b) transfer any of the Borrower's Base Properties or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (c) 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; (d) suffer to exist
for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid would
likely by law or upon bankruptcy or insolvency, or otherwise, be given any
priority whatsoever over its general creditors; or (e) sell, assign, pledge or
otherwise transfer any accounts, contract rights, general intangibles, chattel
paper or instruments, with or without recourse; provided that the Borrower may
create or incur or suffer to be created or incurred or to exist liens in favor
of the Lenders under the Loan Documents. Notwithstanding the foregoing, the
Borrower may sell any of its real property, whether now owned or hereafter
acquired, provided that prior to and after any such sale (i) the Borrower is in
compliance with all of its covenants herein, including, without limitation, the
financial covenants contained in ss.10.8, and (ii) No Default or Event of
Default has occurred and is continuing hereunder.
10.4 Restrictions on Loans and Investments. The Borrower will not make or permit
to exist or to remain outstanding any loan by the Borrower to any Person or any
Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States of
America that mature within two (2) years from the date of purchase
by the Borrower;
(b) demand deposits and bankers L/Cs of United States banks having total
assets in excess of $1,000,000,000;
(c) certificates of deposit and time deposits of United States banks
having total assets in excess of $1,000,000,000 that mature within
one (1) year from the date of purchase by the Borrower;
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(d) 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 Moody's Investors Services, Inc., and not less than "A 1"
if rated by Standard and Poor's;
(e) Subsidiaries;
(f) investments in Real Estate Assets
(g) mutual funds managed by Agent and Co-Agent;
(h) mutual or closed-end funds substantially all of whose assets are
comprised or securities of the types described in clauses (a)
through (d) and (g) above;
(i) Investments in an aggregate amount not to exceed $2,500,000.00;
(j) Investments consisting of loans and advances to employees for
reasonable travel, relocation and business expenses in the ordinary
course of business, extensions of trade credit in the ordinary
course of business and prepaid expenses in the ordinary course of
business;
(k) Investments in connection with Syndication Events and Acquisitions;
and
(l) Investments in land, development projects, and joint ventures which
do not exceed ten (10%) percent of Consolidated Total Asset Value.
10.5 Merger, Consolidation, Conversion, Business Operations, and Ownership and
Disposition of Assets.
(a) The Borrower shall not own any assets other than investments
permitted in 10.4 (a) - (l), income-producing properties, other
assets incidental to the ownership or operation of such property,
investment banking services and property management companies.
(b) After the date of this Agreement, the Borrower will not become a
party to any merger or consolidation, or agree to or effect any
asset acquisition or stock acquisition except in connection with (i)
the establishment of a Syndication REIT, (ii) a Syndication Event,
or (iii) an Acquisition.
(c) The Borrower will not convert into any other type of entity that
would adversely affect the Borrower's status as a REIT.
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(d) The Borrower will not engage in any business operations other than
those necessary for or incidental to the ownership, construction,
management, or operation of income-producing property, Real Estate
Assets, and investment banking services.
10.6 Sale and Leaseback. The Borrower will not enter into any arrangement,
directly or indirectly, whereby the Borrower shall sell or transfer any property
owned by it in order then or thereafter to lease such property or lease other
property that the Borrower intends to use for substantially the same purpose as
the property being sold or transferred.
10.7 Distributions. Except for Distributions necessary to maintain the REIT
status of the Borrower, after the occurrence and during the continuation of a
Default or an Event of Default (unless and until cured within any applicable
cure period), the Borrower will not make any Distributions. The Borrower will
also not make any Distributions which would cause a Default or Event of Default
10.8 Financial Covenants. The Borrower covenants and agrees that, so long as the
Loan is outstanding,
(a) Loan to Value. The ratio ("Loan to Value Ratio") obtained by
dividing the aggregate, without duplication, of (i) the outstanding
principal balance of the Loan, (ii) the Stated Amount of all
outstanding L/Cs, and (iii) other Indebtedness for borrowed money,
by the Value of the Borrowing Base Properties, expressed as a
percentage, shall not be greater than sixty percent (60%). This
covenant shall be tested at the end of each fiscal quarter of the
Borrower. In testing compliance with this covenant the Value of the
Borrowing Base Properties attributed to any one property may not
exceed 15% of the aggregate Value of the Borrowing Base Properties
for all properties.
(b) Ratio of Net Operating Income to Debt Service Charges. The Borrower
will not permit the ratio of Net Operating Income to Debt Service
Charges to be less than 2.0 to 1.0. This covenant shall be tested at
the end of each fiscal quarter of the Borrower.
(c) Consolidated Indebtedness. The Borrower will not permit Consolidated
Indebtedness to exceed 50% of the aggregate of (i) the Value of the
Borrowing Base Properties plus (ii) the book value of all tangible
assets of the Borrower (other than real estate and after eliminating
any duplication which will include (a) cash and cash equivalents,
(b) stock held in Syndication REITS, and (c) mortgage receivables
from Syndication REITS). This covenant shall be tested at the end of
each fiscal quarter of the Borrower.
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(d) Unencumbered Liquidity. The Borrower shall maintain minimum
unencumbered cash and other liquid investments in the form of the
Investments described in Section 10.4 (a) through (d),(g) and (h),
and in trust accounts, in an amount of not less than of $15,000,000.
This covenant shall be tested at the end of each fiscal quarter of
the Borrower.
(e) Account Balances. The Borrower, any Wholly Owned Subsidiaries and
affiliated companies, shall, at all times, maintain with the Agent
minimum checking account and savings account (exclusive of trust
accounts) collected balances of $1,500,000.00. This covenant shall
be tested at the end of each fiscal quarter of the Borrower.
(f) Net Worth. The Borrower shall, at the end of each fiscal quarter,
maintain a minimum Tangible Net Worth of $552,000,000.00 plus
seventy-five (75%) percent of (i) any net proceeds from future
offerings of stock of FSP, or (ii) any increase in shareholder
equity of FSP arising from mergers. This covenant shall be tested at
the end of each fiscal quarter of the Borrower.
(g) Maximum Secured Debt. The Borrower will not permit secured
Indebtedness of the Borrower to exceed 25% of the Value of the
Borrowing Base Properties.
10.9 Other Negative Covenants. The Borrower will not:
(a) Seek the dissolution or winding up, in whole or in part, of the
Borrower or voluntarily file, or consent to the filing of, a
petition for bankruptcy, reorganization, assignment for the benefit
of creditors or similar proceedings; and
(b) Commingle any of its accounts with accounts of any other Person,
including, any Subsidiary of the Borrower, or parent or affiliate of
the Borrower.
11. EVENTS OF DEFAULT AND REMEDIES.
11.1 Events of Default. The occurrence of any one or more of the following
conditions or events shall constitute an "Event of Default":
(a) any failure by the Borrower to pay, within five (5) days of the due
date, any interest on or principal of or other sum payable under the
Notes; or
(b) any failure by the Borrower to pay as and when due and payable any
other sums to be paid by the Borrower to the Agent or the Lenders
under this Agreement and the continuance of such failure for a
period of five (5) days after notice thereof from the Agent; or
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(c) with the exception of a Permitted Lien, title to the Borrowing Base
Properties is or becomes reasonably unsatisfactory to the Lenders by
reason of any lien, charge, encumbrance, title condition or
exception and such matter causing title to be or become
unsatisfactory is not cured to Lenders' reasonable satisfaction or
removed within twenty (20) days after notice thereof from the Agent
to the Borrower; or
(d) the Borrowing Base Properties or any material part thereof is
subject to a Taking; or
(e) any failure by the Borrower to duly observe or perform any term,
covenant, condition or agreement contained in ss.9.3, ss.9.13,
ss.10.1, ss.10.2, ss.10.4, ss.10.8 or ss.10.9 hereof; or
(f) any representation or warranty made or deemed to be made by or on
behalf of the Borrower in this Agreement or in any of the other Loan
Documents, or in any report, certificate, financial statement,
document or other instrument delivered pursuant to or in connection
with this Agreement, any Advance or any of the other Loan Documents,
shall prove to have been false or incorrect in any material respect
upon the date when made or deemed to be made or repeated; or
(g) any dissolution, termination, partial or complete liquidation,
merger or consolidation of the Borrower, or any sale, transfer or
other disposition of all or substantially all of the assets of the
Borrower, other than as permitted under the terms of this Agreement;
or
(h) any suit or proceeding shall be filed against the Borrower or any of
the properties comprising the Borrowing Base Properties which is
reasonably likely to result in a judgment which would have a
materially adverse affect on the ability of the Borrower to perform
their respective material obligations under and by virtue of the
Loan Documents; or
(i) unless otherwise approved by Required Lenders in their reasonable
discretion, at least two of George J. Carter, Barbara J. Fournier,
Janet P. Notopoulos, John G. Demeritt, John N. Burke or Georgia
Murray or a replacement officer or director approved by the Lenders
in their reasonable discretion, fails to retain control of the day
to day management of the Borrower; provided that it shall not be a
Default or an Event of Default for ninety (90) days while Borrower
is seeking to replace such officer or director; or
(j) any failure by the Borrower to pay at maturity, or within any
applicable period of grace, any material obligation for borrowed
money or credit received, including, without limitation, any
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Obligations, or in respect of any capitalized material lease, or any
failure to observe or perform any material term, covenant or
agreement contained in any material agreement evidencing or securing
borrowed money or credit received, or in respect of any capitalized
lease, and the result of such failure is that the holder or holders
thereof or of any obligations issued thereunder to accelerate the
maturity thereof; or
(k) Borrower shall file a voluntary petition in bankruptcy under Title
11 of the United States Code, or an order for relief shall be issued
against any such Person in any involuntary petition in bankruptcy
under Title 11 of the United States Code, or any such Person shall
file any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future
federal, state or other law or regulation relating to bankruptcy,
insolvency or other relief of debtors, or such Person shall seek or
consent to or acquiesce in the appointment of any custodian,
trustee, receiver, conservator or liquidator of such Person, or of
all or any substantial part of its respective property, or such
Person shall make an assignment for the benefit of creditors, or
such Person shall give notice to any governmental authority or body
of insolvency or pending insolvency or suspension of operation; or
(l) an involuntary petition in bankruptcy under Title 11 of the United
States Code shall be filed against the Borrower and such petition
shall not be dismissed within sixty (60) days of the filing thereof;
or
(m) a court of competent jurisdiction shall enter any order, judgment or
decree approving a petition filed against the Borrower seeking any
reorganization, arrangement, composition, readjustment, liquidation
or similar relief under any present or future federal, state or
other law or regulation relating to bankruptcy, insolvency or other
relief for debtors, or appointing any custodian, trustee, receiver,
conservator or liquidator of all or any substantial part of its
property; or
(n) any uninsured final judgment in excess of $2,000,000 shall be
rendered against the Borrower and shall remain in force,
undischarged, unsatisfied and unstayed, for more than thirty (30)
days, whether or not consecutive; or
(o) any of the Loan Documents shall be canceled, terminated, revoked or
rescinded otherwise than in accordance with the terms thereof or
with the express prior approval of the Lenders, or any action at
law, suit in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf
of the Borrower which is a Person thereto or any of their respective
stockholders, partners or beneficiaries, 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 in accordance
with the terms thereof; or
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(p) any Borrower or any Subsidiary thereof shall be indicted for a
federal or state crime, a punishment for which could include the
forfeiture of any of its assets; or
(q) any failure by the Borrower to duly observe or perform any other
term, covenant, condition or agreement under this Agreement and
continuance of such failure for a period of thirty (30) days after
notice thereof from the Agent; or
(r) any failure by the Borrower to duly perform all of its obligations
under any Hedging Obligations; or
(s) any "Event of Default", as defined or otherwise set forth in any of
the other Loan Documents, shall occur.
11.2 Termination of Advances and Acceleration. Upon the occurrence of any
Default or Event of Default, Lenders and the Issuing Lender shall have the right
to suspend the making of any Advances or issuance of any L/C hereunder. Further,
if any one or more Events of Default shall occur and be continuing, the Agent
may by notice to the Borrower declare the Lenders' obligations to make Advances
hereunder to be terminated, whereupon the same shall terminate and the Lenders
shall be relieved of all obligations to make Advances to the Borrower, and/or
declare all unpaid principal of and accrued interest on the Notes, together with
all other amounts owing under the Loan Documents, to be immediately due and
payable, whereupon same shall become and be immediately due and payable,
anything in the Loan Documents to the contrary notwithstanding, without
presentment, protest, demand or other notice of any kind, all of which are
hereby expressly waived by the Borrower and, to the extent Lenders hold in an
account any unapplied proceeds from a Syndication Event, Agent or the Lenders
may immediately apply such funds in satisfaction of any unpaid principal of and
accruing interest on the Notes; provided that if any one or more of the Events
of Default specified in ss.11.1 (k), ss.11.1 (l), or ss.11.1 (m), above, shall
occur with respect to any Borrower, the Lenders' obligations to make Advances
hereunder automatically shall so terminate and all unpaid principal of and
accrued interest on the Notes, together with all other amounts owing under the
Loan Documents, automatically shall become and be immediately so due and
payable, without any declaration or other act on the part of the Agent or the
Lenders.
11.3 Other Remedies. If any one or more of the Events of Default shall have
occurred and continued beyond any applicable grace periods, and whether or not
the Lenders shall have terminated its obligations to make Advances or
accelerated the maturity of the Loan pursuant to ss.11.2, the Agent and the
Lenders may proceed to protect and enforce its rights and remedies under this
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Agreement, the Note or any of the other Loan Documents, including, by
foreclosure, exercise of set-off or pledge rights and/or by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced, including as permitted by applicable law the obtaining of the ex
parte appointment of a receiver, and, if any amount owed to the Agent or the
Lenders shall have become due, by declaration or otherwise, proceed to enforce
the payment thereof or any other legal or equitable right of the Agent or the
Lenders. No remedy conferred upon the Agent or the Lenders or the holder of the
Note in this Agreement or in any of the other Loan Documents 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 thereunder or now
or hereafter existing at law or in equity or by statute or any other provision
of law.
11.4 Distribution of Proceeds. In the event that, following the occurrence and
during the continuance of any Default or Event of Default, the Agent receives
any monies, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the reimbursement
of the Agent and the Lenders for or in respect of all reasonable
costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Lender in connection with the
collection of such monies by the Agent and the Lenders, for the
exercise, protection or enforcement by the Agent of all or any of
the rights, remedies, powers and privileges of the Agent and the
Lenders under this Agreement or any of the other Loan Documents or
in support of any provision of adequate indemnity to the Agent and
the Lenders against any taxes or liens which by law shall have, or
may have, priority over the rights of the Lenders to such monies;
(b) Second, to all other Obligations in such order or preference as the
Agent may determine; provided, however, that the Agent may in its
discretion make proper allowance to take into account any
Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions for
payment in full satisfactory to the Agent and the Lenders of all of
the Obligations, to the payment of any obligations required to be
paid pursuant to ss.9-615 of the Uniform Commercial Code of the
Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Borrower or to
such other Persons as are entitled thereto.
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11.5 Power of Attorney. For the purposes of carrying out the provisions and
exercising the rights, remedies, powers and privileges granted by or referred to
in this Article, after the occurrence of an Event of Default and during the
continuation thereof the Borrower hereby irrevocably constitutes and appoints
the Agent its true and lawful attorney-in-fact, with full power of substitution,
to execute, acknowledge and deliver any instruments and do and perform any acts
which are referred to in this Article, in the name and on behalf of the
Borrower. The power vested in such attorney-in-fact is, and shall be deemed to
be, coupled with an interest and irrevocable.
11.6 Waivers. The Borrower hereby waives to the extent not prohibited by
applicable law and to the extent not expressly required hereunder (a) all
presentments, demands for performance, notices of nonperformance (except to the
extent required by the provisions hereof or of any of the other Loan Documents),
protests and notices of dishonor, (b) any requirement of diligence or promptness
on the Agent's or Lenders' part in the enforcement of its rights (but not
fulfillment of its obligations) under the provisions of this Agreement or any of
the other Loan Documents, and (c) any and all notices of every kind and
description which may be required to be given by any statute or rule of law and
any defense of any kind which the Borrower may now or hereafter have with
respect to its liability under this Agreement or under any of the other Loan
Documents.
12. SETOFF. After the occurrence and during the continuation of an Event of
Default, Borrower agrees that Lenders may set off on account of the Obligations
upon and against all of Borrower's accounts maintained with the Lenders
(excluding all non-Borrower accounts or trust accounts) deposits, credits and
other property, now or hereafter in the possession, custody, safekeeping or
control of Lenders or any entity related to or affiliated with Lenders or in
transit to any of them. After the occurrence of an Event of Default continuing
beyond any applicable grace periods, any such deposits (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or the
branch of the Lender where such deposits are held) credits and property may be
applied to or set off, without notice or compliance with any other condition
precedent (all of which is hereby waived) against the payment of the Obligations
and any and all other Obligations in such manner and order as Lenders in its
sole discretion may determine subject to ss.11.4.
13. EXPENSES. 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) any taxes (including any
interest and penalties in respect thereto) payable by the Lenders (other than
franchise taxes and taxes based upon the Lenders' net income or receipts),
including any taxes payable on or with respect to the transactions contemplated
by this Agreement, including any taxes payable by the Lenders after the Closing
Date (the Borrower hereby agreeing to indemnify the Lenders with respect
thereto), (c) the reasonable fees, expenses and disbursements of the Agent's
counsel or any local counsel to the Agent incurred in connection with the
preparation or interpretation of the Loan and the Loan Documents and other
instruments mentioned herein, the making of each Advance hereunder, and
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amendments, modifications, approvals, consents or waivers hereto or hereunder,
(d) the reasonable fees, expenses and disbursements of the Agent incurred in
connection with the preparation or interpretation of the Loan and the Loan
Documents and other instruments mentioned herein, and the making of each Advance
hereunder (including all reasonable appraisal fees, and surveyor fees subject to
the terms of ss.9.5 hereof), (e) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs) and the reasonable fees and
costs of consultants, accountants, auctioneers, receivers, brokers, property
managers, appraisers, investment bankers or other experts retained by the Agent
or the Lenders in connection with (i) the enforcement of or preservation of
rights under any of the Loan Documents against the Borrower or the
administration thereof after the occurrence and during the continuation of a
Default or Event of Default and (ii) any litigation, proceeding or dispute
arising hereunder or otherwise, in any way related to the Lenders' relationship
with the Borrower, (f) all reasonable fees, expenses and disbursements of the
Agent and the Lenders incurred in connection with UCC searches, UCC filings,
title rundowns, title searches or mortgage recordings in accordance with the
terms hereof; and (g) all reasonable costs associated with annual inspections,
or at any time after the occurrence and continuation of an Event of Default, all
reasonable expenses incurred by Agent for site visits for real property located
outside of the Commonwealth of Massachusetts which expenses shall not exceed
$10,000.00 per year. The covenants of this Section shall survive payment or
satisfaction of payment of all amounts owing with respect to the Notes.
14. INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless the
Agent and the Lenders from and against any and all claims, actions and suits,
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character arising out of this
Agreement or any of the other Loan Documents or the transactions contemplated
hereby and thereby including, without limitation, (a) any brokerage, leasing,
finders or similar fees, (b) any disbursement of the proceeds of any of the
Advances, (c) any condition of the properties comprising the Borrowing Base
Properties whether related to the quality of construction or otherwise, (d) any
actual or proposed use by the Borrower of the proceeds of any of the Advances,
(e) any actual or alleged violation of any Requirements or Project Approvals,
(f) any action taken by Lender to enforce its rights and remedies under the Loan
Documents, including the rights and remedies set forth in ss.11 hereof, or (g)
the Borrower entering into or performing this Agreement or any of the other Loan
Documents, in each case including, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding, and in each case except to the extent such
claims, actions, suits, liabilities, losses, damages or costs arise due to
Agent's or a Lender's gross negligence or intentional misconduct. In litigation,
or the preparation therefor, the Lenders shall be entitled to select its own
counsel and, in addition to the foregoing indemnity, the Borrower agrees to pay
within thirty (30) days the reasonable fees and expenses of such counsel. The
obligations of the Borrower under this Section shall survive the repayment of
the Loan and shall continue in full force and effect so long as the possibility
of such claim, action or suit exists. If, and to the extent that the obligations
of the Borrower under this Section 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.
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15. LIABILITY OF THE AGENT AND THE LENDERS. The liability of the Agent and the
Lenders to the Borrower for any breach of the terms of this Agreement by the
Agent and the Lenders shall not exceed a sum equal to the amount which the
Lenders shall be determined to have failed to advance in consequence of a breach
by the Lenders of its obligations under this Agreement, together with interest
thereon at the rate payable by the Borrower under the terms of the Notes for
Advances which the Borrower is to receive hereunder, computed from the date when
the Advance should have been made by the Lenders to the date when the Advance
is, in fact, made by the Lenders, and, upon the making of any such payment by
the Lenders to the Borrower, the same shall be treated as an Advance under this
Agreement, in the same fashion as any other Advance under the terms of this
Agreement. In no event shall the Lenders be liable to the Borrower, or anyone
claiming by, under or through the Borrower, for any special, exemplary, punitive
or consequential damages, whatever the nature of the breach of the terms of this
Agreement by the Agent or the Lenders, such damages and claims therefor being
expressly WAIVED by the Borrower.
Notwithstanding the foregoing, Borrower agrees that no action shall be
commenced by Borrower for any claim of any kind against the Agent or the Lenders
under or in connection with this Agreement unless written notice specifically
setting forth the claim of Borrower shall have been given to the Agent within
ninety (90) days after the occurrence of the event which Borrower alleges gives
rise to such claims, and failure to give such notice shall constitute a WAIVER
of any such claim.
16. RIGHTS OF THIRD PARTIES. All conditions to the performance of the
obligations of the Lenders under this Agreement, including the obligation to
make Advances, are imposed solely and exclusively for the benefit of the Lenders
and no other Person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that the
Lenders will refuse to make Advances in the absence of strict compliance with
any or all thereof and no other Person shall, under any circumstances, be deemed
to be a beneficiary of such conditions, any and all of which may be freely
waived in whole or in part by the Lender at any time if in its sole discretion
it deems it desirable to do so.
17. 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 pursuant
hereto and thereto shall be deemed to have been relied upon by the Lenders,
notwithstanding any investigation heretofore or hereafter made by it, and shall
survive the making by the Lenders of the Advances, as herein contemplated, and
shall continue in full force and effect either (i) so long as any amount due
under this Agreement or the Note or any of the other Loan Documents remains
outstanding or the Lenders have any obligation to make any Advances or (ii) for
such longer period as may be expressly provided for herein or in any other Loan
Document. All statements contained in any certificate or other paper delivered
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to the Agent or the Lenders at any time by or on behalf of any Person or any
Subsidiary thereof pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by such
Person.
18. THE AGENT AND THE LENDERS
18.1 Appointment of Agent. Each Lender hereby irrevocably designates and
appoints RBS Citizens, National Association as Agent of such Lender to act as
specified herein and in the other Loan Documents, and each such Lender hereby
irrevocably authorizes the Agent to take such actions, exercise such powers and
perform such duties as are expressly delegated to or conferred upon the Agent by
the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. The Agent agrees to act as
such upon the express conditions contained in this Article 18. The Agent shall
not have any duties or responsibilities except those expressly set forth herein
or in the other Loan Documents, nor shall it have any fiduciary relationship
with any Lender, and no implied covenants, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or otherwise exist against the
Agent. Except as specifically provided herein, the provisions of this Article 18
are solely for the benefit of the Agent and the Lenders, and the Borrower shall
not have any rights as a third party beneficiary of any of the provisions
hereof.
18.2 Administration of Loan by Agent. The Agent shall be responsible for
administering the Loan on a day-to-day basis. In the exercise of such
administrative duties, the Agent shall use the same diligence and standard of
care that is customarily used by the Agent with respect to similar loans held by
the Agent solely for its own account.
Each Lender delegates to the Agent the full right and authority on its
behalf to take the following specific actions in connection with its
administration of the Loan:
(i) to fund the Loan in accordance with the provisions of the Loan
Documents, but only to the extent of immediately available funds provided
to the Agent by the respective Lenders for such purpose;
(ii) to receive all payments of principal, interest, fees and other
charges paid by, or on behalf of, the Borrower and, except for fees to
which the Agent is entitled pursuant to the Loan Documents or otherwise,
to distribute all such funds to the respective Lenders as provided for
hereunder;
(iii) to keep and maintain complete and accurate files and records
of all material matters pertaining to the Loan, and make such files and
records available for inspection and copying by each Lender and its
respective employees and agents during normal business hours upon
reasonable prior notice to the Agent; and
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(iv) to do or omit doing all such other actions as may be reasonably
necessary or incident to the implementation, administration and servicing
of the Loan and the rights and duties delegated hereinabove.
18.3 Delegation of Duties. The Agent may execute any of its duties under
this Loan Agreement or any other Loan Document by or through its agent or
attorneys-in-fact, and shall be entitled to the advice of counsel concerning all
matters pertaining to its rights and duties hereunder or under the Loan
Documents. The Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
18.4 Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement or the other Loan Documents, except
for its or their gross negligence or willful misconduct. Neither the Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any recital, statement, representation or warranty made by the
Borrower or any of its officers or agents contained in this Agreement or the
other Loan Documents or in any certificate or other document delivered in
connection therewith; (ii) the performance or observance of any of the covenants
or agreements contained in, or the conditions of, this Agreement or the other
Loan Documents; (iii) the state or condition of any properties of the Borrower
or any other obligor hereunder constituting collateral for the Obligations of
the Borrower hereunder, or any information contained in the books or records of
the Borrower; (iv) the validity, enforceability, collectibility, effectiveness
or genuineness of this Loan Agreement or any other Loan Document or any other
certificate, document or instrument furnished in connection therewith; or (v)
the validity, priority or perfection of any lien securing or purporting to
secure the Obligations or the value or sufficiency of any collateral.
18.5 Reliance by Agent. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any notice, consent, certificate, affidavit, or
other document or writing believed by it to be genuine and correct and to have
been signed, sent or made by the proper person or persons, and upon the advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified (as to the Lenders) in failing or refusing to
take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or its shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of the taking or failing to take any such action. The Agent shall in all cases
be fully protected from the Lenders in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with any written
request of the Required Lenders, and each such request of the Required Lenders,
and any action taken or failure to act by the Agent pursuant thereto, shall be
binding upon all of the Lenders; provided, however, that the Agent shall not be
required in any event to act, or to refrain from acting, in any manner which is
contrary to the Loan Documents or to applicable law.
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18.6 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default unless the Agent has actual
knowledge of the same or has received notice from a Lender or the Borrower
referring to this Agreement, describing such Event of Default and stating that
such notice is a "notice of default". In the event that the Agent obtains such
actual knowledge or receives such a notice, the Agent shall give prompt notice
thereof to each of the Lenders. The Agent shall take such action with respect to
such Event of Default as shall be reasonably directed by the Required Lender
unless and until the Agent shall have received such direction, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to any such Event of Default as it shall deem advisable in
the best interest of the Lenders, provided, however, that the Agent shall not
accelerate the indebtedness under this Loan Agreement without the prior written
consent of the Required Lenders.
18.7 Lenders' Credit Decisions. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender, and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
investigation into the business, assets, operations, property, and financial and
other condition of the Borrower and has made its own decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon 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 determining whether or not
conditions precedent to closing any Loan hereunder have been satisfied and in
taking or not taking any action under this Agreement and the other Loan
Documents. Each Lender expressly acknowledges that is has relied upon its own
legal counsel in its consideration of its decision to enter into the Agreement
and the other Loan Documents and will so rely in regard to the implementation of
the transaction contemplated hereby and thereby and that it does not have any
lawyer-client relationship with Agent's counsel or counsels or any other Lenders
with respect thereto.
18.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent, ratably in proportion to their respective
Commitments, for (i) any amounts not reimbursed by the Borrower for which the
Agent is entitled to reimbursement by the Borrower under this Agreement or the
other Loan Documents, (ii) any other expenses incurred by the Agent on behalf of
the Lenders in connection with the preparation, execution, delivery,
administration, amendment, waiver and/or enforcement of this Agreement and the
other Loan Documents, and (iii) any liabilities, obligations, losses, damages,
penalties, action, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement or the
other Loan Documents or any other document delivered in connection therewith or
any transaction contemplated thereby, or the enforcement of any of the terms
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hereof or thereof, provided that no Lender shall be liable for any of the
foregoing to the extent that they arise from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the
action indemnified against until such additional indemnity is furnished.
18.9 Agent in its Individual Capacity. With respect to its Commitment as a
Lender, and the Loans made by it and the Note issued to it, the Agent shall have
the same rights and powers hereunder and any other Loan Document as any Lender
and may exercise the same as thought it were not the Agent, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include the
Agent in its individual capacity. The Agent and its subsidiaries and affiliates
may accept deposits from, lend money to, and generally engage in any kind of
commercial or investment banking, trust, advisory or other business with the
Borrower or any subsidiary or affiliate of the Borrower as if it were not the
Agent hereunder.
18.10 Successor Agent. The Agent may resign at any time by giving thirty
(30) days' prior written notice to the Lenders and Borrower. The Required
Lenders, for good cause, may remove Agent at any time by giving thirty (30)
days' prior written notice to the Agent, the Borrower and the other Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
by the Required Lenders and accepted such appoint within thirty (30) days after
the retiring Agent's giving notice of resignation or the Required Lenders'
giving notice of removal, as the case may be, then the retiring Agent may
appoint, on behalf of the Borrower and the Lenders, a successor Agent. Each such
successor Agent shall be a financial institution which meets the requirements of
an Eligible Assignee. Unless an Event of Default shall have occurred and be
continuing, any successor Agent shall be reasonably acceptable to the Borrower.
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 its duties and obligations hereunder and under
the other Loan Documents. After any retiring Agent's resignation hereunder, the
provisions of this Article 18 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent hereunder.
18.11 Duties in the 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 Required 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 respecting the
exercise of any 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 Required Lenders. The Agent
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shall be fully protected as to the Lenders in so acting or refraining from
acting upon the instruction of the Required Lenders, and such instruction shall
be binding upon all the Lenders. The Required 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
agree to 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 to be unlawful or commercially unreasonable in any applicable
jurisdiction. The Agent may, in its discretion but without obligation, in the
absence of direction from the Required Lenders, take such interim actions as it
believes necessary to preserve the rights of the Lenders hereunder, including
but not limited to petitioning a court for injunctive relief, appointment of a
receiver or preservation of the proceeds of any action taken. Each of the
Lenders acknowledges and agrees that 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.
18.12 Respecting Loans and Payments.
18.12.1 Procedures for Loans. Agent shall give written notice to
each Lender of each request for a conversion of an existing Loan from a
Variable Rate Advance to a Libor Advance, by facsimile transmission, hand
delivery or overnight courier, not later than 11:00 a.m. (Boston time) (i)
two (2) Business Days prior to any Libor Advance or conversion to a Libor
Advance, or (ii) one (1) Business Day prior to any Variable Rate Advance.
Each such notice shall be accompanied by a written summary of the request
for a Loan and shall specify (a) the date of the requested Loan, (b) the
aggregate amount of the requested Loan, (c) each Lender's pro rata share
of the requested Loan, and (d) the applicable interest rate selected by
Borrower with respect to such Loan, or any portion thereof, together with
the applicable Interest Period, if any, selected, or deemed selected, by
Borrower. Each Lender shall, before 11:00 a.m. (Boston time) on the date
set forth in any such request for a Loan, make available to Agent, at an
account to be designated by Agent at RBS Citizens, National Association in
Boston, Massachusetts, in same day funds, each Lender's ratable portion of
the requested Loan. After Agent's receipt of such funds and upon Agent's
determination that the applicable conditions to making the requested Loan
have been fulfilled, Agent shall make such funds available to Borrower as
provided for in this Loan Agreement. Promptly after receipt by Agent of
written request from any Lender, Agent shall deliver to the requesting
Lender a copy of the Borrower's request for Loans and the accompanying
certifications and such other instruments, documents, certifications and
approvals delivered by or on behalf of Borrower to Agent in support of the
requested Loan.
18.12.2 Nature of Obligations of Lenders. The obligations of the
Lenders hereunder are several and not joint. Failure of any Lender to
fulfill its obligations hereunder shall not result in any other Lender
becoming obligated to advance more than its Commitment Percentage of the
Loan, nor shall such failure release or diminish the obligations of any
other Lender to fund its Commitment Percentage provided herein.
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18.12.3 Payments to Agent. All payments of principal of and interest
on the Loans or the Notes shall be made to the Agent by the Borrower or
any other obligor or guarantor for the account of the Lenders in
immediately available funds as provided in the Notes and this Agreement.
The Agent agrees promptly to distribute to each Lender, on the same
Business Day upon which each such payment is made if possible, such
Lender's proportionate share of each such payment in immediately available
funds, except as otherwise expressly provided herein. The Agent shall upon
each distribution promptly notify Borrower of such distribution and each
Lender of the amounts distributed to it applicable to principal of, and
interest on, the proportionate share held by the applicable Lender. Each
payment to the Agent under the first sentence of this Section 18.12.3
shall constitute a payment by the Borrower to each Lender in the amount of
such Lender's proportionate share of such payment, and any such payment to
the Agent shall not be considered outstanding for any purpose after the
date of such payment by the Borrower to the Agent without regard to
whether or when the Agent makes distribution thereof as provided above. If
any payment received by the Agent from the Borrower is insufficient to pay
both all accrued interest and all principal then due and owing, the Agent
shall first apply such payment to all outstanding interest until paid in
full and shall then apply the remainder of such payment to all principal
then due and owing, and shall distribute the payment to each Lender
accordingly.
18.12.4 Distribution of Liquidation Proceeds. Subject to the terms
and conditions hereof, the Agent shall distribute all Liquidation Proceeds
in the order and manner set forth below:
First: To the Agent, towards any fees and any expenses for which the
Agent is entitled to reimbursement under this Agreement or the
other Loan Documents not theretofore paid to the Agent.
Second: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment
Percentages until all Lenders have been reimbursed for all
expenses which such Lenders have previously paid to the Agent
and not theretofore paid to such Lenders.
Third: To all applicable Lenders based upon their respective
Commitment Percentages until all Lenders have been paid in
full any Individual Lender Litigation Expenses.
Fourth: To all Lenders in accordance with their proportional share
based upon their respective Commitment Percentages until all
Lenders have been paid in full all principal and interest due
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to such Lenders under the Loan, with each Lender applying such
proceeds for purposes of this Agreement first against the
outstanding principal balance due to such Lender under the
Loan and then to accrued and unpaid interest due under the
Loan.
Fifth: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment
Percentages until all Lenders have been paid in full all other
amounts due to such Lenders under the Loan including, without
limitation, any costs and expenses incurred directly by such
Lenders to the extent such costs and expenses are reimbursable
to such Lenders by the Borrower under the Loan Documents.
Sixth: To the Borrower or such third parties as may be entitled to
claim Liquidation Proceeds.
18.12.5 Adjustments. If, after Agent has paid each Lender's
proportionate share of any payment received or applied by Agent in respect
of the Loan, that payment is rescinded or must otherwise be returned or
paid over by Agent, whether pursuant to any bankruptcy or insolvency law,
sharing of payments clause of any loan agreement or otherwise, such Lender
shall, at Agent's request, promptly return its proportionate share of such
payment or application to Agent, together with the Lender's proportionate
share of any interest or other amount required to be paid by Agent with
respect to such payment or application.
18.12.6 Setoff. If any Lender (including the Agent), acting in its
individual capacity, shall exercise any right of setoff against a deposit
balance or other account of the Borrower held by such Lender on account of
the obligations of the Borrower under this Agreement, such lender shall
remit to the Agent all such sums received pursuant to the exercise of such
right of setoff, and the Agent shall apply all such sums for the benefit
of all of the Lenders hereunder in accordance with the terms of this
Agreement.
18.12.7 Distribution by Agent. If in the opinion of the Agent
distribution of any amount received by it in such capacity hereunder or
under the Notes or under any of the other Loan Documents might involve any
liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent
jurisdiction or has been resolved by the mutual consent of all Lenders. In
addition, the Agent may request full and complete indemnity, in form and
substance satisfactory to it, prior to making any such distribution. 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 to the same in such manner and to such persons as shall be determined
by such court.
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18.13 Delinquent Lender. If for any reason any Lender shall fail or refuse
to abide by its obligations under the Agreement, including without limitation
its obligation to make available to Agent its pro rata share of any Loan,
expenses or setoff (a "Delinquent Lender") and such failure is not cured within
ten (10) days of receipt from the Agent of written notice thereof, then, in
addition to the rights and remedies that may be available to Agent, other
Lenders, the Borrower or any other party at law or in equity, and not at
limitation thereof, (i) such Delinquent Lender's right to participate in the
administration of, or decision-making rights related to, the Loans, this
Agreement or the other Loan Documents shall be suspended during the pendency of
such failure or refusal, and (ii) a Delinquent Lender shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on account of
the outstanding Loans, interest, fees or otherwise, to the remaining
non-delinquent Lenders for application to, and reduction of, their proportionate
shares of the outstanding Loans until, as a result of application of such
assigned payments the Lenders' respective pro rata shares of all the outstanding
Loans shall have returned to those in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency. The Delinquent Lender's decision-making and participation rights to
payments as set forth in clauses (i) and (ii) hereinabove shall be restored only
upon the payment by the Delinquent Lender of its pro rata share of any Loans or
expenses as to which it is delinquent, together with interest thereon at the
Default Rate from the date when originally due until the date upon which any
such amounts are actually paid.
The non-delinquent Lenders shall also have the right, but not the
obligation, in their respective, sole and absolute discretion, to acquire for no
cash consideration (pro rata, based on the respective Commitments of those
Lenders electing to exercise such right) the Delinquent Lender's Commitment to
fund future Loans (the "Future Commitment"). Upon any such purchase of the pro
rata share of any Delinquent Lender's Future Commitment, the Delinquent Lender's
share in future Loans and its rights under the Loan Documents with respect
thereto shall terminate on the date of purchase, and the Delinquent Lender shall
promptly execute all documents reasonably requested to surrender and transfer
such interest, including, if so requested, an Assignment and Acceptance. Each
Delinquent Lender shall indemnify Agent and each non-delinquent Lender from and
against any and all loss, damage or expenses, including but not limited to
reasonable attorneys' fees and funds advanced by Agent or by any non-delinquent
Lender, on account of an Delinquent Lender's failure to timely fund its pro rata
share of a Loan or to otherwise perform its obligations under the Loan
Documents.
18.14 Holders. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have been
filed with the Agent. Any request, authority or consent of any person or entity
who, at the time of making such request or giving such authority or consent, is
the holder of any Note shall be conclusive and binding on any subsequent holder,
transferee or endorsee, as the case may be, of such Note or of any Note or Notes
issued in exchange therefor.
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18.15 Assignment and Participation.
18.15.1 Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees (or one
or more banks or other financial institutions while an Event of Default
exists) all or a portion 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), upon satisfaction of the following conditions:
(a) each of the Agent and the Borrower shall have given its prior written
consent to such assignment (provided that, in the case of the Borrower,
such consent will not be unreasonably withheld and shall not be required
if a Default or Event of Default shall have occurred and be continuing or
if an assignment is to an Eligible Assignee), (b) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning
Lender's rights and obligations under this Agreement, (c) prior to the
occurrence of an Event of Default and while same is continuing each
assignment shall be in an amount that is at least Five Million Dollars
($5,000,000.00) and is a whole multiple of One Million Dollars
($1,000,000.00), (d) the parties of such assignment shall execute and
deliver to the Agent, for recording in the Register (as hereinafter
defined), an Assignment and Acceptance, substantially in the form of
Exhibit E hereto (an "Assignment and Acceptance"), 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 Acceptance, which effective date shall be at least five (5) Business
Days after the execution thereof, (x) the assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder, and (y)
the assigning Lender shall, to the extent provided in such assignment and
upon payment to the Agent of the registration fee referred to in Section
18.15.3, be released from its obligations under this Agreement.
18.15.2 Certain Representations and Warranties, Limitations,
Covenants. By executing and delivering an Assignment and Acceptance, the
parties to the assignment thereunder confirm to and agree with each other
and the other parties hereto as follows:
(i) 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, express or implied, 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;
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(ii) the assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial
condition of the Borrower and its affiliates, related entities or
subsidiaries or any other person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance
by the Borrower or any other person primarily or secondarily liable
in respect of any of the Obligations or 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;
(iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent financial
statement provided by the Borrower as required by the terms of this
Agreement, together with such other documents and information as it
has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
(iv) 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;
(v) such assignee represents and warrants that it is an
Eligible Assignee if required hereunder;
(vi) 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;
(vii) 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
(viii) such assignee represents and warrants that it is
legally authorized to enter into such Assignment and Acceptance.
18.15.3 Register. The Agent shall maintain a copy of each Assignment
and Acceptance 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 Percentage of, and principal amount of the Loans 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
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and the Lenders may treat each person whose name is recorded in the
Register as a Lender hereunder available for inspection by the Borrower
and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Lender
agrees to pay to the Agent a registration fee in the sum of Three Thousand
Five Hundred Dollars ($3,500.00).
18.15.4 New Notes. Upon its receipt of an Assignment and Acceptance
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). Within
five (5) Business Days after receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible Assignee
pursuant to such Assignment and Acceptance 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 Acceptance and shall otherwise
be substantially in the form of the assigned Notes. The surrendered Notes
shall be canceled and returned to the Borrower.
18.15.5 Participations. Each Lender may sell participations to one
or more banks or other financial institutions 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 a minimum
amount of Five Million Dollars ($5,000,000.00), (b) as long as no Event of
Default exists each participant shall meet the requirements of an Eligible
Assignee, (c) any such sale or participation shall not affect the rights
and duties of the selling Lender hereunder to the Borrower, and (d) the
only rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of the
Loan Documents shall be the rights to approve waivers, amendments or
modifications that would reduce the principal of or the interest rate on
any Loans, extend the term or increase the amount of the Commitment of
such Lender as it relates to such participant, reduce the amount of any
commitment fees to which such participant is entitled or extend any
regularly scheduled payment date for principal or interest.
18.16 Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard and customary 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; provided that such assignees or
participants or potential assignees or participants shall agree (a) to
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treat in confidence such information unless such information otherwise
becomes public knowledge, (b) not to disclose such information to a third
party except as required by law or legal process and (c) not to make use
of such information for purposes of transactions unrelated to such
contemplated assignment or participation. The Agent and the Lenders agree
to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to it and its affiliates'
directors, officers, employees and agents, including accountants, legal
counsel and other advisors (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, (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 (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 written 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
or the Lenders on a nonconfidential basis from a source other than the
Borrower. For purposes of this Section, "Information" means all
information received from the Borrower relating to the Borrower or any of
its businesses, other than any such information that is available to the
Agent or the Lenders on a nonconfidential basis prior to disclosure by the
Borrower, provided that, in the case of information received from the
Borrower after the date hereof, such information either (x) consists of
financial statements or (y) is clearly identified at the time of delivery
as confidential. 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.
18.17 Miscellaneous Assignment Provisions. Any assigning Lender shall
retain its rights to be indemnified pursuant to Section 14 with respect to any
claims or actions arising prior to the date of such assignment. If any assignee
Lender is not incorporated under the laws of the United States of America or any
state thereof, it shall prior to the date on which any interest or fees
are-payable hereunder or under any of the other Loan Documents for its account,
deliver to the Borrower and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes. Anything
contained in this Section 18.17 to the contrary notwithstanding, any Lender 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 ss.4 of the Federal Reserve Act, 12
U.S.C.ss.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.
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18.18 Amendment, Waiver, Consent, Etc. No term or provision of this
Agreement or any other Loan Document may be changed, waived, discharged or
terminated, nor may any consent required or permitted by this Agreement or any
other Loan Document be given, unless such change, waiver, discharge, termination
or consent receives the written approval of the Required Lenders, unless the
Agent is specifically allowed to give such consent, amendment or waiver pursuant
to the terms hereof. The Borrower shall be required to give its written consent
to any amendment of this Agreement and the Loan Documents.
Notwithstanding the foregoing, the unanimous written approval of all the
Lenders (other than a Delinquent Lender) shall be required with respect to any
proposed amendment, waiver, discharge, termination, or consent which:
(i) has the effect of (a) extending the final scheduled
maturity or the date of any amortization payment of any Loan or
Note, (b) reducing the rate or extending the time of payment of
interest or fees thereon, (c) increasing or reducing the principal
amount thereof, or (d) otherwise postponing or forgiving any
indebtedness thereunder,
(ii) amends, modifies or waives any provisions of this
paragraph.
(iii) changes the percentage specified in the definition of
Required Lenders,
(iv) except as otherwise provided in this Agreement, change
the amount of any Lender's Commitment or Commitment Percentage, or
(v) releases or waives any of the indemnifications provided in
the Loan Documents;
and provided, further, that without the consent of the Agent, no such action
shall amend, modify or waive any provision of this Article 18.18 or any other
provisions of any Loan Document which relates to the rights or obligations of
the Agent.
18.19 Deemed Consent or Approval. With respect to any requested amendment,
waiver, consent or other action which requires the approval of the Required
Lenders or all of the Lenders, as the case may be in accordance with the terms
of this Agreement, or if the Agent is required hereunder to seek or desires to
seek, the approval of the Required Lenders or all of the Lenders, as the case
may be, prior to undertaking a particular action or course of conduct, the Agent
in each such case shall provide each Lender with written notice of any such
request for amendment, waiver or consent or any other requested or proposed
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action or course of conduct, accompanied by such detailed background information
and explanations as may be reasonably necessary to determine whether to approve
or disapprove such amendment, waiver, consent or other action or course of
conduct, the Agent may (but shall not be required to) include in any such
notice, printed in capital letters or boldface type a legend substantially to
the following effect;
"THIS COMMUNICATION REQUIRES IMMEDIATE RESPONSE, FAILURE TO RESPOND WITHIN
TEN (10) CALENDAR DAYS FROM THE RECEIPT OF THIS COMMUNICATION SHALL
CONSTITUTE A DEEMED APPROVAL BY THE ADDRESSEE OF THE ACTION REQUESTED BY
THE BORROWER OR THE COURSE OF CONDUCT PROPOSED BY THE AGENT AND RECITED
ABOVE."
and if the foregoing legend is included by the Agent in its communication, a
Lender shall be deemed to have approved or consented to such action or course of
conduct for all purposes hereunder if such Lender fails to object to such action
or course of conduct by written notice to the Agent within ten (10) calendar
days of such Lender's receipt of such notice.
19. NO ASSIGNMENT BY THE BORROWER . The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior approval of the Lenders.
20. RELATIONSHIP. The relationship between the Lenders and the Borrower is
solely that of a lender and borrower, and nothing contained herein or in any of
the other Loan Documents shall in any manner be construed as making the parties
hereto partners, joint venturers or any other relationship other than lender and
borrower.
21. NOTICES. Except as otherwise provided herein or in any other Loan Document,
each notice, demand, election or request provided for or permitted to be given
pursuant to this Agreement (hereinafter in this Section referred to as "Notice")
must be in writing and shall be deemed to have been properly given or served by
personal delivery or by sending same by overnight courier, by depositing same in
the United States Mail, postpaid and registered or certified, return receipt
requested, or by facsimile transmission, and addressed as follows:
If to the Agent:
RBS Citizens, National Association
28 State Street
Boston, Massachusetts 02109
Attention: Mr. Daniel R. Ouellette
Senior Vice President
Facsimile: (617) 725-5695
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with a copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: James H. Lerner, Esq.
Facsimile: (617) 574-7607
If to the Borrower:
Franklin Street Properties Corp.
401 Edgewater Place
Suite 200
Wakefield, Massachusetts 01880-6210
Attention: John G. Demeritt
Facsimile: (781) 246-2807
with a copy to:
Wilmer, Cutler, Pickering, Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Kenneth A. Hoxsie, Esq.
Facsimile: (617) 526-5000
If to the Lenders:
RBS Citizens, National Association
28 State Street
Boston, Massachusetts 02109
Attention: Mr. Daniel R. Ouellette
Senior Vice President
Facsimile: (617) 725-5695
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Bank of America, N.A.
One Federal Street
Boston, Massachusetts 02110
Attention: Mr. James J. Magaldi
Senior Vice President
Facsimile: (617) 346-5025
Chevy Chase Bank, F.S.B
7501 Wisconsin Avenue - 12th Floor
Bethesda, Maryland 20814
Attention: Ms. Alyssa Case
______________________
Facsimile: (240) 497-7714
Wachovia Bank, National Association
One Boston Place, MA 9200
201 Washington Street, 27th Floor
Boston, Massachusetts 02108
Attention: Mr. Lein H. Tung
Senior Vice President
Facsimile: (617) 603-4228
with a copy to:
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
Attention: James H. Lerner, Esq.
Facsimile: (617) 574-7607
or to such other Lenders as provided in the Assignment and Acceptance.
Each Notice shall be effective upon being personally delivered, receipt of
facsimile transmission or upon being sent by overnight courier or upon being
deposited in the United States Mail as aforesaid. However, (i) the time period
in which a response to such Notice must be given or any action taken with
respect thereto (if any), and (ii) the commencement of a default period, to the
extent notice is required hereunder, shall commence to run from the date of
receipt if personally delivered, sent by facsimile transmission, or sent by
overnight courier, or if so deposited in the United States Mail, the earlier of
three (3) Business Days following such deposit or the date of receipt as
disclosed on the return receipt. Rejection or other refusal to accept or the
inability to deliver because of changed address for which no Notice was given
shall be deemed to be receipt of the Notice sent. By giving at least thirty (30)
days' prior Notice thereof, the Borrower or the Lender shall have the right from
time to time and at any time during the term of this Agreement to change their
respective addresses and each shall have the right to specify as its address any
other address within the United States of America.
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22. GOVERNING LAW. This Agreement and each of the other Loan Documents, except
as otherwise specifically provided therein, are contracts under the laws of the
Commonwealth of Massachusetts and shall for all purposes be construed in
accordance with and governed by the laws of said Commonwealth (excluding the
laws applicable to conflicts or choice of law).
23. CONSENT TO JURISDICTION; WAIVERS. THE BORROWER, AGENT AND THE LENDERS EACH
HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMIT TO NONEXCLUSIVE PERSONAL
JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND (B) WAIVE ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY STATE
(I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY, (II) TO OBJECT TO JURISDICTION
WITHIN THE COMMONWEALTH OF MASSACHUSETTS OR VENUE IN ANY PARTICULAR FORUM WITHIN
THE COMMONWEALTH OF MASSACHUSETTS, AND (III) TO THE RIGHT, IF ANY, TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN ACTUAL DAMAGES. THE BORROWER, AGENT AND THE LENDERS EACH AGREE THAT,
IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE
LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE
BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED DIRECTED TO THE
BORROWER, AGENT AND THE LENDERS AT THE ADDRESSES SET FORTH IN ss.21 ABOVE, AND
SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL BE SO
MAILED. NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT THE AGENT AND THE
LENDERS FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS
AGAINST THE BORROWER, AND AGAINST ANY PROPERTY OF THE BORROWER, IN ANY OTHER
STATE. INITIATING SUCH SUIT, ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY
STATE SHALL IN NO EVENT CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN
THAT THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN THE RIGHTS AND
OBLIGATIONS OF THE BORROWER, AGENT AND THE LENDERS HEREUNDER OR THE SUBMISSION
HEREIN BY THE BORROWER TO NONEXCLUSIVE PERSONAL JURISDICTION WITHIN THE
COMMONWEALTH OF MASSACHUSETTS.
24. PREFERENCES. Agent and Lenders shall have no obligation to marshal any
assets in favor of Borrower or any other party or against or in payment of any
or all of the obligations of Borrower pursuant to this Agreement, the Note or
any other Loan Document. Lenders shall have the continuing and exclusive right
to apply or reverse and reapply any and all payments by Borrower to any portion
of such obligations. To the extent Borrower makes a payment or payments to
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Lenders for Borrower's benefit, which payment or proceeds or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other Person under
any bankruptcy law, state or federal law, the obligations or part thereof
intended to be satisfied shall be revived and continue in full force and effect,
as if such payment or proceeds had not been received by Lenders.
25. RULES OF INTERPRETATION. The following rules of interpretation shall govern:
(a) A reference to any Loan Document, agreement, budget, document or
schedule shall include such agreement, budget, document or schedule
as revised, amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) A reference to any Exhibit hereto shall be deemed to specifically
incorporate the terms and provisions of such Exhibit herein.
(c) The singular includes the plural and the plural includes the
singular.
(d) A reference to any law includes any amendment or modification to
such law.
(e) A reference to any Person includes its permitted successors and
permitted assigns.
(f) Accounting terms not otherwise defined herein have the meaning
assigned to them by generally accepted accounting principles applied
on a consistent basis by the accounting entity to which they refer.
(g) The words "approval" and "approved", as the context so determines,
means an approval in writing given to the Person seeking approval
after full and fair disclosure to the Person giving approval of all
material facts necessary in order to determine whether approval
should be granted.
(h) Reference to a particular "ss." refers to that Section of this
Agreement unless otherwise indicated.
(i) Use of the word "including" shall mean "including, without
limitation" unless the context otherwise requires.
(j) The term Borrower shall be deemed to include each Borrower
individually and collectively and all definitions, representations,
warranties, covenants, rights and remedies provided for herein apply
to each entity individually and collectively except as the context
otherwise provides. Further, any and all references to Obligations
shall mean and refer to the joint Obligations of each entity to the
Lender. Any and all Advances hereunder shall be advanced to one of
the entities but shall represent an Obligation of all of the
entities to the Lenders.
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26. HEADINGS. The captions in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
27. 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.
28. ENTIRE AGREEMENT. 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 ss.18.18.
29. TIME OF THE ESSENCE. Time is of the essence with respect to each and every
covenant, agreement and obligation of the Borrower under this Agreement and the
other Loan Documents.
30. 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.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
WITNESS FRANKLIN STREET PROPERTIES CORP.,
a Maryland corporation
/s/ Scott H. Carter By: /s/ George J. Carter
- ---------------------- -------------------------
Scott H. Carter George J. Carter
President and Chief Executive Officer
FSP HOLDINGS LLC,
a Delaware limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
President and Chief Executive Officer
FSP INVESTMENTS LLC,
a Massachusetts limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP PROPERTY MANAGEMENT LLC,
a Massachusetts limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
Executive Vice President
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FSP PROTECTIVE TRS CORP.,
a Massachusetts corporation
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP HILLVIEW CENTER LIMITED PARTNERSHIP, a
Massachuetts limited partnership
By: FSP Holdings LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President and Chief Executive Officer
FSP MONTAGUE BUSINESS CENTER CORP.,
a Delaware corporation
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP GREENWOOD PLAZA CORP.,
a Delaware corporation
By: /s/ George J. Carter
-------------------------
George J. Carter
President
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FSP 380 INTERLOCKEN CORP.,
a Delaware corporation
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP 390 INTERLOCKEN LLC,
a Delaware limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP BLUE LAGOON DRIVE LLC,
a Delaware limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP ONE OVERTON PARK LLC,
a Delaware limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP NORTHWEST POINT LLC,
a Delaware limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
President
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FSP RIVER CROSSING LLC,
a Delaware limited liability company
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP BOLLMAN PLACE LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: FSP Holdings LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President and Chief Executive Officer
FSP SOUTHFIELD CENTRE LIMITED PARTNERSHIP, a
Massachusetts limited partnership
By: FSP Holdings LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President and Chief Executive Officer
FSP FOREST PARK IV NC LIMITED PARTNERSHIP, a
North Carolina limited partnership
By: FSP Forest Park IV LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President
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FSP PARK SENECA LIMITED PARTNERSHIP,
a Massachusetts limited partnership
By: FSP Holdings LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President and Chief Executive Officer
FSP ADDISON CIRCLE LIMITED PARTNERSHIP,
a Texas limited partnership
By: FSP Addison Circle LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP AUSTIN N.W. LIMITED PARTNERSHIP,
a Massachuetts limited partnership
By: FSP Holdings LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President and Chief Executive Officer
FSP COLLINS CROSSING LIMITED PARTNERSHIP, a
Texas limited partnership
By: FSP Collins Crossing LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President
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FSP ELDRIDGE GREEN LIMITED PARTNERSHIP, a
Texas limited partnerhip
By: FSP Eldridge Green LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP LIBERTY PLAZA LIMITED PARTNERSHIP,
a Texas limited partnership
By: FSP Holdings LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President and Chief Executive Officer
FSP PARK TEN LIMITED PARTNERSHIP,
a Texas limited partnership
By: FSP Park Ten LLC, its General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President
FSP WILLOW BEND OFFICE CENTER LIMITED
PARTNERSHIP, a Texas limited partnership
By: FSP Willow Bend Office Center LLC, its
General Partner
By: /s/ George J. Carter
-------------------------
George J. Carter
President
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FSP INNSBROOK CORP,
a Delaware corporation
By: /s/ George J. Carter
-------------------------
George J. Carter
President
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RBS CITIZENS, NATIONAL ASSOCIATION,
Agent and Lender
By: /s/ Daniel R. Ouellette
--------------------------
Name: Daniel R. Ouellette
Title: Senior Vice President
-72-
BANK OF AMERICA, N.A., Lender
By: /s/ James J. Magaldi
--------------------------
Name: James J. Magaldi
Title: Senior Vice President
-73-
CHEVY CHASE BANK, F.S.B., Lender
By: /s/ Alyssa A. Case
--------------------------
Name: Alyssa A. Case
Title: Commercial Real Estate Officer
-74-
WACHOVIA BANK, NATIONAL ASSOCIATION, Lender
By: /s/ Filomena R. Cerqueira
--------------------------
Name: Filomena R. Cerqueira
Title: Vice President
-75-
EXHIBIT A
JOINDER AGREEMENT
___________, _______
Reference is made to the Third Amended and Restated Loan Agreement, dated
as of October __, 2007 (as amended on the date hereof and as from time to time
further amended and in effect, the "Loan Agreement"), among Franklin Street
Properties Corp. ("FSP"), those other Borrowers listed on Schedule 2 (as
amended) of the Loan Agreement and each other Borrower (collectively, the
"Borrower") which from time to time is a party to the Loan Agreement, and RBS
Citizens, National Association as agent (the "Lender"). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Loan Agreement.
In consideration of and as an inducement to the Lender continuing to
provide financing under the Loan Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
________________________ (the "Additional Borrower"), a Wholly Owned Subsidiary
of FSP, hereby acknowledges and agrees to the terms and conditions of the Loan
Agreement and the Note, joins in the agreements of the Borrower under the Loan
Agreement and the Note and agrees that all Obligations of the Borrower under the
Loan Agreement and the Note shall be the obligations, jointly and severally, of
the Additional Borrower with the same force and effect as if the Additional
Borrower was originally a Borrower under the Loan Agreement and an original
signatory to the Loan Agreement and the Note. Furthermore, the Additional
Borrower shall have all the liabilities and obligations of a maker under the
Note.
The Additional Borrower further agrees that its liability hereunder is
direct and primary and may be enforced by the Lender before or after proceeding
against any other Borrower.
The Additional Borrower shall deliver to the Lender, with respect to such
Additional Borrower's property(ies), current and historical financial statements
reasonably requested by Lender with respect to the Additional Borrower, within
five (5) Business Days of any such request. Such statements shall not be subject
to Lender's approval or satisfaction.
Exhibit A-1
The undersigned hereby represents and warrants to the Lender 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 the Obligations
under the Loan Agreement and the Note. This Joinder Agreement shall be binding
upon the undersigned and its successors and assigns and shall inure to the
benefit of the Lender and its successors and assigns.
Executed as a sealed instrument as of the __ day of __________, ______.
______________________________
By: _________________________
Its: _________________________
By:______________________
Name: ________________
Its: ________________
Acknowledged and Agreed:
Franklin Street Properties Corp., as agent for each Borrower
By: _____________________(SEAL)
Exhibit A-2
SCHEDULE 1
DEFINITIONS
Acquisition. The acquisition (by merger, consolidation, direct purchase or
otherwise) by FSP, or a Wholly Owned Subsidiary, of ownership of real property,
including without limitation the acquisition of preferred stock interests or
other similar interests in an owner of real property established or sponsored by
FSP, the Borrower, or an affiliate.
Adjusted Libor Rate. The term "Adjusted Libor Rate" means a per annum rate
equal at all times to the Libor Lending Rate plus one hundred (100) basis
points.
Advance. Any disbursement, including a readvance of any amount previously
repaid by the Borrower, of the proceeds of the Loan made or to be made by the
Lenders pursuant to the terms of this Agreement.
Affiliate Disposition. Any transaction whereby a Borrower, or an
affiliate, transfers or sells property owned by it to a Syndication REIT, and
such Syndication REIT transfers or sells shares of preferred stock or similar
interests in such Syndication REIT to such Borrower or affiliate.
Agent. RBS Citizens acting as agent for the Lenders.
Agreement. This Loan Agreement, including the Schedules and Exhibits
hereto.
Annual Fee. See ss.4.
Asbestos-Containing Materials. Shall mean any material containing any
asbestos or presumed to contain asbestos at levels regulated under applicable
Environmental Laws.
Availability. The difference between (i) the Loan Amount, and (ii) the
aggregate of (x) the aggregate Stated Amount under all outstanding L/Cs, and (y)
the unpaid principal balance owed under the Revolving Facility.
Balance Sheet Date. December 31, 2006.
Baltimore Property. The office property located at 120 East Baltimore
Street, Baltimore, Maryland, which as of the Closing Date is a 1031 Property
owned by FSP East Baltimore Street LLC.
Banking Day. The term "Banking Day" means any day other than a Saturday,
Sunday, legal holiday, or a day on which banks are not required or authorized by
law to close in the city in which Agent's principal office is situated.
Schedule 1-1
BOA. Bank of America, N.A.
Borrower. As defined in the preamble hereto. All definitions,
representations, warranties, covenants, rights and remedies provided for herein
apply to each entity individually and collectively except as the context
otherwise provides. Further, any and all references to Obligations shall mean
and refer to the joint Obligations of each entity to the Lender. Any and all
Advances hereunder shall be advanced to one of the entities but shall represent
an Obligation of all of the entities to the Lenders.
Borrowing Base Properties. Collectively, the properties listed on Exhibit
H - Borrowing Base Properties and other properties as may be amended as provided
in Section 9.15.
Business Day.
(a) any day which is neither a Saturday or Sunday nor a legal holiday on
which commercial banks are authorized or required to be closed in
Boston, Massachusetts;
(b) when such term is used to describe a day on which a borrowing,
payment, prepaying, or repaying is to be made in respect of any
LIBOR Advance, any day which is: (i) neither a Saturday or Sunday
nor a legal holiday on which commercial banks are authorized or
required to be closed in New York City; and (ii) a London Banking
Day; and
(c) when such term is used to describe a day on which an interest rate
determination is to be made in respect of any LIBOR Advance, any day
which is a London Banking Day.
CBD Properties. Property or properties located in the downtown section of
a city, generally consisting of retail, office, hotel, entertainment and
governmental land uses with some high density housing. As of the date hereof,
(a) the Borrower does not own any CBD Properties, (b) the Baltimore Property is
a CBD Property.
Chevy. Chevy Chase Bank, F.S.B.
Citizens. RBS Citizens, National Association.
Closing Date. The first date on which the conditions set forth in ss.6
have been satisfied.
Co-Agent. BOA.
Code. The Internal Revenue Code of 1986 and the regulations thereunder,
all as amended and in effect from time to time.
Schedule 1-2
Commitment. With respect to each Lender, the amount set forth on Exhibit F
hereto as the amount of such Lender's commitment to make advances to the
Borrower, as may be amended from time to time by the Agent as provided in
Section 18.
Commitment Percentage. With respect to each Lender, the percentage set
forth on Exhibit F hereto as such Lender's percentage of the aggregate
Commitments of all of the Lenders, as may be amended from time to time by the
Agent as provided in Section 18.
Consolidated Indebtedness. After elimination of duplication, for the
Borrower, all obligations, contingent and otherwise, that in accordance with
generally accepted accounting principles should be classifed 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 including all outstanding L/Cs; (b) all
liabilities secured by any mortgage, pledge, security interest, lien, charge, or
other encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed; (c) all
liabilities under capitalized leases; (d) all guaranties, endorsements and other
contingent obligations whether direct or indirect in respect of Indebtedness of
others, including the obligations to reimburse the issuer in respect of any
letters of credit, and (e) all unsecured Indebtedness.
Consolidated Total Asset Value. The value of all properties owned by the
Borrower or subsidiaries by utilizing a 8.25% capitalization rate (7% for CBD
Properties) based on the most recent quarter's Net Operating Income from
Borrowing Base Properties times 4, plus the book value of all other tangible
assets (including stock and mortgage Syndication REITS). In addition, in
determining Consolidated Total Asset Value for the first 12 months after an
acquisition, the Borrower may include such newly acquired property at either the
cost basis value or the capitalization rate value. Further, in valuing
development properties, and at Borrower's election, either a cost basis value or
a capitalization rate (annualized as appropriate) value will be applied to such
properties based on the most recent quarter's Net Operating Income times 4.
Debt Service Charges. For any fiscal period of the Borrower, the sum of
the expenses of the Borrower for such period for (x) Debt Service on the Loan,
and (without duplication) any other principal and interest on Consolidated
Indebtedness, and (y) fees payable based on the outstanding Loan balance and L/C
fees for the reporting period under the Loan Documents, or in connection with
any other Consolidated Indebtedness secured by all or any part of the Borrowing
Base Properties, in each case determined in accordance with generally accepted
accounting principles.
Debt Service on the Loan. Shall mean the principal and interest payable on
the outstanding Loan balance for the reporting period based upon the greater of:
(i) the actual interest rate in effect under the Loan for the test period plus
principal payments based upon a twenty (20) year amortization schedule, or (ii)
the greater of (I) the rate for the ten (10) year United States Treasury
obligations in amounts approximating the principal balance of the Loan
(including the Stated Amount of all outstanding L/Cs) during the test period
plus one hundred eighty five (185) basis points, or (II) seven and one-half
percent (7.5%) per annum, plus in the case of (I) and (II), principal payments
based upon a twenty (20) year amortization schedule.
Schedule 1-3
Default. A condition or event which would, with either the giving of
notice or lapse of time or both, constitute an Event of Default.
Default Rate. See ss.2.5.
Distribution. The (i) declaration or payment of any dividend, (ii)
distribution of cash or other property, (iii) purchase, redemption, or other
retirement (directly or indirectly), (iv) repayment of any loan to any Person
directly or indirectly holding an interest in Borrower, or (iv) other
distribution, in each case, of, on or in respect of any shares of any class of
capital stock, partnership interests, or other beneficial or ownership interests
of the Borrower.
Drawdown Date. The date that an Advance is made hereunder.
Eligible Assignee. Any of (a) a commercial bank organized under the laws
of the United States, or any State thereof or the District of Columbia. and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
which is a member of the organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any country
which is a member of the OECD; and (e) any Lender.
Environmental Laws. Shall mean the portions of any and all applicable
federal, state and local statutes, regulations and ordinances pertaining to
Hazardous Substances or Asbestos-Containing Materials or both.
Environmental Report(s). The environmental site assessment reports and any
supplemental reports, test and materials furnished to the Agent.
ERISA Plan. Any employee benefit, employee pension, or multiemployer plan
within the meaning of the Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
Event of Default. See ss.11.
FSP. As defined in the Preamble.
Schedule 1-4
Fee Letter. Means the fee letter of even date between the Agent and the
Borrower, as may be amended from time to time.
Future Commitment as defined in Section 18.13.
Generally accepted accounting principles or GAAP. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (b) consistently applied with past financial statements of the Borrower
adopting the same principles; provided that a certified public accountant would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
Government Authority. The United States of America, the State in which any
of the properties comprising the Borrowing Base Properties is located, the city
or town in which the Land is located, and any political subdivision agency,
authority, department, commission, board, bureau, or instrumentality of any of
them.
Hazardous Substances. Shall mean any and all hazardous, explosive,
corrosive, flammable, carcinogenic, toxic, infectious or radioactive substances,
pollutants, contaminants, wastes or materials listed or defined by any
applicable federal, state or local statutes, regulations or ordinances as
hazardous or toxic and specifically shall include petroleum oil and its
fractions.
Hedging Contracts means, interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, or any other agreements or
arrangements entered into between the Borrower and the Agent and designed to
protect the Borrower against fluctuations in interest rates or currency exchange
rates.
Hedging Obligations means, with respect to the Borrower, all liabilities
of the Borrower to the Agent under Hedging Contracts.
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles 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; (b) all liabilities
secured by any mortgage, pledge, security interest, lien, charge, or other
encumbrance existing on property owned or acquired subject thereto, whether or
not the liability secured thereby shall have been assumed; (c) all liabilities
under capitalized leases; (d) all guaranties, endorsements and other contingent
obligations whether direct or indirect in respect of Indebtedness of others,
including the obligations to reimburse the issuer in respect of any letters of
credit, and (e) all unsecured Indebtedness.
Schedule 1-5
Individual Lender Litigation Expenses means all costs and expenses
(including reasonable attorneys' fees) incurred by any individual Lender in any
litigation concerning the Loan in which such Lender has been named as a party
defendant, but only to the extent such costs and expenses are reimbursable to
such Lender by the Borrower under the Loan Documents.
Initial Agreement. As defined in the preamble.
Intangible Assets. Goodwill, the purchase price of acquired assets in
excess of the fair market value thereof, trademarks, trade names, service marks,
brand names, copyrights, patents and licenses, and rights with respect to the
foregoing.
Interest Period.
relative to any Libor Advance
(i) initially, the period beginning on (and including) the date on which
such Libor Advance is made or continued as, or converted into, a Libor
Advance pursuant to Section 2.5.3 and ending on (but excluding) the day
which numerically corresponds to such date one, two or three months
thereafter (or, if such month has no numerically corresponding day, on the
last Business Day of such month), in each case as the Borrower may select
in its notice pursuant to Section 2.5.3; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Libor Advance and ending one,
two or three months thereafter, as selected by the Borrower by irrevocable
notice to the Agent not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto;
provided, however, that
(a) the Borrower shall not be permitted to select Interest Periods to be
in effect at any one time which have expiration dates occurring on
more than five (5) different dates;
(b) Interest Periods commencing on the same date for Libor Advances
comprising part of the same advance under this agreement shall be of
the same duration;
(c) Interest Periods for Libor Advances in connection with which
Borrower has or may incur Hedging Obligations with the Agent shall
be of the same duration as the relevant periods set under the
applicable Hedging Contracts;
(d) if such Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next following
Business Day unless such day falls in the next calendar month, in
which case such Interest Period shall end on the first preceding
Business Day; and
Schedule 1-6
(e) no Interest Period may end later than the Maturity Date of the Loan
(as actually extended).
Investment. All expenditures made and all liabilities incurred
(continently or otherwise) for the acquisition of stock or
Indebtedness of, and all loans, advances, capital contributions to,
any Person.
Issuing Lender. RBS Citizens, National Association.
Joinder Documents. The one or more joinder agreements to be executed by a
Wholly Owned Subsidiary which is to become a Borrower after the Closing Date in
the form attached hereto as Exhibit A.
Late Charges. See Section 2.5.
L/C. Any Letter of Credit, the issuance of which is procured by the
Issuing Lender for the account of the Borrower and any letter of credit made on
account of such letter of credit.
L/C Agreement. See ss.2.6(a)
L/C Fee. See ss.4
L/C Limit. The aggregate maximum Stated Amounts of all L/C's issued by the
Lender on behalf of the Borrower shall not exceed the lesser of (i) ten (10%)
percent of the Loan Amount, or (ii) the Availability.
Lenders as defined in the Preamble.
Libor Advance. The term "Libor Advance" means any principal outstanding
under this Agreement which pursuant to this Agreement bears interest at the
Adjusted Libor Rate.
LIBOR Rate means, relative to any Interest Period or LIBOR Advances, the
offered rate for deposits of U.S. Dollars in an amount approximately equal to
the amount of the requested LIBOR Advances for a term coextensive with the
designated Interest Period which the British Bankers' Association fixes as its
LIBOR rate as of 11:00 a.m. London time on the day which is two London Banking
Days prior to the beginning of such Interest Period. If such day is not a London
Banking Day, the LIBOR Rate shall be determined on the next preceding day which
is a London Banking Day. If for any reason the Agent cannot determine such
offered rate by the British Bankers' Association, the Agent may, in its
discretion, select a replacement index based on the arithmetic mean of the
quotations, if any, of the interbank offered rate by first class banks in London
or New York for deposits in comparable amounts and maturities.
Libor Rate Loan Prepayment Fee as defined in Section 2.5.15.
Schedule 1-7
LIBOR Lending Rate means, relative to any Libor Advance to be made,
continued or maintained as, or converted into, a Libor Advance for any Interest
Period, a rate per annum determined pursuant to the following formula:
Libor Lending Rate = LIBOR Rate
----------
(1.00 - LIBOR Reserve Percentage)
LIBOR Reserve Percentage means, relative to any day of any Interest Period
for LIBOR Advances, the maximum aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
under any regulations of the Board of Governors of the Federal Reserve System
(the "Board") or other governmental authority having jurisdiction with respect
thereto as issued from time to time and then applicable to assets or liabilities
consisting of "Eurocurrency Liabilities", as currently defined in Regulation D
of the Board, having a term approximately equal or comparable to such Interest
Period.
Liquidation Proceeds. Amounts received by the Agent and/or the Lenders in
the exercise of the rights and remedies under the Loan Documents.
Loan. The loan or any portion thereof which is the subject of this
Agreement.
Loan Amount. An amount equal to $250,000,000.
Loan Documents. This Agreement, the Note, the Joinder Documentation and
all other agreements, documents and instruments now or hereafter evidencing,
securing or otherwise relating to the Loan, all as the same may hereafter be
amended with the prior written consent of Lender.
Loan to Value Ratio. See ss.10.8(a)
London Banking Day means a day on which dealings in US dollar deposits are
transacted in the London interbank market.
Make Whole Provision as defined in Section 2.5.16.
Maturity Date. August 11, 2011 which date may be extended from time to
time upon the mutual written agreement between the Agent and the Borrower.
Net Income as defined in accordance with GAAP.
Net Operating Income. Net Income plus interest expense and adjusted by
adding back or deducting non-cash items as part of determining net income per
GAAP (including depreciation and amortization, non-cash compensation expenses,
straight line rent, gains on sale etc.). In addition, Net Operating Income will
deduct an annual capital expenditure of $.25 per square foot applied to
commercial properties pool or $350 per unit for the apartment properties.
Schedule 1-8
Note(s). The Promissory Notes in the aggregate principal face amount of
the Loan Amount dated as of the date hereof, made by the Borrower to the order
of the Lenders, as such Promissory Notes may hereafter be extended, renewed,
replaced, substituted, or modified with the prior written consent of Borrower
and Lenders in accordance with the terms hereof.
Obligations. All indebtedness, obligations and liabilities (including
Hedging Obligations) of the Borrower to the Agent and the Lenders (including the
Issuing Lender), existing on the date of this Agreement or arising thereafter,
direct or indirect, joint or several, absolute or contingent, matured or
unmatured, liquidated or unliquidated, arising by contract, operation of law or
otherwise, incurred under this Agreement or any of the other Loan Documents or
in respect of any of the Advances or the Note.
Organizational Documents. For any corporation, partnership, trust, limited
liability company, limited liability partnership, unincorporated association,
business or other legal entity, the documents pursuant to which such entity has
been established or organized, as such documents may hereafter be amended with
the prior written consent of Agent which shall not be unreasonably withheld or
delayed.
Outstanding. With respect to the Advances or the Loan, the aggregate
unpaid principal thereof as of any date of determination.
Overline Amount. An amount equal to $50,000,000.00.
Overline Facility. As defined in Section 2.11.
Overline Loan. As defined in Section 2.11.
Permitted Liens. Liens: (i) permitted by ss.9.4, (ii) for taxes unpaid and
diligently contested in good faith by the Borrower unless payment is required
prior to the contesting of any such taxes and provided no enforcement
proceedings have been commenced with respect to any lien filed in connection
with such dispute and adequate reserves have been established for such taxes,
(iii) for assessments, governmental charges, liens for labor, materials or
supplies which do not materially interfere with the use of the properties
comprising the Borrowing Base Properties or the operation of the business of the
Borrower and do not exceed in the aggregate at any one time $5,000,000.00, (iv)
liens on a property existing at the time of acquisition and refinancings of such
liens, (v) liens on any 1031 Property consisting of any liens of FSP, a Wholly
Owned Subsidiary or the 1031 Intermediary, (vi) liens securing Indebtedness
permitted under Section 10.2(e), and (vii) other liens which do not exceed in
the aggregate at any one time $1,000,000.00.
Schedule 1-9
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Present Value. The term "Present Value" means the value at the applicable
maturity discounted to the date of pre-payment using the Treasury Rate.
Prime Rate. The term "Prime Rate" means the per annum rate of interest so
designated from time to time by Citizens as its prime rate. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate being
charged to any customer.
Project Approvals. All approvals, consents, waivers, orders, agreements,
acknowledgments, authorizations, permits and licenses required under applicable
Requirements or under the terms of any restriction, covenant or easement
affecting any of the properties comprising the Borrowing Base Properties, or
otherwise necessary or desirable, for the ownership, acquisition, construction,
equipping, use, occupancy and operation of any of the properties comprising the
Borrowing Base Properties, whether obtained from a Governmental Authority or any
other Person.
Real Estate Assets. Means investments in non-consolidated REITs,
Syndication REITs, assets held for syndication, mortgages on real estate and/or
investments in other REITs.
Register as defined in Section 18.15.3.
Required Lenders. As of any date, the Lenders holding at least sixty
percent (60%) of the outstanding principal amount of the Note on such date; and
if no such principal is outstanding, the Lenders whose aggregate Commitments
constitute at least sixty percent (60%) of the Total Commitment; provided,
however, as long as there are only two (2) Lenders, Required Lenders shall
require that both Lenders concur on any decision requiring Required Lenders'
consent.
Requirements. Any law, ordinance, code, order, rule or regulation of any
Governmental Authority relating in any way to the acquisition, ownership,
construction, use, occupancy and operation of the properties comprising the
Borrowing Base Properties.
Restated Agreement. As defined in the preamble.
Revolving Facility. Means the revolving facility contemplated hereunder in
the amount of the Loan Amount.
Stated Amount. The face amount of any L/C.
Schedule 1-10
Subsidiary. Any corporation, partnership, association, trust, or other
business entity of which the Borrower shall at any time own directly, or
indirectly through a Subsidiary or Subsidiaries, at least a majority of the
beneficial or ownership interests therein. The term Subsidiary does not include
any Syndication REIT or any corporation, partnership, trust or other business
entity that is wholly-owned by any Syndication REIT.
Syndication Event. The sale by the Borrower, or an affiliate, of shares of
preferred stock or other similar interests in an owner of real property
established by the Borrower, or an affiliate in connection with the syndication
of such property by the Borrower. For purposes of clarity, the term "Syndication
Event" does not include an Affiliate Disposition.
Syndication REIT. Means a REIT that is managed and controlled by the
Borrower but is not a Wholly Owned Subsidiary, including a "Sponsored REIT" as
such term is used in FSP's filings with the Securities and Exchange Commission.
Taking. Any condemnation for public use of, or damage by reason of, the
action of any Governmental Authority, or any transfer by private sale in lieu
thereof, either temporarily or permanently.
Tangible Net Worth. The excess of Total Assets over Total Liabilities, and
less the sum of:
(a) the total book value of all assets of the Borrower properly
classified as Intangible Assets ; plus
(b) all amounts representing any write-up in the book value of any
assets of the Borrower resulting from a revaluation thereof
subsequent to the Balance Sheet Date; plus
(c) to the extent otherwise includable in the computation of Tangible
Net Worth, any subscriptions receivable.
Taxes as defined in Section 2.6.3.
Termination Date. The earlier of: (i) the occurrence of an Event of
Default and the continuation thereof beyond any applicable grace periods, (ii)
the payment in full of all Obligations and the termination of the Borrower's
rights to request Advances, or (iii) the Maturity Date.
Total Assets. All assets of the Borrower determined in accordance with
generally accepted accounting principles.
Total Commitment. The sum of the Commitments of the Lenders, as in effect
from time to time.
Schedule 1-11
Total Liabilities. All liabilities of the Borrower determined in
accordance with generally accepted accounting principles and all Indebtedness,
without duplication of the Borrower, whether or not so classified.
Transaction Fee. See ss.4.
Treasury Rate. The term "Treasury Rate, means, as of the date of any
calculation or determination, the latest Published rate for United States
Treasury Notes or Bills (but the rate on Bills issued on a discounted basis
shall be converted to a bond equivalent) as published weekly in the Federal
Reserve Statistical Release H.15(519) of Selected Interest Rates in an amount
which approximates (as determined by Agent) the amount approximately comparable
to the portion of the Loan to which the Treasury Rating applies for the Interest
Period, or (ii) in the case of a prepayment, the amount prepaid and with a
maturity closest to the original maturity of the installment which is prepaid in
whole or in part.
Value of the Borrowing Base Properties. As of the relevant date of
determination the aggregate value of all of the properties comprising the
Borrowing Base Properties based upon the test quarter Net Operating Income
multiplied by four (4) and divided by a 8.25% capitalization rate (7% for CBD
Properties). For any acquisitions made during a quarter the Net Operating Income
will be calculated by dividing Net Operating Income by the number of months such
asset(s) is owned during such test quarter multiplied by 3 to approximate a full
quarter.
Variable Rate. The term "Variable Rate" means a per annum rate equal at
all times to the Prime Rate plus 0 basis points, with changes therein to be
effective simultaneously with any change in the Prime Rate without notice or
demand of any kind.
Variable Rate Advance. The term "Variable Rate Advance" means any
principal amount outstanding under this Agreement which pursuant to this
Agreement bears interest at the Variable Rate.
Wholly Owned Subsidiaries. Any Subsidiary with respect to which FSP shall
own directly or indirectly (through a Subsidiary or Subsidiaries) 100% of the
outstanding voting interest and economic interest. For the avoidance of doubt,
no Syndication REIT shall be deemed to be a Wholly Owned Subsidiary.
1031 Intermediary. A Person in such person's capacity as an intermediary
or accommodation holder in connection with an exchange of property by FSP or a
Wholly Owned Subsidiary intended to qualify under Section 1031 of the Internal
Revenue Code as amended.
1031 Property. A property whose legal title or other indicia of ownership
is held by a 1031 Intermediary for the benefit of any of FSP or a Wholly Owned
Subsidiary as part of a 1031 tax exchange intended to qualify under Section 1031
of the Internal Revenue Code as amended.
Schedule 1-12
SCHEDULE 2
LIST OF BORROWERS
FSP Holdings LLC (DE)
FSP Investments LLC (MA)
FSP Property Management LLC (MA)
FSP Protective TRS Corp. (MA)
FSP Hillview Center Limited Partnership (MA)
FSP Montague Business Center Corp. (DE)
FSP Greenwood Plaza Corp. (DE)
FSP 380 Interlocken Corp. (DE)
FSP 390 Interlocken LLC (DE)
FSP Blue Lagoon Drive LLC (DE)
FSP One Overton Park LLC (DE)
FSP Northwest Point LLC (DE)
FSP River Crossing LLC (DE)
FSP Bollman Place Limited Partnership (MA)
FSP Southfield Centre Limited Partnership (MA)
FSP Forest Park IV NC Limited Partnership (NC)
FSP Park Seneca Limited Partnership (MA)
FSP Addison Circle Limited Partnership (DE)
FSP Austin N.W. Limited Partnership (MA)
FSP Collins Crossing Limited Partnership (DE)
Schedule 2-1
FSP Eldridge Green Limited Partnership (TX)
FSP Liberty Plaza Limited Partnership (TX)
FSP Park Ten Limited Partnership (TX)
FSP Willow Bend Office Center Limited Partnership (TX)
FSP Innsbrook Corp. (DE)
Schedule 2-2
SCHEDULE 3
ADVANCE/LOAN REQUEST
[Date]
RBS Citizens, National Association
28 State Street
Boston, Massachusetts 02109
Attention: _______________
Loan No. _________________
Dear Gentlemen:
This letter is to request an Advance of the above-referenced loan in the
amount of $________________ (the "Advance"). The Advance shall be transferred to
Account No. _________________ with RBS Citizens, National Association and
received in said Account by _________, ______ at _________ a.m./p.m.
Very truly yours,
FRANKLIN STREET PROPERTIES CORP.
By:________________________
Name:
Its:
Schedule 3-1
SCHEDULE 4
SUBSIDIARIES
FSP Blue Lagoon Drive Corp.
FSP Forest Park IV LLC
FSP Addison Circle LLC
FSP Addison Circle Corp.
FSP Collins Crossing LLC
FSP Collins Crossing Corp.
FSP Eldridge Green LLC
FSP Eldridge Green Corp.
FSP Park Ten LLC
FSP Willow Bend Office Center LLC
FSP Willow Bend Office Center Corp.
Schedule 4-1
EXHIBIT E
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: ____________, 2007
Reference is made to the Third Amended and Restated Loan Agreement, dated
as of October __, 2007 (as amended and in effect from time to time, the "Loan
Agreement"), by and between Franklin Street Properties Corp, and the additional
entities listed from time to time on Schedule 2 to the Loan Agreement, having an
address at 401 Edgewater Place, Suite 200, Wakefield, Massachusetts 01880-6210
("Borrower"), RBS CITIZENS, NATIONAL ASSOCIATION and the other lending
institutions which may become parties to the Loan Agreement (the "Lenders"), and
RBS CITIZENS, NATIONAL ASSOCIATION as agent for itself and such other lending
institutions (the "Agent"). Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Loan 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 Loan Documents as of the Effective Date (as
hereinafter defined). The amount of the Assignor's Commitment being
purchased by and assigned to the Assignee as of the Effective Date is
$_______________.
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 100%, and the outstanding balance of the
Loan owing to the Assignor under the Note held by the Assignor (unreduced
by any assignments thereof which have not yet become effective) is
$_______________; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents or any other instrument or document furnished
pursuant thereto, other than that the Assignor is the legal and beneficial
owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (iii) makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower, or any other person which may be
primarily or secondarily liable in respect of any of the Obligations or
Exhibit E-1
any of their obligations, or the performance or observance by the
Borrower, or any other person primarily or secondarily liable in respect
of any of the obligations under any of the Loan Documents or any other
instrument or document delivered or executed pursuant thereto; and (iv)
attaches the Note delivered to it under the Loan Agreement and requests
that the Borrower exchange such Note for a new Note payable to each of the
Assignor and the Assignee as follows:
Note Payable to the Order of: Amount of Note
----------------------------- --------------
____________________ ($_______________)
____________________ ($_______________)
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms
that it has received a copy of the Loan Documents, together with copies of
the most recent financial statements delivered pursuant to the Loan
Agreement and such other documents and information as the Assignee has
deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (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 Loan Documents; (iv) confirms that
it is an Eligible Assignee; (v) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers as are
reasonably incidental thereto pursuant to the terms of the Loan Documents;
(vi) agrees that it will perform all the obligations which by the terms of
the Loan Documents are required to be performed by the Assignee as a
Lender in accordance with the terms of the Loan Documents; and (vi)
specifies as to its address for notices the office set forth beneath its
name on the signature page hereof.
4. The effective date for this Assignment and Acceptance shall be
_______________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for
acceptance and recording in the Register by the Agent. Upon such
recordation, and prior to such assignment being effective the Assignee
shall pay the Agent (for the Agent's own account) a registration fee in
the sum of $3,500.00.
5. Upon such acceptance and recording, from and after the Effective
Date, (i) the Assignee shall be a party to the Loan Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder, and (ii) the Assignor shall, with
respect to that portion of its interest under the Loan Documents assigned
hereunder relinquish its future rights and be released from its future
obligations under the Loan Documents but shall remain liable for all
obligations which arose prior to such assignment.
Exhibit E-2
6. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the rights and
obligations 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 ACCEPTANCE IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
Exhibit E-3
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Assignment and Acceptance to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
"Assignor"
______________________________
By:___________________________
Name:
Title:
"Assignee"
______________________________
By:___________________________
Name:
Title:
Notice Address: ______________________________
______________________________
______________________________
Attn:_________________________
Telephone No.:
Telecopier No.:
Exhibit E-4
EXHIBIT F
LENDER'S COMMITMENT AND PERCENTAGE
RBS Citizens, National Association
$95,000,000.00 - 38%
Bank of America, N.A.
$75,000,000.00 - 30%
Chevy Chase Bank, F.S.B.
$20,000,000.00 - 8%
Wachovia Bank, National Association
$60,000,000.00 - 24%
Exhibit F-1
EXHIBIT H
BORROWING BASE PROPERTIES
- --------------------------------------------------------------------------------
Borrowing Base Property Name Subsidiary name
- --------------------------------------------------------------------------------
Hillview Center FSP Hillview Center Limited
Milpitas, California Partnership
Montague Business Center FSP Montague Business Center Corp.
Greenwood Plaza FSP Greenwood Plaza Corp.
380 Interlocken FSP 380 Interlocken Corp.
390 Interlocken FSP 390 Interlocken LLC
Blue Lagoon FSP Blue Lagoon Drive LLC
Overton Park FSP One Overton Park LLC
Northwest Point FSP Northwest Point LLC
River Crossing FSP River Crossing LLC
Bollman Place FSP Bollman Place Limited Partnership
Southfield Centre FSP Southfield Centre Limited
Partnership
Forest Park FSP Forest Park IV NC Limited
Partnership
Park Seneca FSP Park Seneca Limited Partnership
Addison Circle FSP Addison Circle Limited Partnership
Austin N.W. FSP Austin N.W. Limited Partnership
Collins Crossing FSP Collins Crossing Limited Partnership
Exhibit H-1
Eldridge Green FSP Eldridge Green Limited Partnership
Liberty Plaza FSP Liberty Plaza Limited Partnership
Park Ten FSP Park Ten Limited Partnership
Willow Bend Office Center FSP Willow Bend Office Center Limited
Partnership
Innsbrook FSP Innsbrook Corp.
Baltimore, Maryland FSP East Baltimore Street LLC
(1031 Property)
Properties held directly by the FSP Properties held directly by the FSP
- ----------------------------------- -----------------------------------
Centennial Park Centennial
Meadow Point Meadow Point
Timberlake Timberlake
Timberlake East Timberlake East
Federal Way Federal Way
Exhibit H-2