exv10w1





Exhibit 10.1




THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




among




FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP




and




OTHER BORROWERS WHICH MAY BECOME PARTIES TO THIS AGREEMENT




and




KEYBANK NATIONAL ASSOCIATION,




and




OTHER LENDERS WHICH MAY BECOME PARTIES TO THIS AGREEMENT




and




KEYBANK NATIONAL ASSOCIATION,

AS ADMINISTRATIVE AGENT AND SWINGLINE LENDER




and




WELLS FARGO BANK NATIONAL ASSOCIATION,

AS CO-SYNDICATION AGENT




and




BMO CAPITAL MARKETS,

AS CO-SYNDICATION AGENT




and




PNC BANK, NATIONAL ASSOCIATION,

AS DOCUMENTATION AGENT




with




KEYBANC CAPITAL MARKETS INC.,

AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER




Dated as of June 16, 2011





 


 









 







	 	 	 	 	 
	§1. DEFINITIONS AND RULES OF INTERPRETATION
	 	 	2	 
	§1.1 Definitions
	 	 	2	 
	§1.2 Rules of Interpretation
	 	 	26	 
	§1.3 GAAP
	 	 	27	 
	§2. THE REVOLVING CREDIT FACILITY
	 	 	27	 
	§2.1 Commitment to Lend
	 	 	27	 
	§2.2 The Revolving Credit Notes
	 	 	28	 
	§2.3 Interest on Revolving Credit Loans; Fees
	 	 	28	 
	§2.4 Requests for Revolving Credit Loans and Letters of Credit
	 	 	30	 
	§2.5 Conversion Options
	 	 	32	 
	§2.6 Funds for Revolving Credit Loans
	 	 	33	 
	§2.7 Reduction of Commitment
	 	 	34	 
	§2.8 Increase in Total Commitment
	 	 	34	 
	§2.9 Extension of Revolving Credit Maturity Date
	 	 	34	 
	§2.10 Swingline Loans
	 	 	35	 
	§3. REPAYMENT OF THE LOANS
	 	 	38	 
	§3.1 Maturity
	 	 	38	 
	§3.2 Optional Repayments of Revolving Credit Loans
	 	 	38	 
	§3.3 Mandatory Repayment of Loans
	 	 	38	 
	§4. CERTAIN GENERAL PROVISIONS
	 	 	39	 
	§4.1 Funds for Payments
	 	 	39	 
	§4.2 Computations
	 	 	39	 
	§4.3 Inability to Determine Libor Rate
	 	 	40	 
	§4.4 Illegality
	 	 	40	 
	§4.5 Additional Costs, Etc.
	 	 	40	 
	§4.6 Capital Adequacy
	 	 	41	 
	§4.7 Certificate; Limitations
	 	 	42	 
	§4.8 Indemnity
	 	 	42	 
	§4.9 Interest After Default; Late Charge
	 	 	42	 
	§4.10 Right to Replace Lender
	 	 	43	 
	§4.11 Cash Collateral
	 	 	43	 
	§4.12 Defaulting Lenders
	 	 	44	 
	§5. LETTERS OF CREDIT
	 	 	46	 
	§5.1 Letter of Credit Commitments
	 	 	46	 
	§5.2 Reimbursement Obligation of the Borrower
	 	 	48	 
	§5.3 Letter of Credit Payments; Funding of a Loan
	 	 	49	 
	§5.4 Obligations Absolute
	 	 	50	 
	§5.5 Reliance by Issuer
	 	 	51	 
	§5.6 Outstanding Letters of Credit
	 	 	51	 
	§6. RECOURSE OBLIGATIONS
	 	 	52	 
	§7. REPRESENTATIONS AND WARRANTIES
	 	 	52	 
	§7.1 Authority, Etc.
	 	 	52	 
	§7.2 Governmental Approvals
	 	 	54	 
	§7.3 Title to Properties; Leases
	 	 	54	 
	§7.4 Financial Statements
	 	 	55	 
	§7.5 No Material Changes, Etc.
	 	 	55	 






 


i









 





	 	 	 	 	 
	§7.6 Franchises, Patents, Copyrights, Etc.
	 	 	55	 
	§7.7 Litigation
	 	 	56	 
	§7.8 No Materially Adverse Contracts, Etc.
	 	 	56	 
	§7.9 Compliance With Other Instruments, Laws, Etc.
	 	 	56	 
	§7.10 Tax Status
	 	 	56	 
	§7.11 No Event of Default
	 	 	56	 
	§7.12 Investment Company Acts
	 	 	56	 
	§7.13 Name; Jurisdiction of Organization; Absence of UCC Financing Statements, Etc.
	 	 	57	 
	§7.14 Absence of Liens
	 	 	57	 
	§7.15 Certain Transactions
	 	 	57	 
	§7.16 Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans
	 	 	57	 
	§7.17 Regulations U and X
	 	 	58	 
	§7.18 Environmental Compliance
	 	 	58	 
	§7.19 Subsidiaries
	 	 	59	 
	§7.20 Disclosure
	 	 	60	 
	§7.21 REIT Status
	 	 	60	 
	§7.22 Anti-Terrorism Regulations
	 	 	60	 
	§8. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE TRUST
	 	 	61	 
	§8.1 Punctual Payment
	 	 	61	 
	§8.2 Maintenance of Office; Jurisdiction of Organization, Etc.
	 	 	61	 
	§8.3 Records and Accounts
	 	 	61	 
	§8.4 Financial Statements, Certificates and Information
	 	 	62	 
	§8.5 Notices
	 	 	64	 
	§8.6 Existence of Borrower; Maintenance of Properties
	 	 	65	 
	§8.7 Existence of the Trust; Maintenance of REIT Status of the Trust; Maintenance of Properties
	 	 	66	 
	§8.8 Insurance
	 	 	67	 
	§8.9 Taxes
	 	 	67	 
	§8.10 Inspection of Properties and Books; Treatment of Certain Information; Confidentiality
	 	 	67	 
	§8.11 Compliance with Laws, Contracts, Licenses, and Permits
	 	 	69	 
	§8.12 Use of Proceeds
	 	 	69	 
	§8.13 Additional Borrower; Solvency of Borrower; Removal of Borrower; Addition of Real Estate Asset to Unencumbered Pool
	 	 	69	 
	§8.14 Further Assurances
	 	 	71	 
	§8.15 Interest Rate Protection
	 	 	71	 
	§8.16 Environmental Indemnification
	 	 	71	 
	§8.17 Response Actions
	 	 	72	 
	§8.18 Environmental Assessments
	 	 	72	 
	§8.19 Employee Benefit Plans
	 	 	72	 
	§8.20 No Amendments to Certain Documents
	 	 	73	 
	§8.21 Additional Guaranties in connection with Guaranties of Other Unsecured Debt
	 	 	74	 
	§9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE TRUST
	 	 	74	 
	§9.1 Restrictions on Indebtedness
	 	 	74	 
	§9.2 Restrictions on Liens, Etc.
	 	 	76	 
	§9.3 Restrictions on Investments
	 	 	78	 






 


ii









 





	 	 	 	 	 
	§9.4 Merger, Consolidation and Disposition of Assets; Secured Debt Incurrence
	 	 	80	 
	§9.5 Compliance with Environmental Laws
	 	 	81	 
	§9.6 Distributions
	 	 	81	 
	§9.7 Government Regulation
	 	 	82	 
	§10. FINANCIAL COVENANTS; COVENANTS REGARDING ELIGIBLE UNENCUMBERED PROPERTIES
	 	 	82	 
	§10.1 Consolidated Total Leverage Ratio
	 	 	82	 
	§10.2 Consolidated Debt Yield
	 	 	82	 
	§10.3 Fixed Charge Coverage Ratio
	 	 	82	 
	§10.4 Net Worth
	 	 	82	 
	§10.5 Unencumbered Pool Leverage
	 	 	83	 
	§10.6 Unencumbered Pool Interest Coverage Ratio
	 	 	83	 
	§10.7 [Reserved]
	 	 	83	 
	§11. [Reserved]
	 	 	83	 
	§12. CONDITIONS TO THE FIRST ADVANCE
	 	 	83	 
	§12.1 Loan Documents
	 	 	83	 
	§12.2 Certified Copies of Organization Documents
	 	 	83	 
	§12.3 By-laws; Resolutions
	 	 	84	 
	§12.4 Incumbency Certificate; Authorized Signers
	 	 	84	 
	§12.5 Opinion of Counsel Concerning Organization and Loan Documents
	 	 	84	 
	§12.6 Guaranty
	 	 	84	 
	§12.7 Certifications from Government Officials; UCC 11 Reports
	 	 	84	 
	§12.8 Proceedings and Documents
	 	 	84	 
	§12.9 Fees
	 	 	84	 
	§12.10 Closing Certificate
	 	 	85	 
	§12.11 Other Matters
	 	 	85	 
	§13. CONDITIONS TO ALL BORROWINGS
	 	 	85	 
	§13.1 Representations True; No Event of Default; Compliance Certificate
	 	 	85	 
	§13.2 No Legal Impediment
	 	 	85	 
	§13.3 Governmental Regulation
	 	 	85	 
	§13.4 Borrowing Documents
	 	 	85	 
	§13.5 [Reserved.]
	 	 	85	 
	§13.6 New Unencumbered Pool Property
	 	 	86	 
	§13.7 Continued Compliance
	 	 	86	 
	§14. EVENTS OF DEFAULT; ACCELERATION; ETC.
	 	 	86	 
	§14.1 Events of Default and Acceleration
	 	 	86	 
	§14.2 Termination of Commitments
	 	 	90	 
	§14.3 Remedies
	 	 	90	 
	§14.4 Application of Funds
	 	 	90	 
	§15. SECURITY INTEREST AND SET-OFF
	 	 	91	 
	§15.1 Security Interest
	 	 	91	 
	§15.2 Set-Off and Debit
	 	 	92	 
	§15.3 Right to Freeze
	 	 	92	 
	§15.4 Additional Rights
	 	 	92	 






 


iii









 





	 	 	 	 	 
	§16. THE AGENT
	 	 	93	 
	§16.1 Authorization
	 	 	93	 
	§16.2 Employees and Agents
	 	 	93	 
	§16.3 No Liability
	 	 	93	 
	§16.4 No Representations
	 	 	93	 
	§16.5 Payments
	 	 	94	 
	§16.6 Holders of Notes
	 	 	94	 
	§16.7 Indemnity
	 	 	94	 
	§16.8 Agent as Lender
	 	 	94	 
	§16.9 Notification of Defaults and Events of Default
	 	 	95	 
	§16.10 Duties in Case of Enforcement
	 	 	95	 
	§16.11 Successor Agent
	 	 	95	 
	§16.12 Notices
	 	 	96	 
	§16.13 Other Agents
	 	 	96	 
	§17. EXPENSES
	 	 	96	 
	§18. INDEMNIFICATION
	 	 	97	 
	§19. SURVIVAL OF COVENANTS, ETC.
	 	 	98	 
	§20. ASSIGNMENT; PARTICIPATIONS; ETC.
	 	 	98	 
	§20.1 Conditions to Assignment by Lenders
	 	 	98	 
	§20.2 Certain Representations and Warranties; Limitations; Covenants
	 	 	99	 
	§20.3 Register
	 	 	100	 
	§20.4 New Notes
	 	 	100	 
	§20.5 Participations
	 	 	100	 
	§20.6 Pledge by Lender
	 	 	101	 
	§20.7 No Assignment by Borrower
	 	 	101	 
	§20.8 Disclosure
	 	 	101	 
	§20.9 Syndication
	 	 	101	 
	§21. NOTICES, ETC.
	 	 	102	 
	§22. FPLP AS AGENT FOR THE BORROWER
	 	 	104	 
	§23. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE
	 	 	104	 
	§24. HEADINGS
	 	 	105	 
	§25. COUNTERPARTS
	 	 	105	 
	§26. ENTIRE AGREEMENT, ETC.
	 	 	105	 
	§27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS
	 	 	106	 
	§28. CONSENTS, AMENDMENTS, WAIVERS, ETC.
	 	 	106	 
	§29. SEVERABILITY
	 	 	108	 
	§30. INTEREST RATE LIMITATION
	 	 	108	 
	§31. USA PATRIOT ACT COMPLIANCE
	 	 	108	 
	§32. ORIGINAL CREDIT AGREEMENT AMENDED AND RESTATED
	 	 	109	 





 


iv









 





Exhibits to Revolving Credit Agreement




	 	 	 
	Exhibit A

	 	Form of Revolving Credit Note
	 
	 	 
	Exhibit A-1

	 	Form of Swingline Note
	 
	 	 
	Exhibit B

	 	Form of Completed Loan Request
	 
	 	 
	Exhibit B-1

	 	Form of Availability Certificate
	 
	 	 
	Exhibit C

	 	Forms of Compliance Certificate
	 
	 	 
	Exhibit D

	 	Form of Assignment and Assumption
	 
	 	 
	Exhibit E

	 	Form of Joinder Agreement
	 
	 	 
	Exhibit F

	 	Form of Subsidiary Guaranty





 


v









 





Schedules to Revolving Credit Agreement




	 	 	 
	Schedule 1

	 	Borrowers
	 
	 	 
	Schedule 2

	 	Lender’s Commitments
	 
	 	 
	Schedule 5.6

	 	Existing Letters of Credit
	 
	 	 
	Schedule 7.1(b)

	 	Capitalization
	 
	 	 
	Schedule 7.3

	 	Partially-Owned Entities
	 
	 	 
	Schedule 7.7

	 	Litigation
	 
	 	 
	Schedule 7.13

	 	Legal Name; Jurisdiction
	 
	 	 
	Schedule 7.15

	 	Affiliate Transactions
	 
	 	 
	Schedule 7.16

	 	Employee Benefit Plans
	 
	 	 
	Schedule 7.19

	 	Subsidiaries
	 
	 	 
	Schedule 8.19

	 	Employee Benefit Plans
	 
	 	 
	Schedule 9.1(g)

	 	Contingent Liabilities







 


vi









 







THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT




This THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of the 16th day of June,
2011, by and among FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, a Delaware limited
partnership (“FPLP”) and the Wholly-Owned Subsidiaries (defined below) and such other Subsidiaries
(defined below) which are listed on Schedule 1 hereto (as such Schedule 1 may be (or may be deemed
to be) amended from time to time (FPLP and any such Wholly-Owned Subsidiary and any such other
Subsidiary being hereinafter referred to collectively as the “Borrower” unless referred to in their
individual capacities), having their principal place of business at 7600 Wisconsin Avenue, 11th
Floor, Bethesda, Maryland 20814; KEYBANK NATIONAL ASSOCIATION (“KeyBank”), having a principal place
of business at 127 Public Square, Cleveland, Ohio 44114, WELLS FARGO BANK NATIONAL ASSOCIATION,
BANK OF MONTREAL and the other lending institutions which are as of the date hereof or may become
parties hereto pursuant to §20 (individually, a “Lender” and collectively, the “Lenders”); KEYBANK,
as administrative agent for itself and each other Lender (the “Agent”), WELLS FARGO BANK NATIONAL
ASSOCIATION and BMO CAPITAL MARKETS, as Co-Syndication Agents and PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent; and KEYBANC CAPITAL MARKETS INC., as Sole Lead Arranger and Sole Book
Manager.



RECITALS




A. The Borrower, the Lenders and KeyBank as Agent are parties to that certain Second Amended
and Restated Revolving Credit Agreement dated as of December 29, 2009 (as amended and modified
prior to the date hereof, the “Original Credit Agreement”), pursuant to which the Lenders provided
a revolving credit facility in favor of the Borrower.



B. The Borrower has requested that the Lenders amend and restate the Original Credit Agreement
to modify the Original Credit Agreement in certain respects, including to extend the maturity date
thereof, and subject to the terms and conditions hereof, the Lenders and the Agent are willing to
do so.



C. The Borrower is primarily engaged in the business of owning, acquiring, developing,
renovating and operating office, industrial and so-called flex properties in the Mid-Atlantic
region of the United States.



D. First Potomac Realty Trust, a Maryland real estate investment trust (the “Trust”), is the
sole general partner of FPLP, holds in excess of 80% of the partnership interests in FPLP as of the
date of this Agreement, and is qualified to elect REIT status for income tax purposes and will
continue to guaranty the obligations of the Borrower hereunder and under the other Loan Documents
(as defined below).



E. The Borrower and the Trust have requested, and the Lenders have agreed, to extend the
unsecured revolving credit facility for use by the Borrower pursuant to the terms and conditions
hereof.


 


1









 





NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
parties hereto agree to amend and restate the Original Credit Agreement in its entirety as set
forth below:




§1. DEFINITIONS AND RULES OF INTERPRETATION.




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




AAP Qualification. See §7.6.



Accountants. In each case, independent certified public accountants reasonably
acceptable to the Majority Lenders. The Lenders hereby acknowledge that the Accountants may
include KPMG LLP and any other so-called “big-four” accounting firm.



Accounts Payable. Accounts payable of the Borrower, the Trust and their respective
Subsidiaries, as determined in accordance with GAAP.



Adjusted EBITDA. As at any date of determination, an amount equal to (i) Consolidated
EBITDA for the applicable period; minus (ii) the Capital Reserve on such date.



Adjusted Net Operating Income. As at any date of determination, an amount equal to
(i) the Net Operating Income of the Unencumbered Pool for the applicable period; minus (ii) the
Unencumbered Pool Capital Reserve on such date; provided that, with respect to the
Redland Property, the Net Operating Income included in the calculation of Adjusted Net Operating
Income shall be FPLP’s or its Wholly-Owned Subsidiary’s pro rata share of Net Operating Income (and
the items comprising Net Operating Income) attributable to the applicable period based on FPLP’s or
such Wholly-Owned Subsidiary’s percentage ownership interest in FP Redland Tech (or such other
amount to which FPLP or its Wholly-Owned Subsidiary is entitled based on an arm’s length
agreement).




Affected Lender. See §4.10.



Affiliate. With reference to any Person, (i) any director, officer, general partner,
trustee or managing member (or the equivalent thereof) of that Person, (ii) any other Person
controlling, controlled by or under direct or indirect common control of that Person, (iii) any
other Person directly or indirectly holding 5% or more of any class of the capital stock or other
Equity Interests (including options, warrants, convertible securities and similar rights) of that
Person, (iv) any other Person 5% or more of any class of whose capital stock or other Equity
Interests (including options, warrants, convertible securities and similar rights) is held directly
or indirectly by that Person, and (v) any Person directly or indirectly controlling that Person,
whether through a management agreement, voting agreement, other contract or otherwise. In no event
shall the Agent or any Lender be deemed to be an Affiliate of the Borrower.



Agent. See the preamble to this Agreement. The Agent shall include any successor
agent, as permitted by §16.


 


2









 





Agent’s Head Office. The Agent’s office located at 127 Public Square, Cleveland, Ohio
44114, or at such other location as the Agent may designate from time to time, or the office of any
successor agent permitted under §16.



Agreement. This Third Amended and Restated Revolving Credit Agreement, including the
Schedules and Exhibits hereto, as the same may be from time to time amended, restated, modified
and/or supplemented and in effect.



Agreement of Limited Partnership of FPLP. The Amended and Restated Agreement of
Limited Partnership of FPLP, dated September 15, 2003, as amended, among the Trust and the limited
partners named therein, as amended through the date hereof and as the same may be further amended
from time to time as permitted by §8.20.



Anti-Terrorism Laws. Any laws relating to terrorism or money laundering, including
Executive Order No. 13224, the USA Patriot Act of 2001, 31 U.S.C. Section 5318, the laws comprising
or implementing the Bank Secrecy Act, and the laws administered by the United States Treasury
Department’s Office of Foreign Asset Control (as any of the foregoing laws may from time to time be
amended, renewed, extended, or replaced).




Applicable Base Rate Margin. The Applicable Base Rate Margin is set forth in §2.3(c).



Applicable L/C Percentage. With respect to any Letter of Credit, a per annum
percentage equal to the Applicable Libor Margin in effect from time to time.




Applicable Libor Margin. The Applicable Libor Margin is set forth in §2.3(c).




Arranger. KeyBanc Capital Markets Inc.




Assignment and Assumption. See §20.1.



Attributable Indebtedness. On any date, in respect of any Capital Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP.



Availability. As of the date that any Loan is to be made or Letter of Credit is to be
issued hereunder or other applicable date of determination, an amount equal to the lesser of (i)
the Total Commitment and (ii) (x) the Value of Unencumbered Properties at such time (based upon the
most recent financial statements delivered to the Agent but after giving pro forma effect to the
acquisition and disposition of Eligible Unencumbered Properties after the date of such financial
statements) multiplied by the Unencumbered Pool Percentage as of the applicable date of
determination or (y) if less, the amount that would permit the Borrower to remain in compliance
with §10.5 after giving effect to the requested Loan or Letter of Credit. The amount available to
be drawn at any time shall be the Availability less the sum of the Maximum Drawing Amount and the
aggregate amount of all outstanding Loans (including Swingline Loans) at such time.



Availability Certificate. A certificate, in the form of Exhibit B-1,
evidencing, as of the applicable date of determination, the amount available to be drawn by the
Borrower, which
certificate shall include a calculation of Availability and evidence of compliance with §10.5
after giving effect to any requested Loans or Letters of Credit.


 


3









 





Base Rate. As at any applicable date of determination, the greatest of (i) the
fluctuating annual rate of interest announced from time to time by the Agent at the Agent’s Head
Office as its “prime rate”, (ii) one half of one percent (0.50%) plus the Federal Funds Effective
Rate, and (iii) one and one quarter percent (1.25%) plus the Libor Rate for a term of one month
commencing on such date of determination. The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer. Any change in the
rate of interest payable hereunder resulting from a change in the Base Rate shall become effective
as of the opening of business on the day on which such change in the Base Rate becomes effective,
without notice or demand of any kind.



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




Borrower. See the preamble hereto.




Borrower Information. See §2.3(g).




Borrower Materials. See §8.10(c).



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



Business Day. (i) For all purposes other than as covered by clause (ii) below, any
day other than a Saturday, Sunday or legal holiday on which banks in Cleveland, Ohio are open for
the conduct of a substantial part of their commercial banking business; and (ii) with respect to
all notices and determinations in connection with, and payments of principal and interest on, Libor
Rate Loans, any day that is a Business Day described in clause (i) and that is also a Libor
Business Day.



Capital Expenditures. Any expenditure for any item that would be treated or defined
as a capital expenditure under GAAP.



Capital Reserve. As at any date of determination, a capital reserve equal to the
weighted average of square feet of the Real Estate Assets during the applicable period,
multiplied by $0.15 per annum.



Capitalization Rate. The Capitalization Rate shall be (i) 7.50% for DC Office
Properties, (ii) 8.00% for Suburban Office Properties, and (iii) 8.50% for Other Properties.



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


 


4









 





Cash and Cash Equivalents. As of any date of determination, the sum of (a) the
aggregate amount of unrestricted cash then actually held by the Borrower or any of its
Subsidiaries, (b) the aggregate amount of unrestricted cash equivalents (valued at fair market
value) then held by the Borrower or any of its Subsidiaries and (c) the aggregate amount of cash
then actually held by the Borrower or any of its Subsidiaries in the form of tenant security
deposits, but only to the extent such tenant security deposits are included as a liability on the
Borrower’s Consolidated balance sheet, escrows and reserves. As used in this definition, (i)
“unrestricted” means the specified asset is not subject to any Liens in favor of any Person, and
(ii) “cash equivalents” means that such asset has a liquid, par value in cash and is convertible to
cash on demand. Notwithstanding anything contained herein to the contrary, the term Cash and Cash
Equivalents shall not include the Commitments of the Lenders to make Loans or to make any other
extension of credit under this Agreement.



Cash Collateralize. To pledge and deposit with or deliver to the Agent, for the
benefit of the Agent, Fronting Bank or Swingline Lender (as applicable) and the Lenders, as
collateral for Letter of Credit Obligations, Obligations in respect of Swingline Loans, or
obligations of Banks to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the Fronting Bank or Swingline Lender benefitting
from such collateral shall agree in its sole discretion, other credit support, in each case
pursuant to documentation in form and substance satisfactory to (a) the Agent and (b) the Fronting
Bank or the Swingline Lender (as applicable). “Cash Collateral” shall have a meaning correlative
to the foregoing and shall include the proceeds of such cash collateral and other credit support.




Change of Control. An event or series of events by which:



(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an
“option right”)), directly or indirectly, of 35% or more of the equity securities of the
Trust entitled to vote for members of the board of directors or equivalent governing body of the
Trust on a fully-diluted basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right); or



(b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Trust cease to be composed of individuals (i)
who were members of that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose election or nomination to that
board or other equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a majority of that
board or equivalent governing body.



CERCLA. See §7.18.


 


5









 






Closing Date. June 16, 2011.




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



Commitment. With respect to each Lender, the amount set forth from time to time on
Schedule 2 hereto as the amount of such Lender’s Commitment to make Revolving Credit Loans to, and
to participate in the issuance, extension and renewal of Letters of Credit for the account of, the
Borrower, as such Schedule 2 may be updated by the Agent from time to time.



Commitment Percentage. With respect to each Lender, the percentage set forth on
Schedule 2 hereto as such Lender’s percentage of the Total Commitment, as such Schedule
2 may be updated by the Agent from time to time.



Completed Loan Request. A loan request accompanied by all information required to be
supplied under the applicable provisions of §2.4.



Consolidated or consolidated. With reference to any term defined herein, shall mean
that term as applied to the accounts of the Borrower, the Trust and their respective Subsidiaries,
consolidated in accordance with GAAP unless otherwise specifically provided herein.



Consolidated Debt Yield. In relation to the Borrower, the Trust and their respective
Subsidiaries for any fiscal quarter, the percentage determined by dividing (i) Consolidated EBITDA
for the most recently ended fiscal quarter, annualized by (ii) Consolidated Total Indebtedness as
of the last day of such fiscal quarter.



Consolidated EBITDA. In relation to the Borrower, the Trust and their respective
Subsidiaries for any applicable period, an amount equal to, without double-counting, the net income
or loss of the Borrower, the Trust and their respective Subsidiaries determined in accordance with
GAAP (before minority interests and excluding the adjustment for so-called “straight-line rent
accounting”) for such period, plus (x) the following to the extent deducted in computing
such net income or loss for such period: (i) Consolidated Total Interest Expense for such period,
(ii) losses attributable to the sale or other disposition of assets or debt restructurings in such
period, (iii) real estate depreciation and amortization for such period, (iv) acquisition costs
related to the acquisition of Real Estate Assets or the acquisition or origination of Structured
Finance Investments that were capitalized prior to FAS 141-R which do not represent a recurring
cash item in such period or in any future period and (v) other non-cash charges for such period;
and minus (y) all gains attributable to the sale or other disposition of assets or debt
restructurings in such period, in each case adjusted to include the Borrower’s, the Trust’s or any
Subsidiary’s pro rata share of EBITDA (and the items comprising EBITDA) from any
Partially-Owned Entity in such period, based on its percentage ownership interest in such
Partially-Owned Entity (or such other amount to which the Borrower, the Trust or such Subsidiary is
entitled or for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s
length agreement).


 


6









 





Consolidated Fixed Charges. For any applicable period, an amount equal to the sum of
(i) Consolidated Total Interest Expense for such period plus (ii) the aggregate amount of
scheduled principal payments of Indebtedness (excluding balloon payments at maturity) required to
be made during such period by the Borrower, the Trust and their respective Subsidiaries on a
Consolidated basis plus (iii) the dividends and distributions, if any, paid or
required to be paid during such period on the Preferred Equity, if any, of the Borrower, the Trust
and their respective Subsidiaries (other than dividends paid in the form of capital stock), in the
case of clauses (i) and (ii), adjusted to include the Borrower’s, the Trust’s or any Subsidiary’s
pro rata share of the foregoing items of any Partially-Owned Entity in such period,
based on its percentage ownership interest in such Partially-Owned Entity (or such other amount for
which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement).



Consolidated Gross Asset Value. As of any date of determination, an amount equal to,
without double-counting, the sum of (i) for all Stabilized Real Estate Assets, the aggregate of the
following amount determined for each such asset, (x) the Net Operating Income of each Stabilized
Real Estate Asset for the most recently ended fiscal quarter, multiplied by (y) 4,
with the product thereof being divided by (z) the applicable Capitalization Rate;
plus (ii) an amount equal to the aggregate Cost Basis Value of Real Estate Assets Under
Development on such date, plus (iii) the Cost Basis Value of Land on such date,
plus (iv) an amount equal to the aggregate Cost Basis Value of Value-Add Real Estate Assets
on such date, plus (v) the Structured Finance Investments Value on such date, plus
(vi) the value of Cash and Cash Equivalents on such date, as determined in accordance with GAAP and
approved by the Agent, provided that (a) Net Operating Income from Real Estate
Assets acquired during the most recently ended fiscal quarter and the immediately preceding fiscal
quarter shall be excluded, and such acquired Real Estate Assets shall be included at their Cost
Basis Value and (b) Net Operating Income from Real Estate Assets sold or otherwise transferred
during the most recently ended fiscal quarter shall be excluded, with Consolidated Gross Asset
Value being adjusted to include, without double-counting any amounts included in the Structured
Finance Investments Value, the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of Net
Operating Income (and the items comprising Net Operating Income) from any Partially-Owned Entity in
such period, based on its percentage ownership interest in such Partially-Owned Entity (or such
other amount to which the Borrower, the Trust or such Subsidiary is entitled based on an arm’s
length agreement).



Consolidated Tangible Net Worth. As of any date of determination, an amount equal to
the Consolidated Gross Asset Value of the Borrower and its Subsidiaries at such date, minus
Consolidated Total Indebtedness outstanding on such date, provided that any amounts
attributable to Real Estate Assets that are required to be reported as “intangibles” under GAAP
pursuant to Financial Accounting Standards Board Statement of Policy No. 141 and 142 shall be
permitted to be added back to “tangible property” for purposes of calculating such Consolidated
Tangible Net Worth.



Consolidated Total Indebtedness. As of any date of determination, Consolidated Total
Indebtedness means for the Borrower, the Trust and their respective Subsidiaries, all obligations,
contingent or otherwise, which should be classified on the obligor’s balance sheet as liabilities,
or to which reference should be made by footnotes thereto, all in accordance with GAAP, including
in any event and whether or not so classified, the sum of (without double-counting), all
Indebtedness outstanding on such date, in each case whether Recourse, Without Recourse or
contingent, provided, however, that Accounts Payable, amounts not drawn under the
Revolving Credit Loans on such date and all obligations under any Swap Contracts (other than, for
the avoidance of doubt, obligations with respect to any forward purchase contract or put) shall not
be included in calculating Consolidated Total Indebtedness, and



 


7









 






provided, further,
that (without double-counting), each of the following shall be included in Consolidated Total Indebtedness:
(a) all amounts of guarantees, indemnities for borrowed money, stop-loss agreements and the like
provided by the Borrower, the Trust and their respective Subsidiaries, in each case in connection
with and guarantying repayment of amounts outstanding under any other Indebtedness; (b) all amounts
for which a letter of credit (including the Letters of Credit) has been issued for the account of
the Borrower, the Trust or any of their respective Subsidiaries; (c) all amounts of bonds posted by
the Borrower, the Trust or any of their respective Subsidiaries guaranteeing performance or payment
obligations; (d) any obligations under any Capital Lease (but excluding obligations under operating
leases or ground leases), the amount of which as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date; and (e) all liabilities of the
Borrower, the Trust or any of their respective Subsidiaries as partners, members or the like for
liabilities (whether such liabilities are Recourse, Without Recourse or contingent obligations of
the applicable partnership or other Person) of partnerships or other Persons in which any of them
have an Equity Interest, which liabilities are for borrowed money or any of the matters listed in
clauses (a), (b), (c) or (d) above. Without limitation of the foregoing (without double counting),
with respect to any Partially-Owned Entity, (x) to the extent that the Borrower, the Trust or any
of their respective Subsidiaries or such Partially-Owned Entity is providing a completion guaranty
in connection with a construction loan entered into by a Partially-Owned Entity, Consolidated Total
Indebtedness shall include the Borrower’s, the Trust’s or such Subsidiary’s pro
rata liability under the Indebtedness relating to such completion guaranty (or, if greater,
the Borrower’s, the Trust’s or such Subsidiary’s potential liability under such completion
guaranty) and (y) in connection with the liabilities described in clauses (a) and (d) above (other
than completion guarantees, which are referred to in clause (x)), the Consolidated Total
Indebtedness shall include the portion of the liabilities of such Partially-Owned Entity which are
attributable to the Borrower’s, the Trust’s or such Subsidiary’s percentage Equity Interest in such
Partially-Owned Entity or such greater amount of such liabilities for which the Borrower, the Trust
or their respective Subsidiaries are, or have agreed to be, liable by way of guaranty, indemnity
for borrowed money, stop-loss agreement or the like, it being agreed that, in any case,
Indebtedness of a Partially-Owned Entity shall not be excluded from Consolidated Total Indebtedness
by virtue of the liability of such Partially-Owned Entity being Without Recourse. For purposes
hereof, the amount of borrowed money shall equal the sum of (1) the amount of borrowed money as
determined in accordance with GAAP plus (2) the amount of those contingent liabilities for
borrowed money set forth in subsections (a) through (e) above, but shall exclude any adjustment for
so called “straight line interest accounting”.



Consolidated Total Interest Expense. For any applicable period, the aggregate amount
of interest required in accordance with GAAP to be paid, accrued, expensed or, to the extent it
could be a cash expense in the applicable period, capitalized (but excluding any deferred financing
costs), without double-counting, by the Borrower, the Trust and their respective Subsidiaries
during such period on: (i) all Indebtedness of the Borrower, the Trust and their respective
Subsidiaries (including the Loans, obligations under Capital Leases (to the extent Consolidated
EBITDA has not been reduced by such Capital Lease obligations in the applicable period) and any
Subordinated Indebtedness and including original issue discount and amortization of prepaid
interest, if any, but excluding any Distribution on Preferred Equity), (ii) all amounts available
for borrowing, or for drawing under letters of credit (including the Letters of Credit), if any,
issued for the account of the Borrower, the Trust or any of their respective Subsidiaries, but only
if such interest was or is required to be reflected as an item of expense, and
(iii) all commitment fees, agency fees, facility fees, balance deficiency fees and similar
fees and expenses in connection with the borrowing of money, in each case adjusted to include the
Borrower’s, the Trust’s or any Subsidiary’s pro rata share of the foregoing items
of any Partially-Owned Entity in such period, based on its percentage ownership interest in such
Partially-Owned Entity (or such other amount for which the Borrower, the Trust or such Subsidiary
is obligated based on an arm’s length agreement).


 


8









 





Conversion Request. A notice given by the Borrower to the Agent of its election to
convert or continue a Loan in accordance with §2.5.



Core FFO. For any applicable period, with respect to the Borrower and its
Subsidiaries, consolidated “funds from operations” less all acquisition costs, gains or losses on
early retirement of debt, contingent consideration and impairment charges to the extent the same
are taken into account in calculating consolidated “funds from operations”.



Cost Basis Value. The total contract purchase price of a Real Estate Asset plus all
commercially reasonable acquisition costs (including but not limited to title, legal and settlement
costs, but excluding financing costs) that are capitalized in accordance with GAAP.



DC Office Properties. Real Estate Assets constituting multi-story office properties
located within the District of Columbia.



Debtor Relief Laws. The Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



Default. When used with reference to this Agreement or any other Loan Document, an
event or condition specified in §14.1 that, but for the requirement that time elapse or notice be
given, or both, would constitute an Event of Default.



Defaulting Lender. Subject to §4.12.2, any Lender that, as determined by the Agent,
(a) has failed to perform any of its funding obligations hereunder, including in respect of its
Loans or participations in respect of Letters of Credit or Swingline Loans, within three Business
Days of the date required to be funded by it hereunder, (b) has notified the Borrower, the Agent or
any Lender that it does not intend to comply with its funding obligations or has made a public
statement to that effect with respect to its funding obligations hereunder or under other
agreements in which it commits to extend credit, (c) has failed, within three Business Days after
request by the Agent, to confirm in a manner satisfactory to the Agent that it will comply with its
funding obligations, or (d) has, or has a direct or indirect parent company that has, (i) become
the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization
or liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or
appointment; provided that a Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent
company thereof by a governmental authority so long as the ownership of such Equity Interest
does not result in or provide such Lender with immunity from the jurisdiction of courts within
the United States or from the enforcement of judgments or writs of attachment on its assets or
permit such Lender (or such governmental authority) to reject repudiate, disavow or disaffirm any
contracts or agreements made with such Lender.


 


9









 





Disqualifying Environmental Event. Any Release or threatened Release of Hazardous
Substances, any violation of Environmental Laws or any other similar environmental event with
respect to any Eligible Unencumbered Property that could reasonably be expected to cost in excess
of $2,500,000 to remediate or, which, with respect to all of the Eligible Unencumbered Properties,
could reasonably be expected to cost in excess of $5,000,000 in the aggregate to remediate.



Disqualifying Structural Event. Any structural issue which, with respect to any
Eligible Unencumbered Property, could reasonably be expected to cost in excess of $2,500,000 to
remediate or, which, with respect to all of the Eligible Unencumbered Properties, could reasonably
be expected to cost in excess of $5,000,000 in the aggregate to remediate.




Distribution. With respect to:




(i) a Borrower, any distribution of cash or other cash equivalent,
directly or indirectly, to the partners or other equity holders of the
Borrower; or any other distribution on or in respect of any Equity
Interests of the Borrower (other than dividends payable solely in shares
or other Equity Interests by the Borrower); and




(ii) the Trust, the declaration or payment of any dividend on or in
respect of any shares of any class of capital stock or other Equity
Interests of the Trust (other than dividends payable solely in shares of
common stock by the Trust); the purchase, redemption, or other
retirement of any shares of any class of capital stock or other Equity
Interests of the Trust, directly or indirectly through a Subsidiary of
the Trust or otherwise; the return of capital by the Trust to its
shareholders as such; or any other distribution on or in respect of any
 shares of any class of capital stock or other Equity Interests of the
Trust.




Dollars or $. Lawful currency of the United States of America.



Drawdown Date. The date on which any Revolving Credit Loan is made or is to be made,
and the date on which any Revolving Credit Loan is converted or continued in accordance with §2.5.



Eligible Assignee. Any of (a) a commercial bank (or similar financial institution)
organized under the laws of the United States, or any State thereof or the District of Columbia,
and having total assets in excess of $500,000,000; (b) a savings and loan association or savings
bank organized under the laws of the United States, or any State thereof or the District of
Columbia, and having a net worth of at least $100,000,000, calculated in accordance with GAAP; and
(c) a commercial bank (or similar financial institution) organized under the laws of
any other country (including the central bank of such country) which is a member of the
Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of
any such country, and having total assets in excess of $500,000,000, provided that such
bank (or similar financial institution) is acting through a branch or agency located in the United
States of America; (d) a Lender, and (e) an Affiliate of a Lender, provided that such Affiliate
would otherwise meet the criteria set forth in clause (a), (b) or (c) above. In no event will the
Borrower or any Subsidiary or Affiliate of the Borrower be an Eligible Assignee.


 


10









 





Eligible Unencumbered Property(ies). As of any date of determination, an Unencumbered
Asset that: (i) is a Permitted Property, (ii) is free and clear of any Lien other than Liens
permitted to exist pursuant to §9.2, (iii) is not the subject of a Disqualifying Environmental
Event or a Disqualifying Structural Event, and (iv) is wholly-owned in fee simple by (A) the
Borrower or (B) a Wholly-Owned Subsidiary of the Borrower, in each case that becomes a Borrower
hereunder simultaneously with such Unencumbered Asset becoming an Eligible Unencumbered Property
(the foregoing clauses (i) through (iv) being herein referred to collectively as the “Unencumbered
Property Conditions”). Notwithstanding the foregoing, the Redland Property shall be deemed to be
an Eligible Unencumbered Property hereunder so long as the Redland Conditions are satisfied.



Employee Benefit Plan. Any employee benefit plan within the meaning of §3(3) of ERISA
maintained or contributed to by the Borrower or any ERISA Affiliate, other than a Multiemployer
Plan.




Environmental Laws. See §7.18(a).




Environmental Reports. See §7.18



Equity Interest. Any and all shares, partnership or member interests, participations
or other equivalents (however designated) of capital stock of a corporation and any and all
equivalent ownership interests in a Person which is not a corporation and any and all warrants,
options or other rights to purchase any of the foregoing.



ERISA. The Employee Retirement Income Security Act of 1974, as amended and in effect
from time to time.



ERISA Affiliate. Any Person which is treated as a single employer with the Borrower
under §414 of the Code.



ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension Plan
within the meaning of §4043 of ERISA and the regulations promulgated thereunder.




Event of Default. See §14.1.




Extension. See §2.9.



Facility Fee. See §2.3(e).


 


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Federal Funds Effective Rate. For any day, a fluctuating interest rate per annum equal
to the weighted average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from 3 federal funds brokers of
recognized standing selected by the Agent.




Financial Statement Date. December 31, 2010.




FP Redland Tech. FP Redland Technology Center LP, a Delaware limited partnership.



FP Redland Tech Partnership Agreement. The Amended and Restated Limited Partnership
Agreement, dated November 10, 2010, among Perseus Redland Investments LLC, a Delaware limited
liability company, FP Redland GP, LLC, a Delaware limited liability company, and FP Redland, LLC, a
Delaware limited liability company, as amended from time to time after the date of this Agreement
in compliance with the terms and conditions of this Agreement.




Fronting Bank. KeyBank.



Fronting Exposure. At any time there is a Defaulting Lender, (a) with respect to the
Fronting Bank, such Defaulting Lender’s Commitment Percentage of the outstanding Letter of Credit
Obligations other than Letter of Credit Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s
Commitment Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof.



“funds from operations”. As defined in accordance with resolutions adopted by the
Board of Governors of the National Association of Real Estate Investment Trusts, as in effect at
the applicable date of determination.




GAAP. Generally accepted accounting principles, consistently applied.



Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
§3(2) of ERISA maintained or contributed to by the Borrower or the Trust, as the case may be, or
any ERISA Affiliate of any of them the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.



Guarantor. Collectively, unless referred to in their individual capacities, the Trust
and each of the Subsidiary Guarantors.



Guaranty. The Guaranty, dated as of even date with the Original Credit Agreement,
made by the Trust in favor of the Agent and the Lenders pursuant to which the Trust guarantees to
the Agent and the Lenders (or any Affiliate of a Lender which provides a Protected Interest Rate
Agreement to the Borrower in connection with the Loans) the unconditional payment and
performance of the Obligations, as the same may be modified, amended, restated or reaffirmed
from time to time.


 


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Hazardous Substances. See §7.18(b).




Increase. See §2.8.




Increase Conditions. The satisfaction of each and all of the following:




(i) no Default or Event of Default shall have occurred and be
continuing (both before and after giving effect to the Increase) and all
representations and warranties contained in the Loan Documents shall be
true and correct as of the effective date of the Increase (except to the
extent that such representations and warranties relate expressly to an
earlier date);




(ii) the Increase shall be extended on the same terms and
conditions applicable to the other Loans;




(iii) to the extent any portion of the Increase is committed to by
a third party financial institution or institutions not already a Lender
hereunder, such financial institution shall be an Eligible Assignee and
approved by the Agent (such approval not to be unreasonably withheld or
delayed) and each such financial institution shall have signed a
counterpart signature page becoming a party to this Agreement and a
“Lender” hereunder;




(iv) one or more of the existing Lenders or such other financial
institutions which may become parties hereto incident to the Increase
have committed in writing pursuant to the terms hereof to lend the full
aggregate amount of the Increase;




(v) the Increase shall have been approved by the Agent; and




(vi) the Borrower shall have delivered new Notes or amended and
restated Notes to the extent necessary to reflect each Lender’s
Commitment after giving effect to the Increase.



Indebtedness. With respect to a Person, as of any date of determination, all of the
following (without duplication): (a) all obligations of such Person in respect of money borrowed,
whether direct or indirect, including, without limitation, all Obligations; (b) all obligations of
such Person (other than trade debt incurred in the ordinary course of business), whether or not for
money borrowed (i) represented by notes payable, or drafts accepted, in each case representing
extensions of credit (but only to the extent of any outstanding balance), (ii) evidenced by bonds,
debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness,
conditional sales contracts, title retention debt instruments or other similar instruments, upon
which interest charges are



 


13









 






customarily
paid or that are issued or assumed as full or partial payment for property; (c) any obligations under any Capital Lease (but
excluding obligations under operating leases or ground leases) of such Person, the amount of which
as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as
of such date; (d) all net obligations under any Swap Contract; (e) all obligations of such Person
or any other Person secured by any Lien or other encumbrance existing on property of such Person;
(f) all reimbursement obligations of such Person under or in respect of any letters of credit
(including the Letters of Credit) or acceptances (whether or not the same have been presented for
payment); (g) all obligations of such Person in respect of “off-balance sheet arrangements” (as
defined in Item 303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act of 1933, as
amended from time to time) which such Person would be required to disclose to the SEC; and (h) all
obligations in the nature of those described in clauses (a)-(g) above of other Persons which such
Person has guaranteed or are otherwise recourse to such Person. For the purposes hereof, the
amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date.




Information. See §8.10(d).



Interest Payment Date. As to any Base Rate Loan, the last day of every calendar month
in which such Loan is outstanding, and with respect to any Libor Rate Loan, the last day of the
applicable Interest Period. As to any Swingline Loan, the day such Swingline Loan is due.



Interest Period. With respect to each Revolving Credit Loan, but without duplication
of any other Interest Period, (a) initially, the period commencing on the Drawdown Date of such
Loan and ending on the last day of one of the following periods (as selected by the Borrower in a
Completed Loan Request): (i) for any Base Rate Loan, the calendar month in which such Base Rate
Loan is made (whether by borrowing or by conversion from a Libor Rate Loan), and (ii) for any Libor
Rate Loan, 1, 2 or 3 months; and (b) thereafter, each period commencing at the end of the last day
of the immediately preceding Interest Period applicable to such Revolving Credit Loan and ending on
the last day of the applicable period set forth in (a)(i) and (ii) above (as selected by the
Borrower in a Conversion Request); provided that all of the foregoing provisions relating to
Interest Periods are subject to the following:




(vii) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, such
Interest Period shall end on the next succeeding LIBOR Business Day,
unless such next succeeding LIBOR Business Day occurs in the next
calendar month, in which case such Interest Period shall end on the next
preceding LIBOR Business Day, as determined conclusively by the Agent in
accordance with the then current bank practice in London;




(viii) if the Borrower shall fail to give notice of conversion as
provided in §2.5, the Borrower shall be deemed to have requested a
conversion of the affected Libor Rate Loan to a Base Rate Loan on the
last day of the then current Interest Period with respect thereto;


 


14









 






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




(x) no Interest Period may extend beyond the Maturity Date.




Interest Rate Protection Arrangements. See §8.15



Investments. All expenditures made and all liabilities incurred (contingently or
otherwise, but without double-counting): (i) for the acquisition of stock, partnership or other
Equity Interests or for the acquisition of Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, any Person; (ii) in connection with Real Estate Assets
Under Development; and (iii) for the acquisition of any other obligations of any Person. In
determining the aggregate amount of Investments outstanding at any particular time: (a) there shall
be deducted in respect of each such Investment any amount received as a return of capital (but only
by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating
distribution); (b) there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise; and (c) there shall not
be deducted from the aggregate amount of Investments any decrease in the value thereof.



ISP. With respect to any Letter of Credit, the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of issuance).



Joinder Documents. The one or more Joinder Agreements among the Agent (on behalf of
itself and the Lenders) and any Wholly-Owned Subsidiary which is to become a Borrower at any time
after the Closing Date, the form of which is attached hereto as Exhibit E, together with
all other documents, instruments and certificates required by any such Joinder Agreement to be
delivered by such Wholly-Owned Subsidiary to the Agent and the Lenders on the date such
Wholly-Owned Subsidiary becomes a Borrower hereunder.




Land. An undeveloped Real Estate Asset owned in fee by the Borrower.



Leases. Leases, licenses and other written agreements relating to the use or
occupation of space in or on the Buildings or on the Real Estate Assets by persons other than the
Borrower or any other member of the Potomac Group.



Lenders. Collectively, KeyBank and each other lending institution which, as of any
date of determination, is a party to this Agreement, and any other Person who becomes an assignee
of any rights of a Lender pursuant to §20 or a Person who acquires all or substantially all of the
stock or assets of a Lender.



Letter of Credit Application. See §5.1.1.


 


15









 






Letter of Credit Fee. See §2.3(f).



Letter of Credit Obligations. As at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate amount of all
Reimbursement Obligations. For all purposes of this Agreement, if on any date of determination a
Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of
the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in
the amount so remaining available to be drawn.




Letter of Credit Participation. See §5.1.4.



Letters of Credit. Any standby letter of credit issued pursuant to §5.1.1 and any
“Letter of Credit” outstanding on the Closing Date issued and as defined under the Original Credit
Agreement.



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



Libor Breakage Costs. With respect to any Libor Rate Loan to be prepaid prior to the
end of the applicable Interest Period or not borrowed, converted or continued (“drawn” and, with
correlative meaning, “draw”) after elected, a prepayment “breakage” fee in an amount, as reasonably
determined by the Agent, required to compensate the Lenders for any and all additional losses,
costs or expenses that such Lenders incur as a result of such prepayment or failure to borrow,
convert or continue a Libor Rate Loan, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of
deposits of other funds acquired by any Lender to fund or maintain such Libor Rate Loan.



Libor Rate. For any Libor Rate Loan for any Interest Period, the average rates as
shown in Reuters Screen LIBOR01 Page (or any successor service) at which deposits in U.S. dollars
are offered by first class banks in the London Interbank Market at approximately 11:00 a.m. (London
time) on the day that is two (2) Libor Business Days prior to the first day of such Interest Period
with a maturity approximately equal to such Interest Period and in an amount approximately equal to
the amount to which such Interest Period relates, adjusted for reserves and taxes if required by
future regulations. If Reuters no longer reports such rate or Agent determines in good faith that
the rate so reported no longer accurately reflects the rate available to Agent in the London
Interbank Market, then any and all outstanding Loans shall be Base Rate Loans and bear interest at
the Base Rate plus the Applicable Base Rate Margin. For any period during which a Reserve
Percentage shall apply, the Libor Rate with respect to Libor Rate Loans shall be equal to the
amount determined above divided by an amount equal to 1 minus the Reserve Percentage.




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




Lien. See §9.2.


 


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Loan Documents. Collectively, this Agreement, the Guaranty, each Subsidiary Guaranty
and any reaffirmation thereof, the Notes, the Letters of Credit, the Letter of Credit Applications,
the Joinder Documents and any and all other agreements, instruments, documents or certificates
now or hereafter evidencing or otherwise relating to the Loans and executed and delivered by or on
behalf of the Borrower or its Subsidiaries or the Trust or its Subsidiaries in connection with or
in any way relating to the Loans or the transactions contemplated by this Agreement (other than any
Protected Interest Rate Agreement), and all schedules, exhibits and annexes hereto or thereto, as
any of the same may from time to time be amended and in effect.




Loans. The Revolving Credit Loans and the Swingline Loans.



Majority Lenders. As of any date of determination, the Lenders whose aggregate
Commitments (excluding the Swingline Commitment) constitute at least sixty-six and two-thirds
percent (66-2/3%) of the Total Commitment (or, if the Commitments have been terminated, the Lenders
whose aggregate Commitments (excluding the Swingline Commitment), immediately prior to such
termination, constituted at least sixty-six and two-thirds percent (66-2/3%) of the Total
Commitment), provided that at any time when there are two or more Lenders, the Majority
Lenders must include at least two Lenders, and further provided that the Commitment of any
Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders.



Material Adverse Effect. A (a) material adverse effect on the business, operations,
assets, condition (financial or otherwise) or properties of the Trust or FPLP or, taken as a whole,
the Potomac Group, (b) a material impairment of the ability of FPLP or the Trust or, taken as a
whole, the First Potomac Group, to fulfill the Obligations (including, without limitation, to repay
all amounts outstanding on the Loans, together with interest and charges thereon when due), (c) a
material adverse effect on the validity or enforceability of any of the Loan Documents, or (d) a
material impairment of the rights and remedies of the Lenders and the Agent under any of the Loan
Documents.



Maturity Date. January 15, 2014, or such earlier date (or later date pursuant to
§2.9) on which the Revolving Credit Loans shall become due and payable pursuant to the terms
hereof. The Maturity Date may be extended to January 15, 2015 subject to and in accordance with
the terms of §2.9.



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



Minimum Liquidity. As of any date of determination, an amount equal to the
Availability as of such date (as described in clause (ii) of the definition of Availability) minus,
without duplication, the aggregate amount of (x) Unsecured Consolidated Total Indebtedness
outstanding on such date and (y) New Debt outstanding on such date.



Minimum Liquidity Threshold. Minimum Liquidity in an amount not less than (i)
$30,000,000 from the Closing Date through January 15, 2012, (ii) $25,000,000 from January 16, 2012
through January 15, 2013 and (iii) $20,000,000 thereafter.


 


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Mortgage Note(s). A mortgage note, in which the Borrower holds a direct interest as
payee, for real estate that is developed, so long as at the relevant date of determination, such
Mortgage Note is not in default.



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



Negative Pledge. With respect to a given asset, any provision of a document,
instrument or agreement (other than any Loan Document or Protected Interest Rate Agreement) which
prohibits or purports to prohibit the creation or assumption of any Lien on such asset as security
for Indebtedness of the Person owning such asset or any other Person.



Net Operating Income. For any period, an amount equal to (i) the aggregate rental and
other income from the operation of the applicable Real Estate Assets during such period;
minus (ii) all expenses and other proper charges incurred in connection with the operation
of such Real Estate Assets (including, without limitation, real estate taxes, management fees (or
Overhead Allocation, as applicable), payments under ground leases and bad debt expenses) during
such period; but, in any case, before payment of or provision for debt service charges for such
period, income taxes for such period, capital expenses for such period, and depreciation,
amortization, and other non-cash expenses for such period, all as determined in accordance with
GAAP (except that any rent leveling adjustments shall be excluded from rental income).



New Debt. Indebtedness secured by partnership or other ownership interests in Real
Estate Assets incurred by the Borrower after the date hereof pursuant to §9.1(f) that is not fully
supported by one or more unencumbered Real Estate Assets (not including the Eligible Unencumbered
Properties), and for the avoidance of doubt, the 2007 Term Loan and the 2008 Term Loan and any
refinancing of any thereof on substantially the same structure and collateral therefor shall not
constitute New Debt, unless the 2007 Term Loan or the 2008 Term Loan, as the case may be, is
increased above the principal amount thereof on the date hereof.




Note Record. A Record with respect to any Note.




Notes. The Revolving Credit Notes and the Swingline Note.



Obligations. All indebtedness, obligations and liabilities of the Borrower and its
Subsidiaries to any of the Lenders or the Agent, individually or collectively (but without
double-counting), under this Agreement and each of the other Loan Documents and in respect of any
of the Loans, the Notes and Reimbursement Obligations incurred and the Letter of Credit
Applications and the Letters of Credit and other instruments at any time evidencing any thereof,
whether existing on the date of this Agreement or arising or incurred hereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or otherwise, and
including any indebtedness, obligations and liabilities of the Borrower and its Subsidiaries under
any Protected Interest Rate Agreement entered into with any Lender, provided that such Protected
Interest Rate Agreement is for the purpose of hedging interest exposure under this Agreement.


 


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Organizational Documents. Collectively, (i) the Agreement of Limited Partnership of
FPLP, (ii) the Certificate of Limited Partnership of FPLP, (iii) the Amended and Restated
Declaration of Trust of the Trust, (iv) the Amended and Restated By-Laws of the Trust, and (v) all
of the partnership agreements, corporate charters and by-laws, limited liability company operating
agreements, joint venture agreements or similar agreements, charter documents and certificates or
other agreements relating to the formation, organization or governance of any Borrower (including,
without limitation, any Wholly-Owned Subsidiary who becomes a Borrower from time to time
hereunder), in each case as any of the foregoing may be amended in accordance with §8.20.




Original Credit Agreement. See the preamble hereto.



Other Properties. All Real Estate Assets that are not DC Office Properties or
Suburban Office Properties.



Overhead Allocation. For any period, the amount of corporate overhead included as a
property operating expense in lieu of a management fee.



Partially-Owned Entity(ies). Any of the partnerships, associations, corporations,
limited liability companies, trusts, joint ventures or other business entities or Persons in which
the Borrower or the Trust, directly, or indirectly through its full or partial ownership of another
entity, own an Equity Interest, but which is not required in accordance with GAAP to be
consolidated with the Borrower or the Trust for financial reporting purposes.



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



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




Permitted Liens. Liens permitted by §9.2.



Permitted Property. A property which is an income producing office, industrial or a
so-called flex property (or a Real Estate Asset Under Development which will be an income producing
office, industrial or so-called flex property when completed) and is located in the State of
Maryland, the Commonwealth of Virginia or the District of Columbia.



Person. Any individual, corporation, general partnership, limited partnership, trust,
limited liability company, limited liability partnership, unincorporated association, business, or
other legal entity, and any government (or any governmental agency or political subdivision
thereof).



Potomac Group. Collectively, (i) FPLP, (ii) the Trust, (iii) the respective
Subsidiaries of FPLP and the Trust and (iv) the Partially-Owned Entities.



Preferred Equity. Any preferred stock, preferred partnership interests, preferred
member interests or other preferred Equity Interests issued by the Borrower, the Trust or any of
their respective Subsidiaries.


 


19









 





Protected Interest Rate Agreement. An agreement which evidences the Interest Rate
Protection Arrangements required by §8.15, and all extensions, renewals, modifications, amendments,
substitutions and replacements thereof.



Rate Period. The period beginning on the first day of any fiscal month following
delivery to the Agent of the annual or quarterly financial statements required to be delivered
pursuant to §8.4(a) or §8.4(b) and ending on the last day of the fiscal month in which the next
such annual or quarterly financial statements are delivered to the Agent.




RCRA. See §7.18.



Real Estate Assets. The fixed and tangible properties consisting of Land and/or
Buildings owned by the Borrower or any of its Subsidiaries at the relevant time of reference
thereto, including, without limitation, the Eligible Unencumbered Properties at such time of
reference.



Real Estate Assets Under Development. A Real Estate Asset that is under development
or substantial redevelopment. A Real Estate Asset Under Development shall cease to constitute a
Real Estate Asset Under Development on the earlier of (a) the one-year anniversary date of the
development or redevelopment completion, and (b) the first day of the first full fiscal quarter
after such Real Estate Asset achieves a stabilized occupancy of 80%.



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



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



Redland Property. That certain Real Estate Asset owned by FP Redland Technology
Center LP commonly known as Land Units 2 and 3 in the Redland Tech Center Land Condominium formed
pursuant to the Declaration of Condominium for Redland Tech Center Land Condominium recorded in
Liber 19839 at folio 681 in the land records of Montgomery County, Maryland, as amended, and
located at 520 and 530 Gaither Road, Rockville, Maryland, together with all easements,
appurtenances, rights, privileges, reservations, tenements, and hereditaments belonging thereto.


 


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Redland Conditions. (a) The Redland Property is an Unencumbered Property that
conforms with all of the Unencumbered Property Conditions other than the condition set forth in
clause (iv) of the definition of Eligible Unencumbered Property(ies), (b) the Redland Property is
wholly-owned in fee simple by FP Redland Tech, (c) the Organizational Documents of FP Redland Tech
are not modified, amended or supplemented in any respect whatsoever if the same could reasonably be
expected to adversely affect the rights of the Agent and the Lenders hereunder or under any other
Loan Document without the express prior written consent of the
Agent, and in any event, Sections 3.7, 6.1, 6.3, and 6.4, Article VIII, and Exhibit D of the
FP Redland Tech Partnership Agreement are not modified, amended or supplemented in any respect
whatsoever without the express prior written consent of the Agent, provided, however, such
Organizational Documents may be amended without the consent of the Agent in order to change FP
Redland Tech from a limited partnership to a limited liability company so long as such
Organizational Documents are not modified, amended or supplemented to the extent otherwise
prohibited by this clause (iv) in connection therewith and the Borrower provides the Agent with
notice thereof and copies of the documents amending such Organizational Documents to effect such
change.




Reimbursement Obligation. See §5.2.



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



Related Parties. With respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.




Release. See §7.18(c)(iii).



Reserve Percentage. The maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed on member banks of the Federal Reserve
System against “Euro-currency Liabilities” as defined in Regulation D.



Revolving Credit Loan(s). Each and every revolving credit loan made or to be made by
the Lenders to the Borrower pursuant to §2 or §5.3, and excluding, in any event, all Swingline
Loans.



Revolving Credit Notes. Collectively, the separate promissory notes of the Borrower
in favor of each Lender in substantially the form of Exhibit A hereto, in an aggregate
principal amount equal to the Total Commitment in effect from time to time, dated as of even date
with the Original Credit Agreement or as of such later date as any Person became a Lender under the
Original Credit Agreement or becomes a Lender under this Agreement, and completed with appropriate
insertions, as each of such notes may be amended, replaced, substituted and/or restated from time
to time (including in connection with any Increase).




SARA. See §7.18.




SEC. The Securities and Exchange Commission, or any successor thereto.



SEC Filings. Collectively, (i) each Form 10-K, 10-Q and Form 8-K filed by the Trust
with the SEC from time to time and (ii) each of the other public forms and reports filed by the
Trust with the SEC from time to time.



Secured Indebtedness. All Indebtedness of a Person that is secured by a Lien
evidenced by a mortgage, deed of trust, assignment of partnership interests or other security
interest or otherwise.


 


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Stabilized Real Estate Asset. Any Real Estate Asset that is not a Real Estate Asset
Under Development, a Value-Add Real Estate Asset or Land.



Structured Finance Investments. Collectively, Investments by a Borrower or one of its
Subsidiaries directly or indirectly in (i) Mortgage Notes, (ii) mezzanine loans evidenced by
promissory notes in which the Borrower holds a direct interest as payee, to entities that hold
direct or indirect interests in DC Office Properties, and (iii) Investments in preferred equity
(including preferred limited partnership interests) in entities owning DC Office Properties.



Structured Finance Investments Value. As of any date of determination, an amount
equal to the aggregate value of all Structured Finance Investments, with the value of each
Structured Finance Investment being deemed to be the lower of (i) the acquisition or origination
cost of such Structured Finance Investment plus all commercially reasonable costs that are
capitalized in accordance with GAAP incurred in connection with the acquisition or origination of
such Structured Finance Investment, and (ii) the value of such Structured Finance Investment
determined in accordance with GAAP; provided, however, that in the case of any
Structured Finance Investment in respect of which the obligor is in default of any payment
obligation, the Structured Finance Investments Value shall be zero.



Subsidiary. Any corporation, association, partnership, limited liability company,
trust, joint venture or other business entity or Person which is required to be consolidated with
the Borrower or the Trust in accordance with GAAP.



Subsidiary Guarantors. The Subsidiaries identified on Annex I to this Agreement,
together with any additional Subsidiaries that deliver any guaranty or joinder agreement to the
Subsidiary Guaranty pursuant to §8.21



Subsidiary Guaranty. The Guaranty of even date herewith made by the Subsidiary
Guarantors in favor of the Agent and the Lenders, together with any additional guaranty of the
Obligations or joinder agreement to any existing guaranty of the Obligations provided by any
Subsidiary Guarantor hereafter, as the same may be modified, amended, restated or reaffirmed from
time to time.



Suburban Office Properties. Real Estate Assets constituting multi-story office
buildings located in the suburbs of the District of Columbia.



Swap Contract. (a) Any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any related schedules, a
“Master Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


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Swap Termination Value. In respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).



Swingline Commitment. The obligation of the Swingline Lender to make Swingline Loans
to the Borrower in a maximum aggregate principal amount not exceeding at any time Ten Million
Dollars ($10,000,000).



Swingline Lender. KeyBank, in its capacity as swingline lender hereunder, or any
Eligible Assignee of KeyBank who executes an Assignment and Assumption assuming KeyBank’s
obligations as Swingline Lender.



Swingline Loans. Collectively, the loans in the maximum aggregate principal amount of
the Swingline Commitment made or to be made by the Swingline Lender to the Borrower pursuant to
§2.10.




Swingline Loan Amount. See §2.10(b).



Swingline Note. The promissory note substantially in the form of Exhibit A-1
hereto of the Borrower in favor of the Swingline Lender, in a principal amount equal to the
Swingline Commitment and evidencing the Swingline Loans made thereunder, dated as of the Original
Credit Agreement and completed with appropriate insertions, as the same may be amended, replaced,
substituted and/or restated from time to time.



Swingline Termination Date. The date which is no later than the 15th day preceding
the Maturity Date.



Total Commitment. As of any date, the sum of the then current Commitments of the
Lenders. As of the Closing Date, the Total Commitment (including the Swingline Commitment) is
$255,000,000. After the Closing Date, the aggregate amount of the Total Commitment (inclusive of
Swingline Commitment) may be increased to an amount not exceeding $350,000,000, provided that such
Increase is subject to and shall be effected in accordance with the provisions of §2.8.




Trust. See recitals.



2007 Term Loan. The term loan in the original principal amount of $50,000,000 made
pursuant to that certain Secured Term Loan Agreement dated as of August 7, 2007 among FPLP, KeyBank
National Association, as administrative agent and certain lenders party thereto, as amended and in
effect from time to time.


 


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2008 Term Loan. The term loan in the original principal amount of $35,000,000
(subsequently increased to $50,000,000) made pursuant to that certain Secured Term Loan Agreement
dated as of August 11, 2008 among FPLP, KeyBank National Association, as administrative agent and
certain lenders party thereto, as amended and in effect from time to time.



2010 Term Loan. The term loan in the original principal amount of $50,000,000 made
pursuant to that certain Secured Term Loan Agreement dated as of November 10, 2010 among FPLP,
KeyBank National Association, as administrative agent, and certain lenders party thereto, as
amended and in effect from time to time.



Type. As to any Revolving Credit Loan, its nature as a Base Rate Loan or a Libor Rate
Loan.



Unanimous Lender Approval. The written consent of each Lender that is a party to this
Agreement at the time of reference.



Unencumbered Asset. Any Real Estate Asset that on any date of determination is not
subject to any Liens (except for Permitted Liens).



Unencumbered Land. The Real Estate Asset commonly referred to as the Sterling Park
Land Parcel, so long as such Real Estate Asset is not subject to any Liens, except for Permitted
Liens.



Unencumbered Pool. As determined from time to time, collectively, the Eligible
Unencumbered Properties that the Borrower has designated in writing to be included in the
Unencumbered Pool, subject to and in accordance with the terms hereof.



Unencumbered Pool Percentage. As of (i) the Closing Date and prior to December 31,
2011, 62.5% and (ii) December 31, 2011 and thereafter, 60%.



Unencumbered Pool Capital Reserve. As at any date of determination, a capital reserve
equal to the total number of square feet of the Eligible Unencumbered Properties on such date,
multiplied by $0.15.



Unencumbered Property Conditions. See definition of “Eligible Unencumbered
Property(ies)”.




USA Patriot Act. See §31(a).



Unsecured Consolidated Total Indebtedness. As of any date of determination, the
aggregate principal amount of Consolidated Total Indebtedness outstanding at such date (including
all Obligations), that is not secured by a Lien evidenced by a mortgage, deed of trust, assignment
of partnership interests or other security interest or otherwise; provided that,
with respect to FP Redland Tech, the items included in the calculation of Unsecured Consolidated
Total Indebtedness shall be adjusted to include FPLP’s or its Wholly-Owned Subsidiary’s pro rata
share of such items attributable to the period in question, based on FPLP’s or its Wholly-Owned
Subsidiary’s percentage ownership interests in FP Redland Tech (or such other amount
as to which FPLP or its Wholly-Owned Subsidiary are, or have agreed to be, liable by way of
guaranty, indemnity for borrowed money, stop-loss agreement or other agreement).


 


24









 





Unsecured Interest Expense. For any period of determination, Consolidated Total
Interest Expense for such period attributable to the Unsecured Consolidated Total Indebtedness of
the Borrower, the Trust and their respective Subsidiaries.



Value-Add Real Estate Assets. Any newly acquired Real Estate Asset that is less than
50% occupied at the time of acquisition. A Value-Add Real Estate Asset shall cease to constitute a
Value-Add Real Estate Asset at the earlier of (a) the first day of the first full fiscal quarter
after such Real Estate Asset achieves a stabilized occupancy of 80%, and (b) the one-year
anniversary of such Real Estate Asset’s acquisition date; provided that the Redland
Property shall be deemed a Value-Add Real Estate Asset until the earlier of (x) the date that the
value of the Redland Property calculated in accordance with clause (i) of the definition of Value
of Unencumbered Properties exceeds the Cost Basis Value of the Redland Property (valued at the
contract price paid by FPLP to acquire its interest in FP Redland Tech) and (y) June 30, 2012.



Value of Unencumbered Properties. At any date of determination, an amount equal to,
without double-counting, the sum of (i) for all Stabilized Real Estate Assets, the aggregate of the
following amount determined for each such asset, (x) the Net Operating Income for the most recently
ended fiscal quarter of each Eligible Unencumbered Property that is a Stabilized Real Estate Asset,
multiplied by (y) 4, with the product thereof being divided by (z)
the applicable Capitalization Rate, plus, (ii) an amount equal to the aggregate Cost Basis
Value of all Eligible Unencumbered Properties that are Value-Add Real Estate Assets, plus
(iii) an amount equal to the aggregate Cost Basis Value of all Eligible Unencumbered Properties
that are Real Estate Assets Under Development, plus (iv) the aggregate Cost Basis Value of
all Eligible Unencumbered Properties acquired during the most recently ended fiscal quarter and the
immediately preceding fiscal quarter, plus (v) the Cost Basis Value of the Unencumbered
Land, provided that (a) the Net Operating Income attributable to any Eligible
Unencumbered Property sold or otherwise transferred during the applicable period shall be excluded
from the calculation of the Value of Unencumbered Properties, (b) the Net Operating Income of
Eligible Unencumbered Properties included at their Cost Basis Value shall be excluded, (c) the
value included as a result of clauses (ii) and (iii) above in the aggregate shall not exceed twenty
percent (20%) of the aggregate Value of Unencumbered Properties at any time, and (d) with respect
to the Redland Property, the Net Operating Income or Cost Basis Value, as applicable, included in
the calculation of the Value of Unencumbered Properties shall be FPLP’s or its Wholly-Owned
Subsidiary’s (i) pro rata share of Net Operating Income (and the items comprising Net Operating
Income) for the period in question, based on FPLP’s or its Wholly-Owned Subsidiary’s percentage
ownership interest in FP Redland Tech (or such other amount to which FPLP or its Wholly-Owned
Subsidiary is entitled based on an arm’s length agreement) or (ii) Cost Basis Value (valued at the
contract price paid by FPLP to acquire its interest in FP Redland Tech), as applicable.



Wholly-Owned Subsidiary. Any single purpose entity which is a Subsidiary of FPLP and
of which FPLP at all times owns directly or indirectly (through a Subsidiary or Subsidiaries) 100%
of the outstanding voting or controlling interests and of the economic interests.


 


25









 





“Without Recourse” or “without recourse”. With reference to any obligation or
liability, any obligation or liability for which the obligor thereunder is not liable or obligated
other than as to its interest in a designated Real Estate Asset or other specifically identified
asset only, subject to such limited exceptions to the non-recourse nature of such obligation or
liability, such as fraud, misappropriation and misapplication indemnities, as are usual and
customary in like transactions involving institutional lenders at the time of the incurrence of
such obligation or liability, and to usual and customary environmental indemnification obligations
in connection with such designated Real Estate Asset.




§1.2 Rules of Interpretation.




(i) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms or the terms of this Agreement.




(ii) The singular includes the plural and the plural includes the
singular.




(iii) A reference to any law includes any amendment or modification
to such law.




(iv) A reference to any Person includes its permitted successors
and permitted assigns.




(v) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on
a consistent basis by the accounting entity to which they refer.




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




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




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




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


 


26









 






§1.3 GAAP. If at any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in any Loan Document, and either the Borrower or the Majority
Lenders shall so request, the Agent, the Lenders and the Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof in light of
such change in GAAP (subject to the approval of the Majority Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall provide to the Agent and the
Lenders financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between calculations of such
ratio or requirement made before and after giving effect to such change in GAAP. For
purposes of determining compliance with any covenant (including the computation of any
financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries
shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the
effects of FASB ASC 825 on financial liabilities shall be disregarded.




§2. THE REVOLVING CREDIT FACILITY.




§2.1 Commitment to Lend. Subject to the provisions of §2.4 and the other terms
and conditions set forth in this Agreement, each of the Lenders severally agrees to lend to
the Borrower, and the Borrower may borrow, repay, and reborrow from each Lender from time to
time between the Closing Date and the Maturity Date upon notice by the Borrower to the Agent
(with copies to the Agent for each Lender) given in accordance with §2.4, such sums as are
requested by the Borrower up to a maximum aggregate principal amount outstanding (after
giving effect to all amounts requested) at any one time equal to such Lender’s Commitment
minus, without double counting, an amount equal to such Lender’s Commitment Percentage
multiplied by the sum of (i) all Reimbursement Obligations to the extent not yet deemed
Revolving Credit Loans and the Maximum Drawing Amount and (ii) the outstanding principal
amount of the Swingline Loans; provided that the sum of the outstanding amount of the
Revolving Credit Loans (after giving effect to all amounts requested), plus the Maximum
Drawing Amount and, without double counting the portion, if any, of any Letter of Credit
which is drawn and included in the Revolving Credit Loans, all outstanding Reimbursement
Obligations, plus the outstanding principal amount of the Swingline Loans shall not at any
time exceed the lesser of (i) the Total Commitment and (ii) the Availability at such time,
and provided, further, that at the time the Borrower requests a Revolving Credit Loan and
after giving effect to the making thereof: (i) in the case of any borrowing or other
extension of credit, all of the conditions in §13 (and in the case of the initial borrowing
on the Closing Date, also the conditions in §12) have been met at the time of such request,
and (ii) there has not occurred and is not continuing (or will not occur by reason thereof)
any Default or Event of Default.



The Revolving Credit Loans shall be made pro rata in accordance with each Lender’s Commitment
Percentage. Each request for a Revolving Credit Loan made pursuant to §2.4 shall constitute a
representation and warranty by the Borrower that the conditions set forth in §12 have been
satisfied as of the Closing Date and that the conditions set forth in §13 have been satisfied
on the date of such request and will be satisfied on the proposed Drawdown Date of the
requested Loan or issuance of Letter of Credit, as the case may be, provided that the making of
such representation and warranty by the Borrower shall not limit the right of any Lender not to
lend if such conditions have not been met. No Revolving Credit Loan or other extension of credit
shall be required to be made by any Lender unless all of the conditions contained in §12 have been
satisfied as of the Closing Date with respect to the initial Revolving Credit Loan or issuance of
Letter of Credit, and unless all of the conditions set forth in §13 have been satisfied at the time
of any request for a Revolving Credit Loan or other extension of credit and on the Drawdown Date
therefor.


 


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§2.2 The Revolving Credit Notes. The Revolving Credit Loans shall be evidenced
by the Revolving Credit Notes. A Revolving Credit Note shall be payable to the order of
each Lender in an aggregate principal amount equal to such Lender’s Commitment. The
Borrower irrevocably authorizes each Lender to make or cause to be made, at or about the
time of the Drawdown Date of any Revolving Credit Loan or at the time of receipt of any
payment of principal on such Lender’s Revolving Credit Note, an appropriate notation on such
Lender’s applicable Note Record reflecting the making of such Revolving Credit Loan or (as
the case may be) the receipt of such payment. The outstanding amount of the Revolving
Credit Loans set forth on such applicable Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Lender, but the failure to record, or any
error in so recording, any such amount on such Note Record shall not limit or otherwise
affect the rights and obligations of the Borrower hereunder or under any Revolving Credit
Note to make payments of principal of or interest on any Revolving Credit Note when due.




§2.3 Interest on Revolving Credit Loans; Fees.




(a) Each Base Rate Loan shall bear interest for the period commencing with the Drawdown
Date thereof and ending on the last day of each Interest Period with respect thereto (unless
earlier paid in accordance with §3.2) at a rate equal to the greater of (i) the Base Rate
plus the Applicable Base Rate Margin, and (ii) the one month Libor Rate plus the Applicable
Libor Margin.




(b) Each Libor Rate Loan shall bear interest for the period commencing with the
Drawdown Date thereof and ending on the last day of each Interest Period with respect
thereto (unless earlier paid in accordance with §3.2) at a rate equal to the Libor Rate
determined for such Interest Period plus the Applicable Libor Margin.


 


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(c) With reference to Base Rate Loans and Libor Rate Loans, the “Applicable Base Rate
Margin” and the “Applicable Libor Margin” shall be equal to the percentage determined for
each Rate Period by reference to the Table below (and for the Applicable Margin as of the
Closing Date, based upon the Borrower’s March 31, 2011 financial statements):



Table




Applicable Margin




	 	 	 	 	 	 	 	 	 
	Consolidated Total Leverage	 	 	 	 	 	 
	Ratio	 	Applicable Libor Margin	 	 	Applicable Base Rate Margin	 
	a) greater than 60%
	 	 	3.00	%	 	 	1.75	%
	b) less than or equal to 60% but
greater than 55%
	 	 	2.75	%	 	 	1.50	%
	c) less than or equal to 55% but
greater than 50%
	 	 	2.50	%	 	 	1.25	%
	d) less than or equal to 50% but
greater than 45%
	 	 	2.25	%	 	 	1.00	%
	e) less than or equal to 45%
	 	 	2.00	%	 	 	0.75	%






For purposes of determining the Applicable Base Rate Margin and the Applicable Libor Margin,
the Consolidated Total Leverage Ratio (§10.1 hereof) will be tested quarterly, commencing with the
fiscal quarter of the Borrower ending June 30, 2011, based on the annual or quarterly financial
statements required to be delivered pursuant to §8.4(a) or 8.4(b), respectively. For purposes of
determining the interest rate for any Rate Period hereunder, any interest rate change shall be
effective on the first day of the fiscal month immediately following the date on which the
financial statements required to be delivered pursuant to §8.4(a) or §8.4(b) are delivered to the
Agent, together with a notice to the Agent (which shall be verified by the Agent) specifying any
change in the Applicable Base Rate Margin and/or the Applicable Libor Margin. If the Borrower has
failed to timely deliver the financial statements required to be delivered by it pursuant to
§8.4(a) or §8.4(b), then in addition to the other rights and remedies of the Lenders hereunder, the
Applicable Base Rate Margin and the Applicable Libor Margin that are then in effect shall, at the
Agent’s discretion, be increased to the next highest level until such financial statements are
delivered.




(d) The Borrower unconditionally promises to pay interest on each Revolving Credit Loan
in arrears on each Interest Payment Date with respect thereto, and when the principal of
such Revolving Credit Loan is due (whether at maturity, by reason of acceleration or
otherwise).




(e) The Borrower agrees to pay to the Agent, for the accounts of the Lenders in
accordance with their respective Commitment Percentages, from the Closing Date through the
Maturity Date, a facility fee (the “Facility Fee”) calculated at the rate of 0.25% per
annum, calculated on the average daily amount, during each fiscal quarter or portion
thereof, of the unborrowed portion of the Total Commitment. The Facility Fee
shall be payable quarterly in arrears on the fifth Business Day of each calendar
quarter for the immediately preceding calendar quarter commencing on the first such date
following the Closing Date through the Maturity Date, with a final payment on the Maturity
Date.


 


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(f) The Borrower shall pay to the Agent a Letter of Credit fee (a “Letter of Credit
Fee”) in an amount equal to the Applicable L/C Percentage of the undrawn amount of each
outstanding Letter of Credit, which fee shall be for the accounts of the Lenders (including
the Fronting Bank in its capacity as a Lender) pro rata in accordance with their respective
Commitment Percentages. Each Letter of Credit Fee shall be payable quarterly in arrears on
the fifth Business Day of each calendar quarter for the immediately preceding calendar
quarter, with a final payment on the Maturity Date or any earlier date on which the
Commitments shall terminate (which Letter of Credit Fee shall be pro-rated for any calendar
quarter in which such Letter of Credit is issued, drawn upon or otherwise reduced or
terminated); provided, however, any Letter of Credit Fee otherwise payable for the
account of a Defaulting Lender with respect to any Letter of Credit as to which such
Defaulting Lender has not provided Cash Collateral satisfactory to the Fronting Bank
pursuant to §4.12.2 shall be payable, to the maximum extent permitted by applicable law, to
the other Banks in accordance with the upward adjustments in their respective Commitment
Percentages allocable to such Letter of Credit pursuant to §4.12.1(d), with the balance of
such fee, if any, payable to the Fronting Bank for its own account. The Borrower shall also
pay to the Fronting Bank, for its own account, a fee in an amount equal to 0.125% of the
face amount of each Letter of Credit upon issuance thereof, along with reasonable standard
documentation and service charges for Letters of Credit from time to time, as customarily
charged by Fronting Bank.




(g) The parties understand that the applicable interest rate for the Obligations and
certain fees set forth herein may be determined and/or adjusted from time to time based upon
certain financial ratios and/or other information to be provided or certified to the Agent
and the Lenders by the Borrower (the “Borrower Information”). If it is subsequently
determined that any such Borrower Information was incorrect (for whatever reason, including
without limitation because of a subsequent restatement of earnings by the Borrower) at the
time it was delivered to the Agent, and if the applicable interest rate or fees calculated
for any period were lower than they should have been had the correct information been timely
provided, then, such interest rate and such fees for such period shall be automatically
recalculated using correct Borrower Information. The Agent shall promptly notify Borrower
in writing of any additional interest and fees due because of such recalculation, and the
Borrower shall pay such additional interest or fees due to the Agent, for the account of
each Lender, within five (5) Business Days of receipt of such written notice. Any
recalculation of interest or fees required by this provision shall survive the termination
of this Agreement, and this provision shall not in any way limit any of the Agent’s, the
Fronting Bank’s, or any Lender’s other rights under this Agreement.




§2.4 Requests for Revolving Credit Loans and Letters of Credit.


 


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The following provisions shall apply to each request by the Borrower for a Revolving Credit
Loan and Letter of Credit:




(i) FPLP, for itself and as agent for each other Borrower, shall
submit a Completed Loan Request to the Agent, together with a current
Availability Certificate in the form of Exhibit B-1 hereto.
Except as otherwise provided herein, each Completed Loan Request shall
be in a minimum amount of $500,000 or an integral multiple of $100,000
in excess thereof. Each Completed Loan Request shall be irrevocable and
binding on the Borrower and shall obligate the Borrower to accept the
Revolving Credit Loans or the Letter of Credit requested from the
Lenders on the proposed Drawdown Date.




(ii) Each Completed Loan Request for a Revolving Credit Loan shall
be delivered by the Borrower to the Agent by 10:00 a.m. (x) on the
Business Day before the proposed Drawdown Date of any Base Rate Loan,
and (y) at least two (2) Business Days prior to the proposed Drawdown
Date of any Libor Rate Loan.




(iii) Each Completed Loan Request shall include a completed writing
in the form of Exhibit B hereto specifying: (1) the principal
amount of the Revolving Credit Loan or Letter of Credit requested, (2)
the proposed Drawdown Date of such Revolving Credit Loan or the date on
which such Letter of Credit is requested to be issued, (3) the Interest
Period applicable to such Revolving Credit Loan, and (4) the Type of
such Revolving Credit Loan being requested, and certifying that, both
before and after giving effect to such requested Revolving Credit Loan
or Letter of Credit, no Default or Event of Default exists or will exist
under this Agreement or any other Loan Document and that, after giving
effect to the Requested Revolving Credit Loan or Letter of Credit (and
all other outstanding Revolving Credit Loans and Letters of Credit), the
Borrower is in compliance with Availability.




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




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




(b) both before and after giving effect to the Revolving Credit Loan
to be made pursuant to the Completed Loan Request, all of the
conditions contained in §12 shall have been satisfied as of the
Closing Date, with respect to the initial advance only, and all of
the conditions set forth in §13 shall have been met, including,
without limitation, the condition under §13.1 that there be no
Default or Event of Default under this Agreement.


 


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(v) The Agent will promptly notify each Lender of any Completed
Loan Request for a Revolving Credit Loan and will cause a copy thereof
to be delivered to each Lender on the same Business Day received, or, in
the case of a Libor Rate Loan, the next Business Day, in each case
absent circumstances outside of its control.




§2.5 Conversion Options.




(a) The Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (i) subject to the
further proviso at the end of this §2.5(a) and subject to §2.5(b) and §2.5(d), with respect
to any conversion of a Base Rate Loan to a Libor Rate Loan (or a continuation of a Libor
Rate Loan, as provided in §2.5(b)), the Borrower shall give the Agent at least three (3)
Business Days’ prior written notice of such election, which such notice must be received by
the Agent by 10:00 a.m. on any Business Day; and (ii) no Loan may be converted into a Libor
Rate Loan when any Default or Event of Default has occurred and is continuing. All or any
part of outstanding Revolving Credit Loans of any Type may be converted as provided herein,
provided that each Conversion Request relating to the conversion of a Base Rate Loan to a
Libor Rate Loan shall be for an amount equal to $1,000,000 or an integral multiple of
$100,000 in excess thereof and shall be irrevocable by the Borrower.




(b) Any Revolving Credit Loan of any Type may be continued as such upon the expiration
of the Interest Period with respect thereto (i) in the case of Base Rate Loans,
automatically and (ii) in the case of Libor Rate Loans by compliance by the Borrower with
the notice provisions contained in §2.5(a)(i); provided that no Libor Rate Loan may be
continued as such when any Default or Event of Default has occurred and is continuing but
shall be automatically converted to a Base Rate Loan on the last day of the first Interest
Period relating thereto ending during the continuance of any Default or Event of Default.
The Borrower shall notify the Agent promptly when any such automatic conversion contemplated
by this §2.5(b) is scheduled to occur.




(c) In the event that the Borrower does not notify the Agent of its election hereunder
with respect to any Revolving Credit Loan in accordance with the terms hereof, such Loan
shall be automatically converted to a Base Rate Loan at the end of the applicable Interest
Period.




(d) The Borrower may not request or elect a Libor Rate Loan pursuant to §2.4, elect to
convert a Base Rate Loan to a Libor Rate Loan pursuant to §2.5(a) or elect to continue a
Libor Rate Loan pursuant to §2.5(b) if, after giving effect thereto, there would be greater
than seven (7) Libor Rate Loans then outstanding. Any Loan Request or Conversion Request
for a Libor Rate Loan that would create greater than seven (7) Libor Rate Loans outstanding
shall be deemed to be a Loan Request or Conversion Request for a Base Rate Loan. By way of
explanation of the foregoing, in the event that the Borrower wishes to convert or continue
two or more Loans into one Libor Rate Loan on the same day and for identical Interest
Periods (or borrow an additional Revolving Credit Loan simultaneously with converting or
continuing a
Revolving Credit Loan for identical Interest Periods), such Libor Rate Loan shall
constitute one single Libor Rate Loan for purposes of this clause (d).


 


32









 






(e) The Agent will promptly notify each Lender of any Conversion Request received
pursuant to §2.5(a) or continuation pursuant to §2.5(b) in accordance with its customary
practices.




§2.6 Funds for Revolving Credit Loans.




(a) Subject to the other provisions of this §2, not later than 11:00 a.m. (Cleveland,
Ohio time) on the proposed Drawdown Date of any Revolving Credit Loan, each of the Lenders
will make available to the Agent, at the Agent’s Head Office, in immediately available
funds, the amount of such Lender’s Commitment Percentage of the amount of the requested
Revolving Credit Loan. Upon receipt from each Lender of such amount, the Agent will make
available to the Borrower the aggregate amount of such Revolving Credit Loan made available
to the Agent by the Lenders. All such funds received by the Agent by 11:00 a.m. (Cleveland,
Ohio time) on any Business Day will be made available to the Borrower not later than 2:00
p.m. on the same Business Day; funds received after such time will be made available by not
later than 11:00 a.m. on the next Business Day. The failure or refusal of any Lender to
make available to the Agent at the aforesaid time and place on any Drawdown Date the amount
of its Commitment Percentage of the requested Revolving Credit Loan shall not relieve any
other Lender from its several obligation hereunder to make available to the Agent the amount
of its Commitment Percentage of any requested Revolving Credit Loan but in no event shall
the Agent (in its capacity as Agent) have any obligation to make any funding or shall any
Lender be obligated to fund more than its Commitment Percentage of the requested Revolving
Credit Loan or to increase its Commitment Percentage on account of such failure or
otherwise.




(b) The Agent may, unless notified to the contrary by any Lender prior to a Drawdown
Date, assume that such Lender has made available to the Agent on such Drawdown Date the
amount of such Lender’s Commitment Percentage of the Revolving Credit Loan to be made on
such Drawdown Date, and the Agent may (but it shall not be required to), in reliance upon
such assumption, make available to the Borrower a corresponding amount. If any Lender makes
available to the Agent such amount on a date after such Drawdown Date, such Lender shall pay
to the Agent on demand an amount equal to the product of (i) the average, computed for the
period referred to in clause (iii) below, of the weighted average interest rate paid by the
Agent for federal funds acquired by the Agent during each day included in such period,
multiplied by (ii) the amount of such Lender’s Commitment Percentage of such Revolving
Credit Loan, multiplied by (iii) a fraction, the numerator of which is the number of days
that elapsed from and including such Drawdown Date to the date on which the amount of such
Lender’s Commitment Percentage of such Revolving Credit Loan shall become immediately
available to the Agent, and the denominator of which is 365. A statement of the Agent
submitted to such Lender with respect to any amounts owing under this paragraph shall be
prima facie evidence of the amount due and owing to the Agent by such Lender.


 


33









 






§2.7 Reduction of Commitment. The Borrower shall have the right at any time
and from time to time upon three (3) Business Days’ prior written notice to the Agent to
reduce by $5,000,000 or an integral multiple of $1,000,000 in excess thereof (but not below
$20,000,000 or, if greater, the Maximum Drawing Amount) or terminate entirely the unborrowed
portion of the then Total Commitment, whereupon the Commitments of the Lenders shall be
reduced pro rata in accordance with their respective Commitment Percentages by the amount
specified in such notice or, as the case may be, terminated. Within one (1) Business Day
after the Agent’s receipt of the notice from the Borrower referenced in the immediately
preceding sentence, the Agent shall provide the Lenders with notice of such reduction or
termination. Upon the effective date of any such reduction or termination, the Borrower
shall pay to the Agent for the respective accounts of the Lenders all accrued and unpaid
interest on the amount of such reduction and the full amount of the Facility Fee then
accrued and unpaid on the amount of the reduction. No reduction or termination of the
Commitments may be reinstated.




§2.8 Increase in Total Commitment. At any time (but at least 60 days prior to
the Maturity Date), the Borrower shall have the right, upon written notice to the Agent and
satisfaction of the Increase Conditions, to cause the Total Commitment to increase by an
amount not at any time exceeding, in the aggregate from and after the Closing Date,
$95,000,000 (the “Increase”), in which event Schedule 2 will be deemed to be amended to
reflect the increased Commitment of each Lender, if any, that has agreed in writing to an
increase and to add any third party financial institution that may have become a party to,
and a “Lender” under, this Agreement in connection with the Increase (and the Agent is
hereby authorized to effect such amendment on behalf of the Lenders and the Borrower);
provided, however, that it shall be a condition precedent to the effectiveness of the
Increase that the Increase Conditions shall have been satisfied. In the event that the
Increase results in any change to the Commitment Percentage of any Lender, then on the
effective date of such Increase in the Total Commitment (i) any new Lender, and any existing
Lender whose Commitment has increased, shall pay to the Agent such amounts as are necessary
to fund its new or increased Commitment Percentage of all existing Revolving Credit Loans,
(ii) the Agent will use the proceeds thereof to pay to all Lenders whose Commitment
Percentage is decreasing such amounts as are necessary so that each such Lender’s
participation in existing Revolving Credit Loans will be equal to its adjusted Commitment
Percentage, and (iii) if the effective date of such Increase in the Total Commitment occurs
on a date other than the last day of an Interest Period applicable to any outstanding Libor
Rate Loan, the Borrower will be responsible for Libor Breakage Costs and any other amounts
payable pursuant to §4.8 on account of the payments made pursuant to clause (ii) above. No
Lender shall have any obligation to increase its Commitment in connection with the Increase.




§2.9 Extension of Revolving Credit Maturity Date. At least thirty (30) days but in no event more than ninety (90) days prior to January
15, 2014, the Borrower, by written notice to the Agent (with copies for each Lender), may
request an extension of the Maturity Date by a period of one year from the Maturity Date
then in effect (the “Extension”). The Extension shall become effective on January 15, 2014,
so long as (i) the Borrower has paid to the Agent on such date, for the ratable accounts of
the Lenders, an extension fee in an amount equal to 25 basis points on the Total Commitment
in effect on such date, and (ii) no Default or Event of Default has occurred and is
continuing on such date and all representations and warranties contained in the Loan
Documents are true and correct as of such date (except to the extent that such
representations and warranties relate expressly to an earlier date). The notice referred to
in the first sentence of this §2.9 shall constitute and shall be deemed to be a
certification by the Borrower as to the truth and accuracy of the statements contained in
clause (ii) of the preceding sentence.


 


34









 






§2.10 Swingline Loans.




(a) Availability. Subject to the terms and conditions of this Agreement and so
long as the Borrower has delivered to the Agent a loan request, including the certificate
referred to in §2.4(iii), as if all references in §2.4(iii) to Revolving Credit Loans were
to Swingline Loans, the Swingline Lender agrees to make Swingline Loans to the Borrower from
time to time from the Closing Date to, but not including, the Swingline Termination Date;
provided, that the aggregate principal amount of all outstanding Swingline Loans (after
giving effect to any amount requested) at any time, shall not exceed the lesser of (i) the
Total Commitment in effect at such time less the sum of (A) all outstanding Revolving Credit
Loans at such time (after giving effect to all amounts requested) and (B) the Maximum
Drawing Amount and, (C) without double-counting the portion, if any, of any Letter of Credit
which is drawn and included in the Revolving Credit Loans or the Maximum Drawing Amount, all
outstanding Reimbursement Obligations at such time, and (ii) the Swingline Commitment at
such time. Swingline Loans hereunder may be used in anticipation of borrowing Revolving
Credit Loans and for other short-term requirements and shall be repaid in accordance with
the terms hereof. Each Swingline Loan must be for an amount equal to at least $1,000,000
and in an integral multiple of $100,000 and shall be evidenced by the Swingline Note. The
Swingline Lender shall initiate the transfer of funds representing the Swingline Loan to the
Borrower by 4:00 p.m. (Cleveland, Ohio time) on the Business Day of the requested borrowing,
so long as the Swingline Loan has been requested by the Borrower no later than 1:00 p.m.
(Cleveland, Ohio time) on such Business Day. In no event shall the number of Swingline
Loans outstanding at any time exceed three (3). Subject to §4.9, all Swingline Loans shall
bear interest at the Base Rate plus the Applicable Base Rate Margin. The Borrower
unconditionally promises to pay interest on each Swingline Loan in arrears on each Interest
Payment Date with respect thereto.




(b) Repayment. The Borrower hereby absolutely and unconditionally promises to
repay the outstanding principal amount of each Swingline Loan and all accrued interest and
charges thereon (the “Swingline Loan Amount”) on the earliest to occur of: (i) demand, (ii)
the fifth (5th) Business Day after the date on which the Swingline Loan is advanced or (iii)
the Swingline Termination Date; provided, the
Borrower shall have the right to prepay Swingline Loans without penalty or any
prepayment charge.




(c) Refunding and Conversion of Swingline Loans to Revolving Credit Loans.


 


35









 






(ii) On the Business Day before the maturity of a Swingline Loan
(which shall be no longer than the period for repayment set forth above
in §2.10(b)), the Borrower shall notify the Agent if it intends to
request a Base Rate Loan in order to repay such Swingline Loan, or three
Business Days before the maturity of a Swingline Loan (which shall be no
longer than the period for repayment set forth above in §2.10(b)), the
Borrower shall notify the Agent if it intends to request a Libor Rate
Loan in order to repay such Swingline Loan. In any event, if any
Swingline Loan has not been repaid by 1:00 p.m. (Cleveland, Ohio time)
on the maturity date thereof, the Agent shall promptly notify the
Lenders thereof and the Borrower shall be deemed to have requested on
such date a Revolving Credit Loan comprised solely of a Base Rate Loan
in a principal amount equal to the Swingline Loan Amount in order to
repay such Swingline Loan. Such refundings of the Swingline Loan
through the funding of such Revolving Credit Loans shall be made by the
Lenders in accordance with their respective Commitment Percentages and
shall thereafter be reflected as Revolving Credit Loans of the Lenders
on the books and records of the Agent.




(iii) If a Default or an Event of Default has occurred and is
continuing, all Swingline Loans shall be refunded by the Lenders on
demand by the Swingline Lender, in which case the Borrower shall be
deemed to have requested on such date of demand a Revolving Credit Loan
comprised solely of a Base Rate Loan in a principal amount equal to the
Swingline Loan Amount for such Swingline Loans. Such refundings of the
Swingline Loans through the funding of such Revolving Credit Loans shall
be made by the Lenders in accordance with their respective Commitment
Percentages and shall thereafter be reflected as Revolving Credit Loans
of the Lenders on the books and records of the Agent.




(iv) Each Lender shall fund its respective Commitment Percentage of
Revolving Credit Loans (and the Agent may apply Cash Collateral
available with respect to the applicable Swingline Loans) as required to
so repay Swingline Loans outstanding to the Swingline Lender upon such
deemed request or demand by the Swingline Lender but in no event later
than 2:00 p.m. (Cleveland, Ohio time) on the next succeeding Business
Day after such deemed request or demand is made. No Lender’s obligation
to fund its respective Commitment Percentage of the repayment of a
Swingline Loan shall
be affected by any other Lender’s failure to fund its Commitment
Percentage of such repayment, nor shall any Lender’s Commitment
Percentage be increased as a result of any such failure of any other
Lender to fund its Commitment Percentage. To the extent any Lender does
not fund its respective Commitment Percentage of any Revolving Credit
Loan to the Borrower pursuant to this



 


36









 







§2.10(c)(iii) or purchase its
undivided participating interest in any Swingline Loan in accordance
with §2.10(c)(v), such Lender shall be deemed a Defaulting Lender and
the Borrower shall repay such amounts to the Swingline Lender in
accordance with the provisions of §3.3 as if such Loan were a Revolving
Credit Loan for which a Bank did not remit its share to the Agent. If
any portion of any such amount paid to the Swingline Lender shall be
recovered by or on behalf of the Borrower from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be
ratably shared among all the Lenders.




(v) If at any time the Borrower receives notice from the Swingline
Lender that the aggregate principal amount of all Revolving Credit Loans
outstanding, plus the aggregate principal amount of all Swingline Loans
outstanding (including the Swingline Loan for which demand for payment
is then made by the Swingline Lender pursuant to this subsection), plus
the Maximum Drawing Amount and, plus, without double-counting the
portion, if any, of any Letter of Credit which is drawn and included in
the Revolving Credit Loans or the Maximum Drawing Amount, all
outstanding Reimbursement Obligations at such time equals or exceeds the
lesser of the Total Commitment at such time or Availability at such
time, the Borrower shall repay the amount of such excess upon demand by
the Swingline Lender, which payment shall be applied first to the
Swingline Loans and then to the Revolving Credit Loans.




(vi) Each Lender acknowledges and agrees that its obligation to
refund Swingline Loans with Revolving Credit Loans in accordance with
the terms of this §2.10 is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, in any event,
non-satisfaction of any conditions set forth in this Agreement
pertaining to advances of Revolving Credit Loans hereunder, except to
the limited extent expressly referred to in the first sentence of
§2.10(a). Further, each Lender agrees and acknowledges that if, prior
to the refunding of any outstanding Swingline Loans pursuant to this
§2.10, one of the events described in §§14.1(g) or (h) shall have
occurred or any of the conditions set forth in §13.2 have not been met,
each Lender will, on the date the applicable Revolving Credit Loan would
have been made pursuant to §2.10(c)(i) or (ii), purchase an undivided
participating interest in the Swingline Loan to be refunded in an amount
equal to its Commitment Percentage of such Swingline Loan Amount. Each
Lender will immediately transfer to
the Swingline Lender, in immediately available funds, the amount of
its participation. Whenever, at any time after the Swingline Lender has
received from any Lender such Lender’s participating interest in a
Swingline Loan, the Swingline Lender receives any payment on account
thereof, the Swingline Lender will distribute to such Lender its
participating interest in such amount (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which
such Lender’s participating interest was outstanding and funded).


 


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(vii) Each Lender’s Commitment Percentage applicable to any
Swingline Loan shall be identical to its Commitment Percentage
applicable to Revolving Credit Loans.




§3. REPAYMENT OF THE LOANS.




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




§3.2 Optional Repayments of Revolving Credit Loans. The Borrower shall have
the right, at its election, to prepay the outstanding amount of the Revolving Credit Loans,
in whole or in part, at any time without penalty or premium; provided that the outstanding
amount of any Libor Rate Loans may not be prepaid on a date other than the last day of an
Interest Period unless the Borrower pays the Libor Breakage Costs for each Libor Rate Loan
so prepaid at the time of such prepayment. The Borrower shall give the Agent, no later than
10:00 a.m., Cleveland, Ohio time, at least two (2) Business Days’ prior written notice of
any prepayment pursuant to this §3.2 of any Base Rate Loans, and at least four (4) Business
Days’ notice of any proposed prepayment pursuant to this §3.2 of Libor Rate Loans,
specifying the proposed date of prepayment of Revolving Credit Loans and the principal
amount to be prepaid. Each such partial prepayment of the Loans shall be in an amount equal
to $1,000,000 or an integral multiple of $1,000,000 in excess thereof or, if less, the
outstanding balance of the Revolving Credit Loans then being repaid, shall be accompanied by
the payment of all charges, if any, outstanding on all Revolving Credit Loans so prepaid and
of all accrued interest on the principal prepaid to the date of payment, and shall be
applied, in the absence of instruction by the Borrower, first to the principal of Base Rate
Loans and then to the principal of Libor Rate Loans.




§3.3 Mandatory Repayment of Loans. If at any time the sum of the outstanding
amount of the Loans, plus the Maximum Drawing Amount, plus without double counting any
Revolving Credit Loans,
the outstanding Reimbursement Obligations, if any, exceeds the lesser of (i) the Total
Commitment at such time, or (ii) the Availability at such time, the Borrower shall
immediately pay to the Agent, for the benefit of the Lenders (including the Swingline
Lender), in an amount in cash and/or Cash Collateralize the Letter of Credit Obligations as
necessary to eliminate such excess, such amount to be applied, in the absence of instruction
by the Borrower, (x) first to the repayment of Swingline Loans and second to the repayment
of Revolving Credit Loans and (y) with respect to any such payments of Revolving Credit
Loans, first to the principal of Base Rate Loans and then to the principal of Libor Rate
Loans. Notwithstanding the foregoing, the Borrower shall not be required to Cash
Collateralize the Letter of Credit Obligations pursuant to this §3.3 unless after the
prepayment in full of the Revolving Credit Loans and Swingline Loans the aggregate amount of
all Obligations exceeds the Total Commitment then in effect.


 


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§4. CERTAIN GENERAL PROVISIONS.




§4.1 Funds for Payments.




(a) All payments of principal, interest, fees, and any other amounts due hereunder or
under any of the other Loan Documents shall be made to the Agent, for the respective
accounts of the Lenders or (as the case may be) the Agent, at the Agent’s Head Office, in
each case in Dollars and in immediately available funds. The Borrower shall make each
payment of principal of and interest on the Loans and Reimbursement Obligations which are
not converted to a Loan hereunder and of fees hereunder not later than 12:00 p.m.
(Cleveland, Ohio time) on the due date thereof.




(b) All payments by the Borrower hereunder and under any of the other Loan Documents
shall be made without setoff or counterclaim and free and clear of and without deduction for
any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory
liens, restrictions or conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or withholding. If the
Borrower is compelled by law to make any such deduction or withholding with respect to any
amount payable by it hereunder or under any of the other Loan Documents (except with respect
to taxes on the income or profits of the Agent or any Lender), the Borrower shall pay to the
Agent, for the account of the Lenders or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan Document, such
additional amount in Dollars as shall be necessary to enable the Lenders to receive the same
net amount which the Lenders would have received on such due date had no such deduction or
withholding obligation been imposed upon the Borrower. The Borrower will deliver promptly
to the Agent (with copies to the Agent for each Lender) certificates or other valid vouchers
for all taxes or other charges deducted from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document.




§4.2 Computations. All computations of interest on Libor Rate Loans and of
other fees to the extent applicable shall be based on a 360-day year and all computations of
interest on Base Rate
Loans shall be based on a 365/366 day year, in each case paid for the actual number of
days elapsed. Except as otherwise provided in the definition of the term “Interest Period”
with respect to Libor Rate Loans, whenever a payment hereunder or under any of the other
Loan Documents becomes due on a day that is not a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and interest shall accrue
during such extension. The outstanding amount of the Loans as reflected on the Note Records
or record attached to any other Note from time to time shall constitute prima facie evidence
of the principal amount thereof.


 


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§4.3 Inability to Determine Libor Rate. In the event, prior to the
commencement of any Interest Period relating to any Libor Rate Loan, the Agent shall
determine that adequate and reasonable methods do not exist for ascertaining the Libor Rate
that would otherwise determine the rate of interest to be applicable to any Libor Rate Loan
during any Interest Period, the Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower) to the Borrower and the Lenders. In
such event (a) any Loan Request with respect to Libor Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (b) each Libor Rate Loan will
automatically, on the last day of the then current Interest Period applicable thereto,
become a Base Rate Loan, and (c) the obligations of the Lenders to make Libor Rate Loans
shall be suspended, in each case unless and until the Agent determines that the
circumstances giving rise to such suspension no longer exist, whereupon the Agent shall so
notify the Borrower and the Lenders.




§4.4 Illegality. Notwithstanding any other provisions herein, if any present
or future law, regulation, treaty or directive or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain Libor Rate Loans, such
Lender shall forthwith give notice of such circumstances to the Agent and the Borrower and
thereupon (a) the Commitment of such Lender to make Libor Rate Loans or convert Base Rate
Loans to Libor Rate Loans shall forthwith be suspended and (b) such Lender’s Commitment
Percentage of Libor Rate Loans then outstanding shall be converted automatically to Base
Rate Loans on the last day of each Interest Period applicable to such Libor Rate Loans or
within such earlier period as may be required by law, all until such time as it is no longer
unlawful for such Lender to make or maintain Libor Rate Loans. The Borrower hereby agrees
promptly to pay the Agent for the account of such Lender, upon demand, any additional
amounts necessary to compensate such Lender for Libor Breakage Costs incurred by such Lender
in making any conversion required by this §4.4 prior to the last day of an Interest Period.




§4.5 Additional Costs, Etc. If any present or future applicable law
(including, without limitation, the Dodd-Frank Wall Street Reform and Consumer Protection
Act), which expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or other
regulatory body or official charged
with the administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or otherwise
issued to any Lender or the Agent by any central bank or other fiscal, monetary or other
authority (whether or not having the force of law, but if not having the force of law, then
generally applied by the Lenders or the Agent with respect to similar loans), shall:




(a) subject any Lender or the Agent to any tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature with respect to this Agreement, the other Loan
Documents, any Letters of Credit, such Lender’s Commitment or the Loans (other than taxes
based upon or measured by the income or profits of such Lender or the Agent), or




(b) change the basis of taxation (except for changes in taxes on income or profits) of
payments to any Lender of the principal of or the interest on any Loans or any other amounts
payable to the Agent or any Lender under this Agreement or the other Loan Documents, or


 


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




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




and the result of any of the foregoing is




(ii) to increase the cost to any Lender of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Lender’s Commitment or any Letter of Credit, or




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




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



then, and in each such case, the Borrower will, upon demand made by the Agent or such Lender
(such demand to be made promptly by the Agent or such Lender upon the making of any such
determination), at any time and from time to time and as often as the occasion therefor may arise,
pay to such Lender or the Agent such additional amounts as such Lender or the Agent shall determine
in good faith to be sufficient to compensate such Lender or the Agent for such additional cost,
reduction, payment or foregone interest or other sum, provided that such Lender or the Agent is
generally imposing similar charges on its other similarly situated borrowers. The Agent shall
provide the Borrower with a calculation, in reasonable detail, of such amounts in accordance with
its customary practices.




§4.6 Capital Adequacy. If any future law, governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law, but if not having
the force of law, then generally applied by the Lenders with respect to similar loans) or
the interpretation thereof by a court or governmental authority with appropriate
jurisdiction affects the amount of capital required or expected to be maintained by banks or
bank holding companies and any Lender or the Agent determines that the amount of capital
required to be maintained by it is increased by or based upon the existence of Loans made or
deemed to be made pursuant



 


41









 






hereto,
then such Lender or the Agent may  notify the Borrower of
such fact, and the Borrower shall pay to such Lender or the Agent from time to time, upon
demand made by the Agent or such Lender (such demand to be made promptly by the Agent or
such Lender upon the making of any such determination), as an additional fee payable
hereunder, such amount as such Lender or the Agent shall determine reasonably and in good
faith and certify in a notice to the Borrower to be an amount that will adequately
compensate such Lender in light of these circumstances for its increased costs of
maintaining such capital. Each Lender and the Agent shall allocate such cost increases
among its customers in good faith and on an equitable basis, and will not charge the
Borrower unless it is generally imposing a similar charge on its other similarly situated
borrowers. The Agent shall provide the Borrower with a calculation, in reasonable detail, of
such amounts in accordance with its customary practices. For the purposes of this §4.6, the
phrase “future law, governmental rule, regulation, policy, guideline or directive” shall be
deemed to include the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith,
regardless of the date adopted, issued, promulgated or implemented.




§4.7 Certificate; Limitations. A certificate setting forth any additional
amounts payable pursuant to §§4.5 or 4.6 and a brief explanation of such amounts which are
due, submitted by any Lender or the Agent to the Borrower, shall be prima facie evidence
that such amounts are due and owing. Notwithstanding anything to the contrary contained in
this Article 4, to the extent reasonably possible, each Lender shall designate an alternate
lending office in the continental United States to make the Loans in order to reduce any
liability of Borrower to such Lender under §§4.4, 4.5 or 4.6 or to avoid the unavailability
of a Libor Rate Loan, so long as such designation is not disadvantageous to such Lender.




§4.8 Indemnity. In addition to the other provisions of this Agreement
regarding such matters, the Borrower agrees to indemnify the Agent and each Lender and to
hold the Agent and each Lender harmless from and against any loss, cost or expense
(including loss of anticipated profits) that the Agent or such Lender may sustain or incur
as a consequence of (a) a default by the Borrower in the payment of any principal amount of
or any interest on any Libor Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by the Agent or such Lender to lenders of
funds obtained by it in order to maintain its Libor Rate Loans, (b) the failure by the
Borrower to make a borrowing or conversion after the Borrower has given a Completed Loan
Request for a Libor Rate Loan or a Conversion Request for a Libor Rate Loan, and (c) the
making of any payment of a Libor Rate Loan or the making of any conversion of any such Loan
to a Base Rate Loan on a day that is not the last day of the applicable Interest Period with
respect thereto, including interest or fees payable by the Agent or a Lender to lenders of
funds obtained by it in order to maintain any such Libor Rate Loans.




§4.9 Interest After Default; Late Charge.



(a) Overdue Amounts.
Notwithstanding anything to the contrary stated herein, overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue amounts payable
hereunder or under any of the other Loan Documents shall bear interest at the rate otherwise
applicable thereto plus 2%, compounded daily until such amount shall be paid in full (after
as well as before judgment). In addition, the Borrower shall pay a late charge equal to
five percent (5%) of any amount of interest charges on the Loans which is not paid within
ten (10) days of the date when due.



 


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(b) Amounts Not Overdue. Notwithstanding anything to the contrary stated
herein, upon the occurrence and during the continuance of an Event of Default, at the option
of the Majority Lenders, to the extent permitted by applicable law, the unpaid principal
balance of all Obligations not overdue shall bear interest at the rate otherwise applicable
thereto plus 2%, compounded daily, until such Event of Default is cured or waived to the
satisfaction of the Agent and the Majority Lenders.




§4.10 Right to Replace Lender. If (w) a Lender requests compensation or the
Borrower is required to pay any additional amounts pursuant to §§4.1(b), 4.5 or 4.6, (x) a
Lender’s obligations with respect to LIBOR Rate Loans are suspended pursuant to §4.4, (y) in
connection with any proposed amendment, modification, termination, waiver or consent which
requires the approval of each Lender or each Lender directly affected thereby, and with
respect to which approvals from the Majority Lenders have been obtained, a Lender that has
not given, or been deemed to have given, its approval of such matter, or (z) a Lender is a
Defaulting Lender, then, so long as there does not then exist any Default or Event of
Default, the Borrower may demand that such Lender (the “Affected Lender”) assign its
Commitment to an Eligible Assignee designated by the Borrower and approved by the Agent, the
Swingline Lender and the Fronting Bank (or designated by the Agent and
approved by the Borrower), and upon such demand the Affected Lender shall promptly
assign its Commitment to an Eligible Assignee subject to and in accordance with the
provisions of §20.1 for a purchase price equal to the aggregate principal balance of the
Loans then owing to the Affected Lender and its outstanding Letter of Credit Participations,
plus any accrued but unpaid interest thereon and accrued but unpaid fees owing to the
Affected Lender (or such lesser amount as may be agreed on by the Affected Lender and such
Eligible Assignee) and upon such assignment the Borrower shall pay the fee specified in
§20.3. Subject to the approval rights of the Agent, each of the Agent and the Affected
Lender shall reasonably cooperate in effectuating the replacement of such Affected Lender
under this §4.10.




§4.11 Cash Collateral.




4.11.1 Certain Credit Support Events. At any time that there shall exist a
Defaulting Lender, immediately upon the request of the Agent, the Fronting Bank or the
Swingline Lender, the Borrower shall deliver to the Agent Cash Collateral in an amount
sufficient to cover all Fronting Exposure (after giving effect to §4.12.1(d) and any Cash
Collateral provided by the Defaulting Lender).


 


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4.11.2 Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at the Fronting Bank. The Borrower, and to the extent provided by any Lender, such
Lender, hereby grants to (and subjects to the control of) the Agent, for the benefit of the Agent,
the Fronting Bank and the Lenders (including the Swingline Lender), and agrees to maintain, a first
priority security interest in all such cash, deposit accounts and all balances therein, and all
other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all
as security for the obligations to which such Cash Collateral may be applied pursuant to §4.11.3.
If at any time the Agent determines that Cash Collateral is subject to any right or claim of any
Person other than the Agent as herein provided, or that the total amount of such Cash Collateral is
less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or
the relevant Defaulting Lender will, promptly upon demand by the Agent, pay or provide to the Agent
additional Cash Collateral in an amount sufficient to eliminate such deficiency.




4.11.3 Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this §4.11 or §§3.3, 4.12.2, 5.1 or 5.2(b)
in respect of Letters of Credit or Swingline Loans shall be held and applied to the
satisfaction of the specific Letter of Credit Obligations, Swingline Loans, obligations to
fund participations therein (including, as to Cash Collateral provided by a Defaulting
Lender, any interest accrued on such obligation) and other obligations for which the Cash
Collateral was so provided, prior to any other application of such property as may be
provided for herein.




4.11.4 Release. Cash Collateral (or the appropriate portion thereof) provided
to reduce Fronting Exposure or other obligations shall be released promptly following (i)
the elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as
appropriate, its assignee following compliance with §20.1) or (ii) the Agent’s good faith
determination that there exists excess Cash Collateral; provided, however, (x) that Cash
Collateral furnished by or on behalf of the Borrower shall not be released during the
continuance of a Default or Event of Default (and following application as provided in
§4.11.3 may be otherwise applied in accordance with §14.4, and (y) the Person providing Cash
Collateral and the Fronting Bank or Swingline Lender, as applicable, may agree that Cash
Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.




§4.12 Defaulting Lenders.




4.12.1 Adjustments. Notwithstanding anything to the contrary contained in this Agreement,
if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a
Defaulting Lender, to the extent permitted by applicable law:



(a) Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
§28.




(b) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Agent for the account of that Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to §14 or otherwise), shall be applied at such
time or times as may be determined by the Agent as follows: first, to the payment of any
amounts owing by that Defaulting Lender to the Agent hereunder; second, to the payment on a
pro rata basis of any amounts owing by that Defaulting



 


44









 






Lender to the Fronting Bank or
Swingline Lender hereunder; third, if so determined by  the Agent or requested by the
Fronting Bank or Swingline Lender, to be held as Cash Collateral for future funding
obligations of that Defaulting Lender of any participation in any Swingline Loan or Letter
of Credit; fourth, as the Borrower may request (so long as no Default or Event of Default
exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to
fund its portion thereof as required by this Agreement, as determined by the Agent; fifth,
if so determined by the Agent and the Borrower, to be held in a non-interest bearing deposit
account and released in order to satisfy obligations of that Defaulting Lender to fund Loans
under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the
Fronting Bank or Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, the Fronting Bank or Swingline Lender against that
Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of
any amounts owing to the Borrower as a result of any judgment of a court of competent
jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that
Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that
Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the
principal amount of any Loans or Reimbursement Obligations in respect of which that Defaulting
Lender has not fully funded its appropriate share and (y) such Loans or Reimbursement Obligations
were made at a time when the conditions set forth in §13 were satisfied or waived, such payment
shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all
non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of,
or Reimbursement Obligations owed to, that Defaulting Lender. Any payments, prepayments or other
amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a
Defaulting Lender or to post Cash Collateral pursuant to this §4.12.1(b) shall be deemed paid to
and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.




(c) Certain Fees. That Defaulting Lender (x) shall not be entitled to receive any Facility
Fee pursuant to §2.3(e) for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of
Credit Fees as provided in §2.3(f).




(d) Reallocation of Commitment Percentages to Reduce Fronting Exposure. During any period
in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of
each non-Defaulting Lender to acquire, refinance or fund participations in Swingline Loans or
Letters of Credit pursuant to §§2.10 and 5.1, the “Commitment Percentage” of each non-Defaulting
Lender shall be computed without giving effect to the Commitment of that Defaulting Lender;
provided, that, (i) each such reallocation shall be given effect only if, at the date the
applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the
aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of (1) the
Commitment of that non-Defaulting Lender minus (2) the aggregate outstanding amount of the Loans of
that Lender.


 


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4.12.2 Defaulting Lender Cure. If the Borrower, the Agent, Swingline Lender
and the Fronting Bank agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Agent will so notify the parties
hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash
Collateral), that Lender will, to the extent applicable, purchase that portion of
outstanding Loans of the other Lenders or take such other actions as the Agent may determine
to be necessary to cause the Loans and funded and unfunded participations in Letters of
Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with
their Commitment Percentages (without giving effect to §4.12.1(d)), whereupon that Lender
will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower
while that Lender was a Defaulting Lender; and provided, further, that except to the extent
otherwise expressly agreed by the affected parties, no change hereunder from Defaulting
Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.




§5. LETTERS OF CREDIT.



§5.1 Letter of Credit Commitments.




5.1.1 Commitment to Issue Letters of Credit.



Subject to the terms and conditions set forth in this Agreement, at any time and from time to time
from the Closing Date through the day that is thirty (30) days prior to the Maturity Date, the
Fronting Bank shall issue such Letters of Credit as the Borrower may request upon the delivery of a
written request on the Fronting Bank’s customary form as part of a Completed Loan Request and
Availability Certificate (a “Letter of Credit Application”). Subject to the terms and conditions
set forth in this Agreement, the Fronting Bank on behalf of the Lenders and in reliance upon the
agreement of the Lenders set forth in §5.1.4 and upon the representations and warranties of the
Borrower contained herein, agrees, in its individual capacity, to issue, extend and renew for the
account of the Borrower one or more standby Letters of Credit, in such form as may be requested
from time to time by the Borrower and agreed to by the Fronting Bank; provided, however, that,
after giving effect to such Completed Loan Request, (a) the Maximum Drawing Amount plus all
Reimbursement Obligations (to the extent, if any, not yet deemed a Revolving Credit Loan pursuant
to §5.3), shall not exceed $15,000,000 at any one time and (b) the sum of (i) the Maximum Drawing
Amount and, without double counting, all Reimbursement Obligations (to the extent, if any, not yet
deemed a Revolving Credit Loan pursuant to §5.3) and (ii) the amount of all Loans outstanding shall
not exceed the lesser of (x) the Total Commitment in effect at such time and (y) the Availability
at such time. The Fronting Bank shall not issue any Letter of Credit if any Lender is at that time
a Defaulting Lender, unless the Fronting Bank has entered into arrangements, including the delivery
of Cash Collateral, satisfactory to the Fronting Bank (in its sole discretion) with the Borrower or
such Lender to eliminate the Fronting Bank’s actual or potential Fronting Exposure (after giving
effect to §4.12.1(d)) with respect to the Defaulting Lender arising from either the Letter of
Credit then proposed to be issued or that Letter of Credit and all other Letter of Credit
Obligations as to which the Fronting Bank has actual or potential Fronting Exposure, as it may
elect in its sole discretion.


 


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Each Letter of Credit Application shall be executed by an officer of Borrower. The Fronting
Bank shall be entitled to conclusively rely on such Person’s authority to request a Letter of
Credit on behalf of Borrower. The Fronting Bank shall have no duty to verify the authenticity of
any signature appearing on a Letter of Credit Request. The Borrower assumes all risks with respect
to the use of the Letters of Credit. Unless the Fronting Bank and the Majority Lenders otherwise
consent, the term of any Letter of Credit shall not exceed a period of time commencing on the
issuance of the Letter of Credit and ending on the date which is one year thereafter and shall not
expire on a date later than ten (10) days prior to the Maturity Date (but in any event the term
shall not extend beyond the Maturity Date). As of any applicable date of determination, the amount
available to be drawn under any Letter of Credit shall reduce on a dollar-for-dollar basis the
amount available to be drawn under the Total Commitment as a Loan. Each Letter of Credit
Application shall be submitted to the Fronting Bank at least ten (10) Business Days (or such
shorter period as the Fronting Bank may approve) prior to the date upon which the requested Letter
of Credit is to be issued. Each such Letter of Credit Application shall contain (i) a statement as
to the purpose for which such Letter of Credit shall be used (which purpose shall be
in accordance with the terms of this Agreement), and (ii) a certification by the chief
financial or chief accounting officer of Borrower that the Borrower is and will be in compliance
with all covenants under the Loan Documents after giving effect to the issuance of such Letter of
Credit. The Borrower shall further deliver to the Fronting Bank such additional applications and
documents as the Fronting Bank may require, in conformity with the then standard practices of its
letter of credit department, in connection with the issuance of such Letter of Credit; provided
that in the event of any conflict, the terms of this Agreement shall control. The Fronting Bank
shall, if it approves of the content of the Letter of Credit request (which approval shall not be
unreasonably withheld), and subject to the conditions set forth in this Agreement, issue the Letter
of Credit on or before ten (10) Business Days following receipt of the Letter of Credit Application
(including the Completed Loan Request and the Availability Certificate). Each Letter of Credit
shall be in form and substance reasonably satisfactory to the Fronting Bank in its reasonable
discretion. Upon issuance of a Letter of Credit, the Fronting Bank shall provide notice of the
issuance of such Letter of Credit to the Lenders and shall provide a copy of such Letter of Credit
to any Lender that requests a copy. Upon the issuance of a Letter of Credit, each Revolving Credit
Lender shall be deemed to have purchased a participation therein from Fronting Bank in an amount
equal to its respective Commitment Percentage of the amount of such Letter of Credit. No Lender’s
obligation to participate in a Letter of Credit shall be affected by any other Lender’s failure to
perform as required herein with respect to such Letter of Credit or any other Letter of Credit.
The issuance of any supplement, modification, amendment, renewal or extension to or of any Letter
of Credit shall be treated in all respects the same as the issuance of a new Letter of Credit.



5.1.2 Letter of Credit Applications. Each Letter of Credit Application shall be
completed to the satisfaction of the Agent and the Fronting Bank.



5.1.3 Terms of Letters of Credit. Each Letter of Credit issued, extended or renewed
hereunder shall, among other things, (i) provide for the payment of sight drafts for honor
thereunder when presented in accordance with the terms thereof and when accompanied by the
documents described therein, and (ii) without limitation of §5.1.1, shall have an expiry date no
later than one year after its issuance. Each Letter of Credit so issued, extended or renewed shall
be subject to the rules of the ISP.


 


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5.1.4 Obligations of Lenders with respect to Letters of Credit. Each Lender severally
agrees that it shall be absolutely liable, without regard to the occurrence of any Default or Event
of Default or any other condition precedent whatsoever, to the extent of such Lender’s Commitment
Percentage, to reimburse the Fronting Bank on demand for the amount of each draft paid by the
Fronting Bank under each Letter of Credit (such agreement for a Lender being called herein the
“Letter of Credit Participation” of such Lender) (and the Agent may apply Cash Collateral provided
for this purpose). Each such payment made by a Lender shall be treated as a purchase by such
Lender of a participation in the Fronting Bank’s interest in such Letter of Credit and each Lender
shall share, in accordance with its respective Commitment Percentage, in any interest (but not any
fee payable solely for the
account of the Fronting Bank) which accrues and is payable by the Borrower pursuant to §5.2 or
otherwise in connection with such Letter of Credit.




§5.2 Reimbursement Obligation of the Borrower. In order to induce the Fronting
Bank to issue, extend and renew each Letter of Credit and the Lenders to participate
therein, the Borrower hereby agrees to reimburse or pay to the Fronting Bank, for the
account of the Fronting Bank or (as the case may be) the Lenders, with respect to each
Letter of Credit issued, extended or renewed by the Fronting Bank hereunder,




(a) (i) promptly upon notification by the Fronting Bank or the Agent that any draft
presented under such Letter of Credit is honored by the Fronting Bank, or the Fronting Bank
otherwise makes a payment with respect thereto, (x) the amount paid by the Fronting Bank
under or with respect to such Letter of Credit, and (y) any amounts payable pursuant to §5.3
under, or with respect to, such Letter of Credit (all amounts payable by the Borrower from
time to time pursuant to the foregoing clauses (x) and (y) are collectively referred to
herein as “Reimbursement Obligations”), and (ii) if any Reimbursement Obligation has not
been converted to a Revolving Credit Loan pursuant to Section 5.3 and remains unpaid after
the date that is two (2) days after the Borrower shall have received a notification from the
Fronting Bank or the Agent pursuant to the foregoing clause (i), upon the request of the
Agent or the Fronting Bank, the Borrower shall immediately Cash Collateralize the then
outstanding amount of all Letter of Credit Obligations.




(b) upon the termination of the Total Commitment, or the acceleration of the
Reimbursement Obligations with respect to all Letters of Credit in accordance with §14, an
amount equal to the then Maximum Drawing Amount on all Letters of Credit, which amount shall
be held by the Agent in an interest-bearing account (with interest to be added to such
account) as Cash Collateral for the benefit of the Lenders and the Agent for all
Reimbursement Obligations. Upon the expiration, termination or surrender without draw of
any Letter of Credit, the Agent shall release to the Borrower the Cash Collateral amount
applicable to such Letter of Credit.



Each such payment shall be made to the Agent for the benefit of the Fronting Bank or the
Lenders, as applicable, at the Agent’s Head Office in immediately available funds. Interest on any
and all amounts not converted to a Revolving Credit Loan pursuant to §5.3 and remaining unpaid by
the Borrower under this §5.2 at any time from the date such amounts become due and payable (whether
as stated in this §5.2, by acceleration or otherwise) until payment in full (whether before or
after judgment) shall be payable to the Agent for the benefit of the Lenders on demand at the rate
specified in §4.9 for overdue principal on the Loans.


 


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§5.3 Letter of Credit Payments; Funding of a Loan. If any draft shall be
presented or other demand for payment shall be made under any Letter of Credit, the Fronting
Bank will use its reasonable efforts to notify the Borrower and the Lenders, on or before
the date the Fronting Bank intends to honor such drawing, of the date and amount of the
draft presented or demand for payment and of the
date and time when it expects to pay such draft or honor such demand for payment and,
except to the extent the amount of such draft becomes a Revolving Credit Loan as set forth
in this §5.3, Borrower shall reimburse Agent, as set forth in §5.2. Notwithstanding
anything contained in §5.2 or this §5.3 to the contrary, however, unless Borrower shall have
notified the Agent and Fronting Bank prior to 11:00 a.m. (Cleveland, Ohio time) on the
Business Day immediately prior to the date of such drawing that Borrower intends to
reimburse Fronting Bank for the amount of such drawing with funds other than the proceeds of
Revolving Credit Loans, Borrower shall be deemed to have timely given a Completed Loan
Request pursuant to §2.4 to Agent, requesting a Base Rate Loan on the date on which such
drawing is honored and in an amount equal to the amount of such drawing, which Base Rate
Loan will bear interest at the rate otherwise then applicable to Base Rate Loans hereunder,
without regard to the minimum and multiples specified in §2.4(i) for the principal amount of
Revolving Credit Loans, but subject to the amount of the unutilized portion of the Total
Commitment and the conditions set forth in §13. The Borrower may thereafter convert any
such Base Rate Loan to a Revolving Credit Loan of another Type in accordance with §2.5.
Each Lender shall, in accordance with §2.6, make available such Lender’s Commitment
Percentage of such Revolving Credit Loan to Agent, the proceeds of which shall be applied
directly by Agent to reimburse Fronting Bank for the amount of such draw. In the event that
any Lender fails to make available to Agent the amount of such Lender’s Commitment
Percentage of such Revolving Credit Loan on the date of any drawing, Agent shall be entitled
to recover such amount on demand from such Lender plus any additional amounts payable under
§2.6(b) in the event of a late funding by a Lender. Further, such Lender shall be deemed to
have assigned any and all payments made of principal and interest on its Loans, amounts due
with respect to its participations in Letters of Credit and any other amounts due to it
hereunder to the Agent to fund the amount of any drawn Letter of Credit which such Lender
was required to fund pursuant to this section until such amount has been funded (as a result
of such assignment or otherwise). If after the issuance of a Letter of Credit by the
Fronting Bank, but prior to the funding of any portion thereof by a Lender, one of the
events described in §14.1(g) or (h) shall have occurred or any of the conditions set forth
in §13.2 have not been met, each Lender will, on the date such Revolving Credit Loan would
otherwise be required to be made, purchase an undivided participation interest in the Letter
of Credit in an amount equal to its Commitment Percentage of the amount of such Letter of
Credit. Each Lender will immediately transfer to the Fronting Bank in immediately available
funds the amount of its participation and upon receipt thereof the Fronting Bank will
deliver to such Lender a Letter of Credit participation certificate dated the date of
receipt of such funds and in such amount. The Fronting Bank is irrevocably authorized by
the Borrower and each of the Lenders to honor draws on each Letter of Credit by the
beneficiary thereof in accordance with the terms of such Letter of Credit. The
responsibility of the Fronting Bank to the Borrower and the Lenders shall be only to
determine that the documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in



 


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conformity
in all material respects with  such
Letter of Credit in accordance with the Fronting Bank’s customary practices. With respect
to any payment under any Letter of Credit that is not fully refinanced by a Base Rate Loan
because the conditions set forth in §13 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the Fronting Bank a Reimbursement Obligation
in the amount that is not so refinanced, which Reimbursement
Obligation shall be due and payable on demand (together with interest) and shall bear
interest at the rate set forth in §4.9 (but shall not be subject to the late charge set
forth therein). In such event, each Bank’s payment to the Agent for the account of the
Fronting Bank pursuant to §5.1.4 shall be deemed payment in respect of its participation in
such Reimbursement Obligation and shall constitute an advance from such Bank in satisfaction
of its participation obligation pursuant to §5.1.4.




§5.4 Obligations Absolute. The obligations of the Borrower to the Lenders under
this Agreement with respect to Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be paid and performed strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever, including, without limitation, the following
circumstances: (i) any improper use which may be made of any Letter of Credit or any
improper acts or omissions of any beneficiary or transferee of any Letter of Credit in
connection therewith; (ii) the existence of any claim, set-off, defense or any right which
the Borrower may have at any time against any beneficiary or any transferee of any Letter of
Credit (or persons or entities for whom any such beneficiary or any such transferee may be
acting) or the Lenders (other than the defense of payment to the Lenders in accordance with
the terms of this Agreement) or any other person, whether in connection with any Letter of
Credit, this Agreement, any other Loan Document, or any unrelated transaction; (iii) any
statement or any other documents presented under any Letter of Credit proving to be
insufficient, forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect whatsoever; (iv) any breach of any agreement between
Borrower and any beneficiary or transferee of any Letter of Credit; (v) any irregularity in
the transaction with respect to which any Letter of Credit is issued, including any fraud by
the beneficiary or any transferee of such Letter of Credit; (vi) payment by the Fronting
Bank under any Letter of Credit against presentation of a sight draft or a certificate which
does not comply with the terms of such Letter of Credit, provided that such payment shall
not have constituted gross negligence or willful misconduct on the part of the Fronting Bank
as determined by a court of competent jurisdiction after the exhaustion of all applicable
appeal periods, and (vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, provided that such other circumstances or happenings shall
not have been the result of gross negligence or willful misconduct on the part of the
Fronting Bank as determined by a court of competent jurisdiction after the exhaustion of all
applicable appeal periods. Borrower assumes all risks of the acts, omissions, or misuse of
any Letter of Credit by the beneficiary thereof. Neither Agent, Fronting Bank nor any
Lender will be responsible for (i) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any party in connection
with the issuance of any Letter of Credit, even if such document should in fact prove to be
in any or all respects



 


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invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
form, validity, sufficiency,  accuracy, genuineness or legal effect of any instrument
transferring or assigning or purporting to transfer or assign any Letter of Credit or the
rights or benefits thereunder or proceeds thereof in whole or in part, which may prove to be
invalid or ineffective for any
reason; (iii) failure of any beneficiary of any Letter of Credit to comply fully with
the conditions required in order to demand payment under a Letter of Credit; (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document or draft required by or
from a beneficiary in order to make a disbursement under a Letter of Credit or the proceeds
thereof; (vii) for the misapplication by the beneficiary of any Letter of Credit of the
proceeds of any drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of Agent or any Lender. None of the foregoing will affect,
impair or prevent the vesting of any of the rights or powers granted to Agent, Fronting Bank
or the Lenders hereunder. In furtherance and extension and not in limitation or derogation
of any of the foregoing, any act taken or omitted to be taken by Agent, Fronting Bank or the
other Lenders in good faith will be binding on Borrower and will not put Agent, Fronting
Bank or the other Lenders under any resulting liability to Borrower.




§5.5 Reliance by Issuer. The Fronting Bank and the Agent shall be entitled to
rely, and shall be fully protected in relying upon, any Letter of Credit, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel, independent accountants and other experts selected
by the Fronting Bank or the Agent. The Agent and the Fronting Bank shall be fully justified
in failing or refusing to take any action under this §5 (other than the issuance of a Letter
of Credit pursuant to a Letter of Credit Application and otherwise in accordance with the
terms of this Agreement) unless it shall first have received such advice or concurrence of
the Majority Lenders (or such other number or percentage of the Lenders as may be required
by this Agreement) as it reasonably deems appropriate or it shall first be indemnified to
its reasonable satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action. The Agent
and any Fronting Bank shall in all cases be fully protected by the Lenders in acting, or in
refraining from acting, under this §5 in accordance with a request of the Majority Lenders
(or such other number or percentage of the Lenders as may be required by this Agreement),
and such request and any action taken or failure to act pursuant thereto shall be binding
upon the Lenders and all future holders of the Notes or of a Letter of Credit Participation.




§5.6 Outstanding Letters of Credit. The Letters of Credit set forth on
Schedule 5.6 were issued prior to the Closing Date pursuant to the Original Credit
Agreement and will remain outstanding as of the Closing Date. The Borrower, the Lenders and
the Fronting Bank hereby agree that each Letter of Credit listed on Schedule 5.6,
for all purposes under this Agreement, shall be deemed to be a Letter of Credit governed by
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§6. RECOURSE OBLIGATIONS. The Obligations are full recourse obligations of the Borrower,
and all of the respective assets and properties of the Borrower shall be available for the
payment in full in cash and performance of the Obligations. The obligations of the Trust
under the Guaranty are full recourse obligations of the Trust, and all of the respective
assets and properties of the Trust shall be available for the payment in full in cash and
performance thereof.




§7. REPRESENTATIONS AND WARRANTIES. The Borrower and the Trust, on their own behalf and on
behalf of their respective Subsidiaries, jointly and severally represent and warrant to the
Agent and the Lenders all of the statements contained in this §7.




§7.1 Authority, Etc.




(a) Organization: Good Standing.




(i) FPLP is a limited partnership duly organized, validly existing
and in good standing under the laws of its state of organization; FPLP
has all requisite limited partnership power to own its properties and
conduct its business as now conducted and as presently contemplated; and
FPLP is in good standing as a foreign entity and is duly authorized to
do business in the jurisdictions where the Eligible Unencumbered
Properties owned by it are located and in each other jurisdiction where
such qualification is necessary except where a failure to be so
qualified would not have a Material Adverse Effect. Each Borrower
(other than FPLP) is a limited partnership, general partnership, nominee
trust or limited liability company, as the case may be, duly organized,
validly existing and in good standing under the laws of its state of
organization; each such Borrower has all requisite limited partnership,
general partnership, trust, limited liability company or corporate, as
the case may be, power to own its respective properties and conduct its
respective business as now conducted and as presently contemplated; and
each such Borrower is in good standing as a foreign entity and is duly
authorized to do business in the jurisdictions where the Eligible
Unencumbered Properties owned by it are located and in each other
jurisdiction where such qualification is necessary except where a
failure to be so qualified in such other jurisdiction would not have a
Material Adverse Effect.




(ii) the Trust is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland; each
Subsidiary of the Trust is duly organized, validly existing and in good
standing as a corporation, nominee trust, limited liability company,
limited partnership or general partnership, as the case may be, under
the laws of the state of its organization; the Trust and each
of its Subsidiaries has all requisite corporate, trust, limited
liability company, limited partnership or general partnership, as the
case may be, power to own its respective properties and conduct its
respective business as now conducted and as presently contemplated; and
the Trust is in good standing as a foreign entity and is duly authorized
to do business in the jurisdictions where such qualification is
necessary, except where a failure to be so qualified in such other would
not have a Material Adverse Effect.


 


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(b) Capitalization. The outstanding equity of FPLP is comprised of a general partner
interest and limited partner interests, all of which have been duly issued and are outstanding and
fully paid and non-assessable and, as of the Closing Date, are owned and held of record by the
Persons set forth on Schedule 7.1(b) attached hereto. All of the issued and outstanding general
partner interests of FPLP are owned and held of record by the Trust. There are no outstanding
securities or agreements exchangeable for or convertible into or carrying any rights to acquire a
general partner interest in FPLP. There are no outstanding commitments, options, warrants, calls
or other agreements (whether written or oral) binding on FPLP or the Trust which require or could
require FPLP or the Trust to sell, grant, transfer, assign, mortgage, pledge or otherwise dispose
of any general partner interest in FPLP. Except as set forth in the Agreement of Limited
Partnership of FPLP, no general partner interests of FPLP are subject to any restrictions on
transfer or any partner agreements, voting agreements, trust deeds, irrevocable proxies; or any
other similar agreements or interests (whether written or oral). For so long as any Borrower which
is a Wholly-Owned Subsidiary of FPLP is a Borrower, FPLP owns, directly or indirectly, 100% (by
number of votes or controlling interests) of the outstanding voting interests in each such Borrower
and economic interests in each such Borrower pursuant to which FPLP would receive, directly or
indirectly, 100% of the net proceeds of a sale or other disposition or liquidation of the Eligible
Unencumbered Property owned by each such Borrower. For so long as FP Redland Tech is a Borrower,
FPLP owns, directly or indirectly, at least 90% (by number of votes or controlling interests) of
the outstanding voting interests in FP Redland Tech and economic interests in FP Redland Tech
pursuant to which FPLP would receive, directly or indirectly, at least 90% of the net proceeds of a
sale or other disposition or liquidation of the Redland Property. All of the issued and
outstanding Equity Interests of each Borrower other than FPLP are owned and held of record by the
Persons set forth on Schedule 7.1(b) attached hereto, and all of such Equity Interests of each such
Person organized as a corporation have been duly issued and are outstanding and fully paid and
non-assessable. There are no outstanding securities or agreements exchangeable for or convertible
into or carrying any rights to acquire any Equity Interests in any Borrower (other than FPLP).
There are no outstanding commitments, options, warrants, calls or other agreements (whether written
or oral) binding on any Borrower (other than FPLP) which require or could require any Borrower
(other than FPLP) to sell, grant, transfer, assign, mortgage, pledge or otherwise dispose of any
Equity Interest in such Borrower (except with respect to one or more contracts for the disposition
of an Eligible Unencumbered Property in connection with which no Default or Event of Default shall
have occurred both before and immediately after giving effect to such disposition individually and
after giving effect to all such dispositions), and, as of the Closing Date, any such commitments,
options, warrants, calls or other agreements relating to FPLP are set forth on Schedule 7.1(b).
Except as disclosed on Schedule 7.1(b) attached hereto, no Equity Interests of any Borrower (other
than FPLP) are subject to any restrictions on transfer or any partner agreements, voting
agreements, trust deeds,
irrevocable proxies; or any other similar agreements or interests (whether written or oral)
and any such restrictions or other agreements relating to FPLP as of the Closing Date are set forth
on Schedule 7.1(b). All of the Preferred Equity which exists as of the date of this Agreement, and
each of the agreements or other documents entered into and/or setting forth the terms, rights and
restrictions applicable to any such Preferred Equity, are listed and described on Schedule 7.1(b)
attached hereto. All of the agreements and other documents requested by the Agent relating to the
Preferred Equity in effect on the Closing Date have been furnished to the Agent.


 


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(c) Due Authorization. The execution, delivery and performance of this Agreement and
the other Loan Documents to which the Borrower or the Trust is or is to become a party and the
transactions contemplated hereby and thereby (i) are within the authority of the Borrower and the
Trust, (ii) have been duly authorized by all necessary proceedings on the part of the Borrower or
the Trust and any general partner thereof, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which the Borrower or the
Trust is subject or any judgment, order, writ, injunction, license or permit applicable to the
Borrower or the Trust, (iv) do not conflict with any provision of the Organizational Documents of
the Borrower or the Trust or any general partner thereof, and (v) do not contravene any provisions
of, or constitute Default or Event of Default hereunder or a failure to comply with any term,
condition or provision of, any other agreement, instrument, judgment, order, decree, permit,
license or undertaking binding upon or applicable to the Borrower or the Trust or any of the
Borrower’s or the Trust’s properties (except for any such failure to comply under any such other
agreement, instrument, judgment, order, decree, permit, license, or undertaking as would not result
in a Material Adverse Effect or in the creation of any mortgage, pledge, security interest, lien,
encumbrance or charge upon any of the properties or assets of the Borrower or the Trust.



(d) Enforceability. Each of the Loan Documents to which the Borrower or the Trust is
a party has been duly executed and delivered and constitutes the legal, valid and binding
obligations of the Borrower and the Trust, as the case may be, subject only to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally
the enforcement of creditors’ rights.




§7.2 Governmental Approvals. The execution, delivery and performance by the
Borrower and the Trust of this Agreement and the other Loan Documents to which the Borrower
or the Trust is or is to become a party and the transactions contemplated hereby and thereby
do not require (i) the approval or consent of any governmental agency or authority other
than those already obtained and delivered to the Agent, or (ii) filing with any governmental
agency or authority, other than filings which will be made with the SEC when and as required
by law or deemed appropriate by the Trust.




§7.3 Title to Properties; Leases.



The Borrower and the Trust each has good fee to all of its respective properties, assets and
rights of every name and nature purported to be owned by it, including, without limitation, that:




(a) The Borrower holds good and clear record and marketable fee simple title to the
Eligible Unencumbered Properties and all assets or properties relating thereto, subject to
no Liens other than Permitted Liens.


 


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(b) The Borrower and the Trust will, as of the Closing Date, own all of the assets as
reflected in the financial statements of the Borrower and the Trust described in §7.4, or
acquired since the date of such financial statements (except property and assets sold or
otherwise disposed of in the ordinary course of business since that date).




(c) Set forth on Schedule 7.3(c) attached hereto is a list of each of the direct or
indirect interests of the Borrower in any Partially-Owned Entity as of the date of this
Agreement and as updated in accordance with the terms of Section 8.5(e), including the type
of entity in which the interest is held, the percentage interest owned by the Borrower in
such entity, the capacity in which the Borrower holds the interest, and the Borrower’s
ownership interest therein. Such list is complete and accurate in all material respects as
of the date furnished.




§7.4 Financial Statements. The Borrower has furnished to each of the Lenders
the audited consolidated balance sheet of the Trust and its Subsidiaries as of December 31,
2010, and the related audited consolidated statements of income, changes in shareholder’s
equity and cash flows for the year then ended (the “Initial Financials”). The Borrower has
also furnished or will otherwise make available to each of the Lenders the unaudited
consolidated balance sheet of the Trust and its Subsidiaries as of March 31, 2011, and the
related unaudited consolidated statements of income, changes in shareholder’s equity and
cash flows for the three consecutive fiscal quarters then ended (the “Quarterly
Financials”). Such Initial Financials and such Quarterly Financials have been prepared in
accordance with GAAP and the Initial Financials are accompanied by an auditors’ report
prepared without qualification by the Accountants. The Initial Financials and the Quarterly
Financials fairly present the financial condition of the Trust and its Subsidiaries as at
the close of business on the date thereof and the results of operations for the fiscal year
(or fiscal quarter, as applicable) then ended. There are no contingent liabilities of the
Trust or any of its Subsidiaries as of such date known to the officers of the Trust or any
of its Subsidiaries not disclosed in the Initial Financials or the Quarterly Financials.




§7.5 No Material Changes, Etc. Since the Financial Statement Date, there has
occurred no materially adverse change in the business, operations, assets, condition
(financial or otherwise) or properties of the Trust or FPLP or, taken as a whole, the
Potomac Group. Since the Financial Statement Date and the Closing Date, there has been no
material adverse change to the Net Operating Income of the Unencumbered Pool, taken as a
whole.




§7.6 Franchises, Patents, Copyrights, Etc. The Borrower, the Trust and each of
their respective Subsidiaries possess all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights
in respect of the foregoing, adequate for the conduct of their respective businesses
substantially as now conducted without known conflict with any rights of others, except
where the failure to so possess could not reasonably be expected to have a Material Adverse
Effect. The Borrower, the Trust and each of their respective Subsidiaries possess all
material Permits relating to each of the Unencumbered Assets comprising part of the
Unencumbered Pool. FPLP is pre-approved as a landlord for the United States government by
the General Services Administration as part of the General Services Administration’s
Advanced Acquisition Program (the “AAP Qualification”).


 


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§7.7 Litigation. Except as disclosed on Schedule 7.7, there are no actions,
suits, proceedings or investigations of any kind pending or, to the Borrower’s or the
Trust’s knowledge, threatened against the Borrower, the Trust or any of their respective
Subsidiaries before any court, tribunal or administrative agency or board that could
reasonably be expected to, either individually or in the aggregate, result in a Material
Adverse Effect, or materially impair the right of the Trust or FPLP or, taken as a whole,
the Potomac Group, to carry on its businesses substantially as now conducted by it, or
result in any substantial liability not fully covered by insurance, or for which adequate
reserves are not maintained, as reflected in the applicable consolidated financial
statements or SEC Filings of the Borrower and the Trust, or which question the validity of
this Agreement or any of the other Loan Documents, or any action taken or to be taken
pursuant hereto or thereto.




§7.8 No Materially Adverse Contracts, Etc. Neither the Borrower, the Trust nor
any of their respective Subsidiaries is subject to any charter, corporate, partnership or
other legal restriction, or any judgment, decree, order, rule or regulation that has or
could reasonably expected in the future to have a Material Adverse Effect. None of the
Borrower, the Trust or any of their respective Subsidiaries is a party to any contract or
agreement that has had, or could reasonably be expected to have, a Material Adverse Effect.




§7.9 Compliance With Other Instruments, Laws, Etc. Neither the Borrower, the
Trust nor any of their respective Subsidiaries is in violation of any provision of its
partnership agreement, charter or other Organizational Document, as the case may be, or any
agreement or instrument to which it may be subject or by which it or any of its properties
may be bound or any decree, order, judgment, statute, license, rule or regulation, in any of
the foregoing cases in a manner that could reasonably be expected to result, individually or
in the aggregate, in a Material Adverse Effect.




§7.10 Tax Status. Each of the Borrower, the Trust and their respective
Subsidiaries (a) has made or filed all federal and state income and all other material tax
returns, reports and declarations required by any jurisdiction to which it is subject and
has set aside on its
books provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply and (b) has
paid all federal and state income and all other material taxes or other governmental
assessments and charges that are due and payable, except those being contested in accordance
with Section 8.9.




§7.11 No Event of Default. No Default or Event of Default has occurred and is
continuing.




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


 


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§7.13 Name; Jurisdiction of Organization; Absence of UCC Financing Statements,
Etc. The exact legal name of the Borrower and the Trust, and their respective
jurisdictions of organization, as of the Closing Date, are set forth on Schedule 7.13
attached hereto. Except for Permitted Liens, there is no effective financing statement,
security agreement, chattel mortgage, real estate mortgage, equipment lease, financing
lease, option, encumbrance or other document filed or recorded with any filing records,
registry, or other public office, that purports to cover, affect or give notice of any
present or possible future lien or encumbrance on, or security interest in, any Eligible
Unencumbered Property. Neither the Borrower nor the Trust has pledged or granted any lien
on or security interest in or otherwise encumbered or transferred any of their respective
interests in any Borrower (including in the case of the Trust, its interests in FPLP).




§7.14 Absence of Liens. The Borrower is the owner of the Eligible Unencumbered
Properties free from any Lien, except for Permitted Liens.




§7.15 Certain Transactions. Except as set forth on Schedule 7.15, none of the
officers, partners, directors, or employees of the Trust, the Borrower or any of their
Subsidiaries is presently a party to any transaction with the Borrower, the Trust or any of
their respective Subsidiaries (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any officer, partner, director or such
employee or, to the knowledge of the Borrower or the Trust, any corporation, partnership,
trust or other entity in which any officer, partner, director, or any such employee or
natural Person related to such officer, partner, director
or employee or other Person in which such officer, partner, director or employee has a
direct or indirect beneficial interest has a substantial interest or is an officer,
director, trustee or partner.




§7.16 Employee Benefit Plans; Multiemployer Plans; Guaranteed Pension Plans.
Except as disclosed in the SEC Filings or on Schedule 7.16, none of the Borrower, the Trust
nor any ERISA Affiliate (i) maintains or contributes to, or in the prior six years has
maintained or contributed to, any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan, (ii) has any accrued unfunded or underfunded liabilities with respect to any
Employee Benefit Plan (other than with respect to any employee welfare benefit plan within
the meaning of §3(l) or §3(2)(B) of ERISA or any plan that is described in §201(2) or
§201(7) of ERISA), Guaranteed Pension Plan or Multiemployer Plan or are subject to any
condition under any Multiemployer Plan that has or with the passage of time may create a
withdrawal liability, or (iii) has failed to operate each Employee Benefit Plan maintained
by the Borrower, the Trust or any of their respective ERISA Affiliates in compliance in all
material respects with the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting prohibited transactions.
With respect to any Employee Benefit Plan that is an employee welfare benefit plan within
the meaning of §3(l) or §3(2)(B) of ERISA or any plan that is described in §201(2) or
§201(7) of ERISA, none of the Borrower, the Trust nor any ERISA Affiliate has any accrued
liability in excess of $5,000,000 that was not incurred in the ordinary course or any
accrued liability in excess of $10,000,000.


 


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§7.17 Regulations U and X.No portion of any Loan is to be used, and no portion
of any Letter of Credit is to be obtained, for the purpose of purchasing or carrying any
“margin security” or “margin stock” as such terms are used in Regulations U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.




§7.18 Environmental Compliance. The Borrower has caused Phase I and other
environmental assessments or similar assessments (collectively, the “Environmental Reports”)
to be conducted as the Borrower has determined appropriate in its commercially reasonable
judgment to investigate the past and present environmental condition and usage of the Real
Estate Assets, and, to the extent requested by the Agent, true and complete copies of the
same have been delivered to the Agent. To the Borrower’s knowledge, except as otherwise
expressly specified in the Environmental Reports, the Borrower makes the following
representations and warranties:




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




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


 


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(c) (i) No portion of the Real Estate Assets has been used for the handling,
processing, storage or disposal of Hazardous Substances except in accordance with applicable
Environmental Laws; and no underground tank or other underground storage receptacle for
Hazardous Substances is located on any portion of any Real Estate Assets except in
accordance with applicable Environmental Laws, (ii) in the course of any activities
conducted by the Borrower, the Trust, their respective Subsidiaries or the operators of
their respective properties or any ground or space tenants on any Real Estate Asset, no
Hazardous Substances have been generated or are being used on such Real Estate Asset except
in accordance with applicable Environmental Laws, (iii) there has been no present or past
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping (a “Release”) or threatened Release of Hazardous Substances
on, upon, into or from the Real Estate Assets in violation of applicable Environmental Laws,
(iv) there have been no Releases in violation of applicable Environmental Laws upon, from or
into any real property in the vicinity of any of the Real Estate Assets which, through soil
or groundwater contamination, may have come to be located on such Real Estate Asset, and (v)
to the
best of Borrower’s Knowledge, any Hazardous Substances that have been generated on any
of the Real Estate Assets during ownership thereof by the Borrower, the Trust, their
respective Subsidiaries or the operations of their respective properties have been
transported off-site only in compliance with all applicable Environmental Laws; any of which
events described in clauses (i) through (v) above would have a Material Adverse Effect, or
constitutes a Disqualifying Environmental Event with respect to any of the Eligible
Unencumbered Properties.




(d) None of the Borrower, the Trust or any of the Real Estate Assets is subject to any
applicable Environmental Law requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous Substances, or the giving of notice
to any governmental agency or the recording or delivery to other Persons of an environmental
disclosure document or statement, by virtue of the transactions set forth herein and
contemplated hereby, or as a condition to the effectiveness of any other transactions
contemplated hereby.




§7.19 Subsidiaries. Schedule 7.19 sets forth, as of the Closing Date, all of
the respective Subsidiaries of FPLP, each other Borrower and the Trust, together with the
exact legal name of each of such entities (including the Trust) and, in the case of the
Trust, the Borrower and each Guarantor, the tax identification number of each of such
entities.


 


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§7.20 Disclosure. All of the representations and warranties made by or on
behalf of the Borrower, the Trust, and their respective Subsidiaries in this Agreement and
the other Loan Documents or any documents or instruments delivered by or on behalf of the
Borrower, the Trust and their respective Subsidiaries to the Agent or the Lenders pursuant
to or in connection with any of such Loan Documents are true and correct in all material
respects. No report, financial statement, certificate or other information furnished in
writing by or on behalf of any Borrower to the Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or delivered
hereunder or under any other Loan Document (in each case, as modified or supplemented by
other information so furnished) contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be reasonable at
the time.




§7.21 REIT Status. The Trust has not taken any action that would prevent it
from maintaining its qualification as a REIT for its tax years ending December 31, 2005
through December 31, 2010, or from maintaining such qualification at all times during the
term of this Agreement.




§7.22 Anti-Terrorism Regulations.




(a) General. Neither the Borrower, the Trust nor any Affiliate thereof is in
violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in any Anti-Terrorism Law.




(b) Executive Order No. 13224. Neither Borrower, the Trust nor any Affiliate
thereof is any of the following (each a “Blocked Person”):




(i) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224;




(ii) a Person owned or controlled by, or acting for or on behalf
of, any Person that is listed in the annex to, or is otherwise subject
to the provisions of, Executive Order No. 13224;




(iii) a Person or entity with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism
Law;




(iv) a Person or entity that commits, threatens or conspires to
commit or supports “terrorism” as defined in Executive Order No. 13224;




(v) a Person or entity that is named as a “specially designated
national” on the most current list published by the U.S. Treasury
Department Office of Foreign Asset Control at its official website or
any replacement website or other replacement official publication of
such list; or




(vi) a person or entity who is affiliated or associated with a
person or entity listed above.


 


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(c) Neither Borrower, the Trust nor any Affiliate thereof (i) conducts any business or
engages in making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to Executive Order No.
13224.




(d) Neither Borrower, the Trust nor any Affiliate thereof are a “Special Designated
National” or “Blocked Person” as those terms are defined in the office of Foreign Asset
Control Regulations (31 C.F.R. § 500 et. seq.).




§8. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE TRUST. The Borrower and the Trust, on
their own behalf and on behalf of their respective Subsidiaries, jointly and severally
covenant and agree that:




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




§8.2 Maintenance of Office; Jurisdiction of Organization, Etc.. Each of the
Borrower and the Trust will maintain its chief executive office in Bethesda, Maryland, or at
such other place in the United States of America as each of them shall designate by written
notice to the Agent to be delivered at least thirty (30) days prior to any change of chief
executive office, where, subject to §21, notices, presentations and demands to or upon the
Borrower and the Trust in respect of the Loan Documents may be given or made. (A) Neither
the Trust nor the Borrower will change its name, tax identification number or address and
(B) neither the Trust nor FPLP will change its jurisdiction of organization or form of
organization, in each case, without giving the Agent at least thirty (30) days prior written
notice of such change, and in the case of clause (B) only, without the prior written consent
of the Agent, which consent may not be unreasonably withheld, provided that, (i)
with respect to any change of jurisdiction of organization or form of organization of any
Borrower other than FPLP, the Borrower will provide the Agent with prompt written notice of
any such change, and (ii) nothing in this §8.2 shall limit the covenants and obligations of
the Borrower and the Trust set forth in §8.20.




§8.3 Records and Accounts. Each of the Borrower and the Trust will (a) keep,
and cause each of its Subsidiaries to keep, true and accurate records and books of account
in which full, true and correct entries will be made in accordance with GAAP and (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
contingencies, depreciation and amortization of its properties and the properties of its
Subsidiaries.


 


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§8.4 Financial Statements, Certificates and Information. The Borrower and the
Trust will deliver to the Agent:




(a) as soon as practicable, but in any event not later than ninety (90) days after the
end of each fiscal year of the Trust, the audited consolidated balance sheet of the Trust
and its Subsidiaries at the end of such year, and the related audited consolidated
statements of income, changes in shareholder’s equity and cash flows for the year then
ended, in each case, setting forth in comparative form the figures as of the end of and for
the previous fiscal year and all such statements to be in reasonable detail, prepared in
accordance with GAAP (which may be provided by inclusion in the Form 10-K of the Trust filed
with the SEC for such period and delivered to the Agent), and, in each case, accompanied by
an auditor’s report prepared without qualification by the Accountants (and the Borrower also
shall deliver the foregoing for FPLP on a consolidated basis); together with a certification
by the principal financial or accounting officer of the Borrower and the Trust that the
information contained in such financial statements fairly presents the financial position of
the Trust and its Subsidiaries on the
date thereof (which may be provided by inclusion in the Form 10-K of the Trust filed
with the SEC for such period and delivered to the Agent);




(b) as soon as practicable, but in any event not later than forty-five (45) days after
the end of each of its March 31, June 30 and September 30 fiscal quarters, copies of the
unaudited consolidated balance sheet of the Trust and its Subsidiaries, as at the end of
such quarter, and the related unaudited consolidated statements of income, changes in
shareholders’ equity and cash flows for the portion of the Trust’s fiscal year then elapsed,
all in reasonable detail and prepared in accordance with GAAP (which may be provided by
inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to
the Agent), together with a certification by the principal financial or accounting officer
of the Borrower and the Trust that the information contained in such financial statements
fairly presents the financial position of the Trust and its Subsidiaries on the date thereof
(which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for
such period and delivered to the Agent) (subject to year-end adjustments none of which shall
be materially adverse and the absence of footnotes) (and the Borrower also shall deliver the
foregoing for FPLP on a consolidated basis);




(c) as soon as practicable, but in any event not later than ninety (90) days after the
end of each of its fiscal years, a rent roll and operating statement in respect of each
Eligible Unencumbered Property, certified by the chief financial or accounting officer of
the Borrower as true and correct;




(d) as soon as practicable, but in any event not later than forty-five (45) days after
the end of each of the fiscal quarters of the Borrower, a rent roll and operating statement
in respect of each Eligible Unencumbered Property, certified by the chief financial or
accounting officer of the Borrower as true and correct;




(e) simultaneously with the delivery of the financial statements referred to in
subsections (a) and (b) above, a statement in the form of Exhibit C-2 hereto signed
by the chief financial or accounting officer of the Borrower, and setting forth in
reasonable detail computations evidencing compliance with the covenants contained in §10;


 


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(f) promptly as they become available, a copy of each report submitted to the Borrower,
the Trust or any of their respective subsidiaries by the Accountants in connection with each
annual audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants
or in connection with any interim audit thereof pertaining to any phase of the business of
the Borrower, the Trust or any such Subsidiary;




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




(h) contemporaneously with the filing or mailing thereof, copies of all material of a
financial nature filed with the SEC or sent to the stockholders of the Trust;




(i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as
practicable, but in any event not later than ninety (90) days after the end of each fiscal
year of the Trust, copies of the Form 10-K statement filed by the Trust with the SEC for
such fiscal year, and as soon as practicable, but in any event not later than fifty (50)
days after the end of each fiscal quarter of the Trust copies of the Form 10-Q statement
filed by the Trust with the SEC for such fiscal quarter, provided that, in either case, if
the SEC has granted an extension for the filing of such statements, the Trust shall deliver
such statements to the Agent within ten (10) days after the filing thereof with the SEC;




(j) in the case of the Borrower and the Trust, as soon as practicable, but in any event
not later than thirty (30) days after the end of each of their respective fiscal years, a
business plan for the next fiscal year (including pro forma projections for such period);




(k) if requested by the Agent, a certification by the chief financial or accounting
officer of the Borrower of the state and federal taxable income of the Trust and its
Subsidiaries as of the end of any applicable fiscal year;




(l) [Reserved]; and




(m) from time to time such other financial data and other information about the
Borrower, the Trust, their respective Subsidiaries, the Real Estate Assets and the
Partially-Owned Entities as the Agent or any Lender (through the Agent) may reasonably
request. Without limitation of the foregoing, at the request of the Agent, the Borrower
will deliver to the Agent information relating to (i) the determination of the existence or
absence of a Disqualifying Environmental Event or a Disqualifying Structural Event, (ii)
title to any Eligible Unencumbered Property and (iii) insurance coverage.


 


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§8.5 Notices.




(a) Defaults. The Borrower and the Trust will, promptly after obtaining
knowledge of the same, notify the Agent in writing of the occurrence of any Default or Event
of Default. If any Person shall give any notice or take any other action in respect of (x)
a claimed Default (whether or not constituting an Event of Default) under this Agreement or
(y) a claimed failure by the Borrower, the Trust or any of their respective Subsidiaries, as
applicable, to comply with any term, condition or provision of or under any note, evidence
of Indebtedness, indenture or other obligation in excess of $20,000,000, individually or in
the aggregate, in respect of Indebtedness that is Without Recourse and in excess of
$5,000,000, individually or in the aggregate, in respect of Indebtedness that is Recourse,
to which or with respect to which any of them is a party or obligor, whether as principal or
surety, and such failure to comply would permit the holder of such note or obligation or
other evidence of Indebtedness to accelerate the maturity thereof, the Borrower shall
forthwith give written notice thereof to the Agent and each of the Lenders, describing the
notice or action and the nature of the claimed failure to comply.




(b) Environmental Events. The Borrower and the Trust will promptly give notice
in writing to the Agent (i) upon Borrower’s or the Trust’s obtaining knowledge of any
material violation (as determined by the Borrower or the Trust in the exercise of its
reasonable discretion) of any Environmental Law regarding any Real Estate Asset or
Borrower’s or the Trust’s operations, (ii) upon Borrower’s or the Trust’s obtaining
knowledge of any known Release of any Hazardous Substance at, from, or into any Real Estate
Asset which it reports in writing or is reportable by it in writing to any governmental
authority and which could reasonably be expected to be a Disqualifying Environmental Event
with respect to any of the Eligible Unencumbered Properties or which could reasonably be
expected to have a Material Adverse Effect, (iii) upon Borrower’s or the Trust’s receipt of
any notice of material violation of any Environmental Laws or of any material Release of
Hazardous Substances in violation of any Environmental Laws or any matter that could
reasonably be expected to be a Disqualifying Environmental Event with respect to any of the
Eligible Unencumbered Properties, including a notice or claim of liability or potential
responsibility from any third party (including without limitation any federal, state or
local governmental officials) and including notice of any formal inquiry, proceeding,
demand, investigation or other action with regard to (A) Borrower’s or the Trust’s or any
other Person’s operation of such Eligible Unencumbered Property, (B) contamination on, from
or into such Eligible Unencumbered Property, or (C) investigation or remediation of off-site
locations at which Borrower or the Trust or any of its predecessors are alleged to have
directly or indirectly disposed of Hazardous Substances, or (iv) upon Borrower’s or the
Trust’s obtaining knowledge that any expense or loss has been incurred by such governmental
authority in connection with the assessment, containment, removal or remediation of any
Hazardous Substances with respect to which Borrower or the Trust or any Subsidiary or
Partially-Owned Entity may be liable or for which a lien may be imposed on any Real Estate
Asset.


 


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(c) Notification of Claims against Eligible Unencumbered Properties. The
Borrower will, and will cause each Subsidiary to, promptly upon becoming aware thereof,
notify the Agent in writing (with copies to the Agent for each Lender) of any setoff,
claims, withholdings or other defenses to which any of the Eligible Unencumbered Properties
are subject, which (i) could reasonably be expected to (x) have a Material Adverse Effect,
or (y) have a materially adverse effect on the value of any such Eligible Unencumbered
Property, or (ii) with respect to such Eligible Unencumbered Property, constitute a
Disqualifying Environmental Event, a Disqualifying Structural Event or a Lien subject to the
bonding or insurance requirement of §9.2(vii).




(d) Notice of Litigation and Judgments. The Borrower and the Trust will give
notice to the Agent in writing (with copies to the Agent for each Lender) within three (3)
days of becoming aware of any litigation or proceedings threatened in writing or any pending
litigation and proceedings an adverse determination in which could result in a Material
Adverse Effect, or which could have a materially adverse effect on any Eligible Unencumbered
Property or to which the Borrower, the Trust or any of their respective Subsidiaries is or
is to become a party involving a claim against the Borrower, the Trust or any of their
respective Subsidiaries that could reasonably be expected to have a Material Adverse Effect
or to have a materially adverse effect on the value or operation
of the Eligible Unencumbered Properties and stating the nature and status of such
litigation or proceedings. The Borrower and the Trust will give notice to the Agent and
each of the Lenders, in writing, in form and detail reasonably satisfactory to the Agent,
within three (3) days of any judgment not covered by insurance, final or otherwise, against
the Borrower, the Trust or any of such Subsidiaries in an amount in excess of $5,000,000.




(e) Schedule 7.3(c). Not later than the time required for delivery to the
Agent of the financial statements referred to in subsections (a) and (b) of §8.4, the
Borrower and the Trust shall provide the Agent in writing with any updates or changes to the
information set forth on Schedule 7.3(c) attached hereto, and such Schedule 7.3(c) shall be
deemed amended thereby.




§8.6 Existence of Borrower; Maintenance of Properties. The Borrower and the
Trust will do or cause to be done all things necessary to, and shall, preserve and keep in
full force and effect its respective existence in its jurisdiction of organization and will
do or cause to be done all things necessary to preserve and keep in full force all of its
respective rights and franchises and, except as could not reasonably be expected to have a
Material Adverse Effect, those of its respective Subsidiaries which may be necessary to
properly and advantageously conduct the businesses conducted by it. For so long as FP
Redland Tech continues to be a Borrower hereunder with a Real Estate Asset included in the
Unencumbered Pool, FP Redland Tech shall continue to satisfy the criteria set forth in the
definition of the Redland Conditions. The Borrower (a) will cause all necessary repairs,
renewals, replacements, betterments and improvements to be made to all Real Estate Assets
owned or controlled by it, all as in the judgment of the Borrower may be necessary so that
the business carried on in connection therewith may be properly and advantageously conducted
at all times, subject to the terms of the applicable Leases and partnership agreements or
other entity charter documents, and in any event, will keep all of the Real Estate Assets
(for so long as such Real Estate Assets are owned by the Borrower or any of its
Subsidiaries) in a condition consistent with the Real Estate Assets currently owned or
controlled by



 


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the
Borrower or its Subsidiaries, (b) will cause all of its  other properties
and those of its Subsidiaries (to the extent controlled by the Borrower) used or useful in
the conduct of its business or the business of its Subsidiaries to be maintained and kept in
good condition, repair and working order, ordinary wear and tear and casualty and
condemnation events excepted, and supplied with all necessary equipment, (c) will not permit
the Trust to directly own or lease any Real Estate Asset, and (d) will, and will cause each
of its Subsidiaries to continue to engage primarily in the businesses now conducted by it
and in related businesses, all of the foregoing to the extent necessary to comply with the
other terms and conditions set forth in this Agreement, and in the case of clauses (a) and
(b) above. Without limitation of the foregoing, the business in which the Borrower and its
Subsidiaries are engaged will be limited to the acquisition, development, ownership and
operation of income-producing office, industrial and flex properties in the Mid-Atlantic
United States and any business activities reasonably related thereto and Investments
permitted under §9.3 incidental thereto.




§8.7 Existence of the Trust; Maintenance of REIT Status of the Trust; Maintenance
of Properties. The Trust will do or cause to be done all things necessary to preserve
and keep in full force and effect the Trust’s existence as a Maryland corporation. The
Trust will at all times (i) maintain its status as a REIT and not take any action which
could lead to its disqualification as a REIT and (ii) continue to operate as a self-directed
and self-administered REIT and be listed on a nationally-recognized stock exchange. The
Trust will not engage in any business other than the business of acting as a REIT and
serving as the general partner and limited partner of the Borrower and matters directly
relating thereto, and shall (x) conduct all or substantially all of its business operations
through the Borrower or through subsidiary partnerships or other entities owned by the
Borrower, (y) own no real property or material personal property other than through its
ownership interests in the Borrower and (z) continue to hold in excess of 80% of the
partnership interests of FPLP and to be the sole general partner thereof (including
entitlement to not less than 80% of the voting and control of FPLP), and such partnership
interests shall be free of any and all options, warrants, calls or similar agreements and
all restrictions on transfer (whether written or oral) other than as set forth in Articles
VII and IX of the Agreement of Limited Partnership of FPLP. The Trust will (a) cause all of
its properties and those of its Subsidiaries used or useful in the conduct of its business
or the business of its Subsidiaries to be maintained and kept in good condition, repair and
working order, ordinary wear and tear and casualty and condemnation events excepted, and
supplied with all necessary equipment, (b) cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of the Trust may
be necessary so that the business carried on in connection therewith may be properly and
advantageously conducted at all times and (c) cause each of its Subsidiaries to continue to
engage primarily in the businesses now conducted by it and in related businesses, in each
case under clauses (a), (b) and (c) above to the extent, in the good faith judgment of the
Trust, necessary to properly and advantageously conduct the businesses being conducted by
it.


 


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§8.8 Insurance. The Borrower and the Trust will maintain with respect to their
other properties, and will cause each of its Subsidiaries to maintain, with financially
sound and reputable insurers, insurance with respect to such properties and its business
against such casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be reasonable and
prudent.




§8.9 Taxes. The Borrower will, and will cause the Trust and each of their
respective Subsidiaries to, pay or cause to be paid real estate taxes, other taxes,
assessments and other governmental charges against the Real Estate Assets before the same
become delinquent and will duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other governmental charges
imposed upon its sales and activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor, materials, or supplies that if unpaid
might by law become a lien or charge upon any of the Real Estate Assets, provided
that (i) any such tax, assessment, other governmental charge or claim need not be paid if
the validity or amount thereof shall currently be contested in good faith by appropriate
proceedings that operate to suspend the collection and enforcement thereof, and (ii) the
Borrower or the Trust shall have set aside on its books adequate reserves with respect
thereto; and provided further that the Borrower or the Trust will pay all such taxes,
assessments, other governmental charges or claims forthwith prior to the consummation of
proceedings to foreclose any lien that may have attached as security therefor. Promptly
upon request by the Agent if required for bank regulatory compliance purposes or similar
bank purposes, the Borrower will provide evidence of the payment of real estate taxes, other
taxes, assessments and other governmental charges against the Real Estate Assets in the form
of receipted tax bills or other form reasonably acceptable to the Agent, or evidence of the
existence of applicable contests as contemplated herein.




§8.10 Inspection of Properties and Books; Treatment of Certain
Information; Confidentiality.




(a) Subject to the rights of tenants to limit or prohibit such access, as denoted in
the applicable Leases, the Borrower and the Trust will permit the Agent or any of its
designated representatives upon reasonable notice (which notice may be given orally or in
writing and provided that no notice shall be required if a Default or Event of Default has
occurred and is continuing), to visit and inspect any of the properties of the Borrower, the
Trust or any of their respective Subsidiaries to examine the books of account of the
Borrower, the Trust and their respective Subsidiaries (and to make copies thereof and
extracts therefrom) and to discuss the affairs, finances and accounts of the Borrower, the
Trust and their respective Subsidiaries with, and to be advised as to the same by, its
officers, all at such reasonable times and intervals as the Agent may reasonably request.




(b) Reserved.


 


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(c) The Borrower hereby acknowledges that (a) the Agent and/or the Arranger will make
available to the Lenders and the Fronting Bank materials and/or information provided by or
on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or
the respective securities of any of the foregoing, and who may be engaged in investment and
other market-related activities with respect to such Persons’ securities. The Borrower
hereby agrees that (w) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean
that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the
Arranger, the Fronting Bank and the Lenders to treat such Borrower Materials as not
containing any material non-
public information with respect to the Borrower or its securities for purposes of
United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Side Information.” Notwithstanding the foregoing,
Borrower shall be under no obligation to mark any such materials “PUBLIC.”




(d) Each of the Agent, the Lenders and the Fronting Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, trustees, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e)
in connection with the exercise of any remedies hereunder or under any other Loan Document
or any action or proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee of or
participant in, or any prospective assignee of or participant in, any of its rights or
obligations under this Agreement or any third party that may be invited to become a party
to, and a “Lender” under, this Agreement in connection with an Increase pursuant to §2.8 of
this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap
or derivative transaction relating to the Borrower and its obligations, (g) with the consent
of the Borrower or (h) to the extent such Information (x) becomes publicly available other
than as a result of a breach of this Section or (y) becomes available to the Agent, any
Lender, the Fronting Bank or any of their respective Affiliates on a nonconfidential basis
from a source other than the Borrower. For purposes of this Section, “Information” means
all information received from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, other than any such information that is
available to the Agent, any Lender or the Fronting Bank on a nonconfidential basis prior to
disclosure by the Borrower or any Subsidiary. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same degree of care
to maintain the confidentiality of such Information as such Person would accord to its own
confidential information.


 


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Each of the Agent, the Lenders and the Fronting Bank acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a Subsidiary, as the case may
be, (b) it has developed compliance procedures regarding the use of material non-public information
and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.




§8.11 Compliance with Laws, Contracts, Licenses, and Permits.
The Borrower and the Trust will comply with, and will cause each of their respective
Subsidiaries to comply with (a) all applicable laws and regulations now or hereafter in
effect wherever its business is conducted that are material in any respect to the operation
of their respective businesses in the ordinary course and consistent with past practices,
including, without limitation, all such Environmental Laws and all such applicable federal
and state securities laws, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect, (b) the provisions of its partnership agreement
or corporate charter and other Organizational Documents, as applicable, (c) all material
agreements and instruments to which it is a party or by which it or any of its properties
may be bound (including the Real Estate Assets and the Leases), except where the failure to
so comply could not reasonably be expected to have a Material Adverse Effect, and (d) all
applicable decrees, orders, and judgments, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. If at any time while any Loan or
Note or other Obligations is outstanding or the Lenders have any obligation to make Loans or
issue Letters of Credit hereunder, any Permit shall become necessary or required in order
that the Borrower may fulfill any of its obligations hereunder, the Borrower and the Trust
and their respective Subsidiaries will immediately take or cause to be taken all reasonable
steps within the power of the Borrower or the Trust, as applicable, to obtain such Permit
and furnish the Agent with evidence thereof.




§8.12 Use of Proceeds. Subject at all times to the other provisions of this
Agreement, including without limitation §7.17, the Borrower will use the proceeds of the
Loans solely to repay in full the principal, interest and all other amounts outstanding
under the 2010 Term Loan, to finance the acquisition, development and rehabilitation of
Permitted Properties and for its working capital and general corporate purposes.




§8.13 Additional Borrower; Solvency of Borrower; Removal of Borrower; Addition of
Real Estate Asset to Unencumbered Pool.




(a) (i) If, after the Closing Date, FPLP wishes to designate as an Eligible
Unencumbered Property a Real Estate Asset that otherwise qualifies as an Eligible
Unencumbered Property but is owned by a Person other than the Borrower, FPLP shall cause
such Person (which Person must be a Wholly-Owned Subsidiary of FPLP) to become a party to
this Agreement and the other applicable Loan Documents prior to such Real Estate Asset
becoming an Eligible Unencumbered Property hereunder. The liability of each Person which is
from time to time a Borrower hereunder shall be joint and several with each other Borrower
for all Obligations for so long as such Borrower is a Borrower hereunder (provided that FPLP
shall at all times be a Borrower hereunder).


 


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(ii) At any time and from time to time, in connection with the sale or other permanent
disposition or the refinancing with secured mortgage Indebtedness, but only for so long as
no Default or Event of Default shall then exist, FPLP may notify Agent, in writing (each, a
“Release Notice”), that the Borrower would like one (1) or
more Eligible Unencumbered Properties to be removed from the Unencumbered Pool. Such
Release Notice shall be accompanied by a Certificate of Compliance in the form of
Exhibit C-3, evidencing compliance with §2.1 and §10 after giving effect to the
requested release and a certification that no Default or Event of Default exists or would
result from such removal. Upon the Agent’s receipt of such Release Notice and its
satisfaction with the Certificate of Compliance, such Eligible Unencumbered Properties
(each, a “Released Property”) shall be removed from the Unencumbered Pool and any
Wholly-Owned Subsidiary which is the owner of a Released Property (and is not the owner of
any other an Eligible Unencumbered Property) and which is then a Borrower (other than FPLP)
hereunder shall be released from its obligations hereunder (including the Obligations).
Notwithstanding the foregoing, in no event will any Eligible Unencumbered Property be
permitted to be released hereunder without the approval of the Majority Lenders if, at the
time of such release and after giving effect thereto, the Unencumbered Pool will have fewer
than six (6) Real Estate Assets or the Value of Unencumbered Properties will be less than
$100,000,000.




(iii) FPLP will not permit any Borrower (other than FPLP) that owns any Eligible
Unencumbered Property to have any Subsidiaries unless such Subsidiary’s business,
obligations and undertakings are exclusively related to the business of such Borrower.




(b) The Borrower and the Trust shall remain solvent at all times.




(c) Prior to the addition of any Real Estate Asset to the Unencumbered Pool, the
Borrower shall deliver to the Agent (i) a written request to add such Real Estate Asset to
the Unencumbered Pool, (ii) the Joinder Documents, if applicable, (iii) a current rent roll
and operating statement for such Real Estate Asset, (iv) a Certificate of Compliance in the
form of Exhibit C-3 evidencing compliance with §2.1 and §10 after giving effect to
the requested addition, and including a certification that such Real Estate Asset is not the
subject of a Disqualifying Environmental Event or a Disqualifying Structural Event, and (v)
any other documents, certificates, instruments or agreements reasonably requested by the
Agent.



Notwithstanding the preceding paragraph of this clause (c), if the Value of Unencumbered
Properties exceeds $200,000,000, the Borrower need not deliver to the Agent the items referred to
in this clause (c) prior to the inclusion of such Real Estate Asset in the Unencumbered Pool
(except to the extent a Joinder Agreement and related Joinder Documents are required to add a new
Borrower in accordance with the terms hereof), but shall deliver them when and as required under
Section 8.4.


 


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(d) In the event the Borrower wishes to add a Real Estate Asset to the Unencumbered
Pool which does not meet one or more of the Unencumbered Property Conditions or the
provisions of §8.13(c), such Real Estate Asset may be included in the Unencumbered Pool with
the approval of the Majority Lenders. Without limiting the foregoing, the Agent and the
Lenders have consented, in their sole discretion, to the addition of the Redland Property to
the Unencumbered Pool, subject to the satisfaction of the Redland Conditions. Borrower has
certified in the Compliance Certificate dated as of
even date and executed and delivered by Borrower contemporaneously herewith that the
Redland Conditions have been satisfied, and FP Redland Tech has joined as a Borrower in the
execution and delivery of this Agreement.




§8.14 Further Assurances. The Borrower and the Trust will cooperate with the
Agent and the Lenders and execute such further instruments and documents as the Lenders or
the Agent shall reasonably request to carry out to their satisfaction the transactions
contemplated by this Agreement and the other Loan Documents.




§8.15 Interest Rate Protection. In the event that the Borrower’s floating rate
Indebtedness that is not otherwise subject to interest rate protection arrangements at any
time exceeds twenty-five percent (25%) of Consolidated Gross Asset Value, the Borrower shall
obtain and maintain in effect interest rate protection arrangements (by means of hedging
techniques or vehicles such as interest rate swaps, interest rate caps, interest rate
corridors or interest rate collars (or other mechanism approved by the Agent), in each case
to be capped at a rate reasonably satisfactory to the Agent and otherwise in form and
substance reasonably satisfactory to the Agent) (an “Interest Rate Protection Arrangement”)
for a term and in an amount reasonably satisfactory to the Agent. Once obtained, the
Borrower shall maintain such arrangements in full force and effect as provided therein, and
shall not, without the approval of the Agent, modify, terminate, or transfer such
arrangements during the period in which the Borrower’s floating rate Indebtedness exceeds
twenty-five percent (25%) of Consolidated Gross Asset Value.




§8.16 Environmental Indemnification. The Borrower and the Trust each covenants
and agrees that it will indemnify and hold the Agent and each Lender, and each of their
respective Affiliates, harmless from and against any and all claims, expense, damage, loss
or liability incurred by the Agent or any Lender (including all reasonable costs of legal
representation incurred by the Agent or any Lender, but excluding, as applicable, for the
Agent or a Lender any claim, expense, damage, loss or liability as a result of the gross
negligence or willful misconduct of the Agent or such Lender or any of their respective
Affiliates) relating to (a) any Release or threatened Release of Hazardous Substances on any
Real Estate Asset; (b) any violation of any Environmental Laws with respect to conditions at
any Real Estate Asset or the operations conducted thereon; (c) the investigation or
remediation of off-site locations at which the Borrower, the Trust or any of their
respective Subsidiaries or their predecessors are alleged to have directly or indirectly
disposed of Hazardous Substances; or (d) any action, suit, proceeding or investigation
brought or threatened with respect to any Hazardous Substances relating to Real Estate
Assets (including, but not limited to, claims with respect to wrongful death, personal
injury or damage to property). It is expressly acknowledged by the Borrower that,
notwithstanding the introductory paragraph of this §8, this covenant of indemnification
shall survive the repayment of the amounts owing under the Notes and this Agreement and the
termination of this Agreement and the obligations of the Lenders hereunder and shall inure
to the benefit of
the Agent and the Lenders and their respective Affiliates, their respective successors,
and their respective assigns under the Loan Documents permitted under this Agreement.


 


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§8.17 Response Actions. The Borrower covenants and agrees that if any Release
or disposal of Hazardous Substances shall occur or shall have occurred on any Real Estate
Asset owned directly or indirectly by the Borrower or the Trust, in violation of applicable
Environmental Laws, the Borrower will cause the prompt containment and removal of such
Hazardous Substances and remediation of such wholly-owned Real Estate Asset as necessary to
comply with all Environmental Laws or to preserve the value of any applicable Eligible
Unencumbered Property.




§8.18 Environmental Assessments. If the Agent reasonably believes, after
discussion with the Borrower and review of any environmental reports provided by the
Borrower, that a Disqualifying Environmental Event has occurred with respect to any one or
more of the Eligible Unencumbered Properties, whether or not a Default or an Event of
Default shall have occurred, the Agent may, from time to time, for the purpose of assessing
and determining whether a Disqualifying Environmental Event has in fact occurred, cause the
Borrower to obtain one or more environmental assessments or audits of such Eligible
Unencumbered Property prepared by a hydrogeologist, an independent engineer or other
qualified consultant or expert approved by the Agent to evaluate or confirm (i) whether any
Hazardous Substances are present in the soil or water at such Eligible Unencumbered Property
and (ii) whether the use and operation of such Eligible Unencumbered Property complies with
all Environmental Laws. Environmental assessments may include without limitation detailed
visual inspections of such Eligible Unencumbered Property including, without limitation, any
and all storage areas, storage tanks, drains, dry wells and leaching areas, and, if and to
the extent reasonable, appropriate and required pursuant to applicable Environmental Laws,
the taking of soil samples, surface water samples and ground water samples, as well as such
other investigations or analyses as the Agent deems appropriate. All such environmental
assessments shall be at the sole cost and expense of the Borrower.




§8.19 Employee Benefit Plans.




(a) Notice. The Borrower and the Trust will notify the Agent (with copies to
the Agent for each Lender) at least thirty (30) days prior to the establishment of any
Employee Benefit Plan, or becoming obligated to contribute to or to increase its
contribution to any Multiemployer Plan or the establishment of any Guaranteed Pension Plan
or the amendment of any such Guaranteed Pension Plan in a manner so as to materially
increase the benefits or funding obligations under such Guaranteed Pension Plan by any of
them or any of their respective ERISA Affiliates other than those Employee Benefit Plans,
Multiemployer Plans or Guaranteed Pension Plans disclosed on Schedule 8.19 attached hereto
or disclosed in the SEC Filings, and neither the Borrower nor the Trust will establish any
Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan which could reasonably be expected to have a Material Adverse
Effect.


 


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(b) In General. Each Employee Benefit Plan maintained by the Borrower, the
Trust or any of their respective ERISA Affiliates will be operated in compliance with the
provisions of ERISA and, to the extent applicable, the Code, including but not limited to
the provisions thereunder respecting prohibited transactions.




(c) Terminability of Welfare Plans. With respect to each Employee Benefit Plan
maintained by the Borrower, the Trust or any of their respective ERISA Affiliates which is
an employee welfare benefit plan within the meaning of §3(l) or §3(2)(B) of ERISA, the
Borrower, the Trust, or any of their respective ERISA Affiliates, as the case may be, shall
have the right to terminate each such plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) without liability other than liability to
pay claims incurred prior to the date of termination.




(d) Unfunded or Underfunded Liabilities. None of the Borrower, the Trust nor
any ERISA Affiliate will at any time have accruing or accrued unfunded or underfunded
liabilities with respect to any Employee Benefit Plan (other than with respect to any
employee welfare benefit plan within the meaning of §3(l) or §3(2)(B) of ERISA or any plan
that is described in §201(2) or §201(7) of ERISA), Guaranteed Pension Plan or Multiemployer
Plan, or permit any condition to exist under any Multiemployer Plan that would create a
withdrawal liability. With respect to any Employee Benefit Plan that is an employee welfare
benefit plan within the meaning of §3(l) or §3(2)(B) of ERISA or any plan that is described
in §201(2) or §201(7) of ERISA, none of the Borrower, the Trust nor any ERISA Affiliate has
any accrued liability in excess of $5,000,000 that was not incurred in the ordinary course
or any accrued liability in excess of $10,000,000.




§8.20 No Amendments to Certain Documents. The Borrower and the Trust will not
at any time cause or permit its certificate of limited partnership, agreement of limited
partnership (including without limitation the Agreement of Limited Partnership of FPLP),
articles of incorporation, by-laws, operating agreement or other Organizational Documents,
as the case may be, to be modified, amended or supplemented in any respect whatever, without
(in each case) the express prior written consent or approval of the Agent, if such changes
could reasonably be expected to affect the Trust’s REIT status or otherwise adversely affect
the rights of the Agent and the Lenders hereunder or under any other Loan Document. Without
limiting the foregoing, in no event shall the Borrower or the Trust cause or permit the
Organizational Documents of FP Redland Tech, including, without limitation, the FP Redland
Tech Partnership Agreement, to be modified, amended or supplemented in any respect
whatsoever to the extent the same is prohibited by clause (iv) of the definition of the
Redland Conditions without the express prior written consent of the Agent.


 


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§8.21 Additional Guaranties in connection with Guaranties of Other Unsecured
Debt.




(a) The Borrower and/or the Trust shall cause each Subsidiary which at any time and
from time to time becomes, directly or indirectly, an obligor, borrower or guarantor in
respect of any Indebtedness that is not secured by a Lien evidenced by a mortgage, deed of
trust, assignment of partnership interests or other security interest or otherwise (other
than Indebtedness to Agent or Lenders pursuant to this Agreement) to enter into a Subsidiary
Guaranty substantially in the form attached hereto as Exhibit F or a joinder
agreement in respect of an existing Subsidiary Guaranty, as appropriate, on or before the
date such Subsidiary becomes an obligor, borrower or guarantor in respect of such
Indebtedness, as the case may be, and concurrently therewith (or at such later date as the
Agent may approve, in its sole discretion), the Borrower and/or the Trust shall cause the
applicable Subsidiary to deliver (x) an executed original counterpart of such Subsidiary
Guaranty or joinder agreement, as applicable, (y) the items identified in §§12.2, 12.3,
12.4, 12.5 (except that, unless otherwise requested by the Agent, such opinion may be an
opinion of in-house counsel) and 12.9 of this Agreement with respect to such Subsidiary, and
(z) any other items, documents, certificates, instruments or agreements reasonably requested
by the Agent, in each case in form and substance satisfactory to the Agent.




(b) At any time and from time to time, but only for so long as no Default or Event of
Default shall then exist, the Borrower may provide the Agent with a written notice (each, a
“Subsidiary Guarantor Release Notice”), that the Borrower would like a Subsidiary Guarantor
to be released from the Subsidiary Guaranty to which it is a party, and such Subsidiary
Guarantor shall be released from such Subsidiary Guaranty provided that (i)
prior to or simultaneously with such release, such Subsidiary Guarantor has been released as
an obligor, borrower and guarantor in respect of any and all Indebtedness that is not
secured by a Lien evidenced by a mortgage, deed of trust, assignment of partnership
interests or other security interest or otherwise (other than Indebtedness to Agent or
Lenders pursuant to this Agreement), (ii) the Subsidiary Guarantor Release Notice is
accompanied by a certificate as of a recent date, in form and substance reasonably
satisfactory to the Agent, executed by a duly authorized officer of the Trust, in its
capacity as general partner of FPLP, certifying as to (A) the satisfaction of the conditions
in the immediately preceding clause (i) and including such other information in reasonable
detail as the Agent may reasonably require to evidence such satisfaction and (B) no Default
or Event of Default either before or after giving effect to the requested release, and (iii)
the Agent has approved such release and the Borrower has provided to the Agent such other
items, documents or certificates reasonably requested by the Agent, in each case in form and
substance reasonably satisfactory to the Agent.




§9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE TRUST. The Borrower and the
Trust, on their own behalf and on behalf of their respective Subsidiaries, jointly and
severally covenant and agree that neither the Borrower nor the Trust will:




§9.1 Restrictions on Indebtedness. Create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other than:




(a) Indebtedness arising under any of the Loan Documents;


 


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(b) current liabilities of the Borrower and its Subsidiaries incurred in the ordinary
course of business other than through (i) the borrowing of money, or (ii) the obtaining of
credit except for credit on an open account basis customarily extended and in fact extended
in connection with normal purchases of goods and services;




(c) Intentionally omitted;




(d) Intentionally omitted;




(e) endorsements for collection, deposit or negotiation incurred in the ordinary course
of business;




(f) Secured Indebtedness of the Borrower and its Subsidiaries provided that: (i) such
Indebtedness is Without Recourse to the Borrower or the Trust and is Without Recourse to any
of the respective assets of any of the Borrower or the Trust other than to the specific Real
Estate Asset or Assets acquired, refinanced or rehabilitated with the proceeds of such
Indebtedness, except that, notwithstanding the foregoing, a portion of such Indebtedness at
any time outstanding not in excess of fifteen percent (15%) of Consolidated Gross Asset
Value may be Recourse Indebtedness of the Borrower and its Subsidiaries so long as such
Indebtedness is not secured by any Eligible Unencumbered Property or a pledge of the equity
of any Subsidiary that owns an Eligible Unencumbered Property (it being acknowledged, for
the avoidance of doubt, that the outstanding Indebtedness under the 2007 Term Loan and the
2008 Term Loan shall count against the fifteen percent (15%) basket referred to in clause
(i) above), (ii) at the time any such Indebtedness is incurred and after giving effect
thereto, there exists no Default or Event of Default hereunder and (iii) such Indebtedness,
in the aggregate, does not exceed forty percent (40%) of Consolidated Gross Asset Value;




(g) contingent liabilities of the Borrower and its Subsidiaries disclosed in the
financial statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other
contingent liabilities of the Borrower having a combined aggregate potential liability of
not more than $1,000,000 at any time;




(h) Indebtedness of the Borrower and its Subsidiaries for the purchase price of capital
assets (other than Real Estate Assets but including Indebtedness in respect of Capitalized
Leases) incurred in the ordinary course of business, provided that the aggregate principal
amount of Indebtedness permitted by this clause (h) shall not exceed $500,000 at any time
outstanding;




(i) unsecured Indebtedness of the Borrower and its Subsidiaries (including subsidiary
guarantees by any Subsidiary of FPLP) and unsecured guarantees
by the Trust with respect to such unsecured Indebtedness, provided that (i)
such Indebtedness shall at all times remain unsecured in all respects (including, for the
avoidance of doubt, that the Equity Interests of FPLP or any other Borrower shall not be
pledged as security for any such Indebtedness), (ii) both before and immediately after
giving effect to the incurrence of any such unsecured Indebtedness, no Default or Event of
Default has occurred or is continuing, (iii) prior to incurring any such unsecured
Indebtedness, the Borrower shall be in compliance with each of the financial covenants set
forth in §10 of the Credit Agreement on a pro forma basis immediately after
giving effect to such unsecured Indebtedness, and (iv) such unsecured Indebtedness shall not
be in the nature of a revolving credit facility; and


 


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(j) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of directly
mitigating risks associated with liabilities, commitments, investments, assets, or property
held or reasonably anticipated by such Person, or changes in the value of securities issued
by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such
Swap Contract does not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party.



For the avoidance of doubt, the 2007 Term Loan and the 2008 Term Loan are also permitted
Indebtedness under this §9.1.



It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness
of any Partially Owned Entity which is Without Recourse to the Borrower or the Trust, or any of
their respective assets.



The terms and provisions of this §9.1 are in addition to, and not in limitation of, the
covenants set forth in §10.




§9.2 Restrictions on Liens, Etc. (a) Create or incur or suffer to be created
or incurred or to exist any lien, mortgage, pledge, attachment, security interest or other
rights of third parties of any kind upon any of the Eligible Unencumbered Properties or upon
the Equity Interests of FPLP or any other Borrower, whether now owned or hereafter acquired,
or upon the income or profits therefrom or the Distributions attributable thereto; (b)
acquire, or agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or arrangement in
connection with the operation of the Eligible Unencumbered Properties; (c) suffer to exist
with respect to the Eligible Unencumbered Properties, any taxes, assessments and other
governmental charges, and claims for labor, materials and supplies that are not more than 30
days past due, for which payment thereof is not being contested or for which payment
notwithstanding a contest is required to be made in accordance with the provisions of §8.9
and has not been timely made; or (d) sell, assign, pledge or otherwise transfer for security
any accounts, contract rights, general intangibles, chattel paper or instruments, with or
without recourse, relating to the Eligible Unencumbered Properties (the foregoing
types of liens and encumbrances described in clauses (a) through (d) being sometimes
referred to herein collectively as “Liens”), provided that the Borrower may create or incur
or suffer to be created or incurred or to exist:




(i) Liens securing taxes, assessments or other governmental charges
or levies or claims for labor, materials and supplies which are not yet
due and payable or which are not yet required to be paid under §8.9;


 


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(ii) Liens arising out of deposits or pledges made in connection
with, or to secure payment of, worker’s compensation, unemployment
insurance, old age pensions or other social security obligations; and
deposits with utility companies and other similar deposits made in the
ordinary course of business;




(iii) Liens (other than affecting the Eligible Unencumbered
Properties) in respect of judgments or awards not constituting an Event
of Default under §14.1(i);




(iv) Encumbrances on properties consisting of easements, rights of
way, covenants, zoning and other land-use restrictions, building
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto; landlord’s or lessor’s Liens under
Leases to which the Borrower is a party or bound; purchase options
granted at a price not less than the market value of such property; and
other minor Liens or encumbrances on properties, none of which
interferes materially and adversely with the use of the property
affected in the ordinary conduct of the business of the Borrower, and
which matters (x) do not individually or in the aggregate have a
Material Adverse Effect and (y) do not make title to such property
unmarketable by the conveyancing standards in effect where such property
is located;




(v) (A) any Leases entered into in the ordinary course of business,
and (B) bankers’ Liens, rights of setoff and other similar Liens
existing solely with respect to Cash and Cash Equivalents on deposit in
one or more of accounts maintained by the Borrower, in each case in the
ordinary course of business in favor of the bank or banks with which
such accounts are maintained, securing solely the customary amounts
owing to such bank with respect to cash management and operating account
arrangements; provided, that in no case shall any such Liens
secure (either directly or indirectly) the repayment of any
Indebtedness;




(vi) as to Real Estate Assets which are acquired after the date of
this Agreement, Liens and other encumbrances or rights of others which
exist on the date of acquisition and which do not otherwise constitute a
breach of this Agreement; provided that nothing
in this clause (vi) shall be deemed or construed to permit an
Eligible Unencumbered Property to be subject to a Lien to secure
Indebtedness;


 


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(vii) Liens affecting the Eligible Unencumbered Properties in
respect of judgments or awards that are under appeal or have been in
force for less than the applicable period for taking an appeal, so long
as execution is not levied thereunder or in respect of which, at the
time, a good faith appeal or proceeding for review is being diligently
prosecuted, and in respect of which a stay of execution shall have been
obtained pending such appeal or review; provided that the Borrower shall
have obtained a bond or insurance or made other arrangements with
respect thereto, in each case reasonably satisfactory to the Agent;




(viii) Liens securing Indebtedness for the purchase price of
capital assets (other than Real Estate Assets but including Indebtedness
in respect of Capitalized Leases for equipment and other equipment
leases) to the extent not otherwise prohibited by §9.1; and




(ix) other Liens (other than affecting the Eligible Unencumbered
Properties) in connection with any Indebtedness permitted under §9.1
(other than the unsecured Indebtedness permitted under clause (i) of
§9.1).



Nothing contained in this §9.2 shall (i) restrict or limit the Borrower or any of their
respective Subsidiaries from creating a Lien on any Real Estate Asset which is not an Eligible
Unencumbered Property and otherwise in compliance with the other terms of this Agreement or (ii)
limit the ability of the Borrower to enter into a contract for the sale of an Eligible Unencumbered
Property provided that no Default or Event of Default shall have occurred both before and
immediately after giving effect to such sale, including, without limitation, with respect to each
of the financial covenants set forth in §10 of the Credit Agreement on a pro forma
basis both before and immediately after giving effect to such sale.



The Trust shall not create or incur or suffer to be created or incurred any Lien on any of its
directly-owned properties or assets, including, in any event, its general partner interests and
limited partner interests in the Borrower.




§9.3 Restrictions on Investments. Make or permit to exist or to remain
outstanding any Investment except, with respect to the Borrower and its Subsidiaries only,
Investments in:




(a) marketable direct or guaranteed obligations of the United States of America that
mature within one (1) year from the date of purchase (including investments in securities
guaranteed by the United States of America such as securities in so called “overseas private
investment corporations”);




(b) demand deposits, certificates of deposit, bankers acceptances and time deposits of
United States banks having total assets in excess of $1,000,000,000;




(c) (i) 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, and not less than “A 1” if rated by S&P and (ii) investments,
classified in accordance with GAAP as current assets of the Borrower or any of its
Subsidiaries, in money market investment programs registered under the Investment Company
Act of 1940, which are administered by financial institutions that have a rating of not less
than “P 1” if rated by Moody’s, and not less than “A 1” if rated by S&P, and the portfolios
of which are limited solely to Investments of the character, quality and maturity described
in clauses (a) and (b) above.


 


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(d) Investments existing on the Closing Date and listed in the financial statements
referred to in §7.4;




(e) other Investments hereafter made in connection with the acquisition and development
of Permitted Properties by the Borrower or any Wholly-Owned Subsidiary of the Borrower,
provided that the aggregate amounts actually invested by Borrower (or if not invested
directly by Borrower, actually invested by an Affiliate of the Borrower for which the
Borrower has any funding obligation) and such Wholly-Owned Subsidiary at any time in Real
Estate Assets under Development (including all development costs) will not exceed twenty
percent (20%) of the Consolidated Gross Asset Value at the time of any such Investment; and
Investments in raw land intended to be developed by the Borrower or any Wholly-Owned
Subsidiary of the Borrower for use as a Permitted Property, provided that the aggregate
amounts actually invested by Borrower (or if not invested directly by Borrower, actually
invested by an Affiliate of the Borrower for which the Borrower has any funding obligation)
and such Wholly-Owned Subsidiary at any time in raw land will not exceed five percent (5%)
of the Consolidated Gross Asset Value at the time of any such Investment;




(f) any Investments now or hereafter made in (i) any Wholly-Owned Subsidiary and (ii)
any Subsidiary (other than a Wholly-Owned Subsidiary) or Partially-Owned Entity so long as,
in the case of clause (ii), such Investment is made in connection with Permitted Properties
and provided that the aggregate amounts actually invested by Borrower (or if not
invested directly by Borrower, actually invested by an Affiliate of the Borrower for which
the Borrower has any funding obligation) at any time in Partially-Owned Entities will not
exceed ten percent (10%) of the Consolidated Gross Asset Value at the time of any such
Investment; and




(g) Investments in respect of (1) equipment, inventory and other tangible personal
property acquired in the ordinary course of business, (2) current trade and customer
accounts receivable for services rendered in the ordinary course of business and payable in
accordance with customary trade terms, (3) advances in the ordinary course of business to
employees for travel expenses, drawing accounts and similar expenditures, (4) prepaid
expenses made in the ordinary course of business; and




(h) Investments by the Borrower in Structured Finance Investments, provided that the
aggregate investments in such Structured Finance Investments shall not exceed ten percent
(10%) of the Consolidated Gross Asset Value at the time of any such Investment, and further
provided that with respect to any such Investment in mezzanine loans or preferred equity,
the documents governing the terms of such Investments shall be delivered to the Agent
promptly upon the Agent’s request therefor.



In no event shall the aggregate of Investments made pursuant to subclauses (e), (f) and (h)
above exceed thirty percent (30%) of Consolidated Gross Asset Value at any time.


 


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Notwithstanding the foregoing, the Trust shall be permitted to make and maintain Investments
in the Borrower and the Trust shall contribute to the Borrower, promptly upon, and in any event
within 3 Business Days of, the Trust’s receipt thereof, 100% of the aggregate proceeds received by
the Trust in connection with any offering of stock or debt in the Trust (net of fees and expenses
customarily incurred in such offerings).




§9.4 Merger, Consolidation and Disposition of Assets; Secured Debt Incurrence.




(a) become a party to any merger, consolidation or spin-off without the prior written
approval of the Majority Lenders, except that so long as no Default or Event of Default has
occurred and is continuing, or would occur after giving effect thereto, (A) the merger or
consolidation of one or more Persons with and into the Borrower shall be permitted in
connection with the acquisition of Real Estate Assets if the Borrower is the surviving
entity; provided that prior to any such merger or consolidation (other than (x) the
merger or consolidation of one or more Wholly-Owned Subsidiaries with and into the Borrower
or (y) the merger or consolidation of two or more Wholly-Owned Subsidiaries of the
Borrower), the Borrower shall provide to the Agent a statement in the form of Exhibit
C-3 hereto signed by the chief financial officer or chief accounting officer of the
Borrower and setting forth in reasonable detail computations evidencing compliance with the
covenants contained in §10 hereof and certifying that no Default or Event of Default has
occurred and is continuing, or would occur and be continuing after giving effect to such
merger or consolidation and all liabilities, fixed or contingent, pursuant thereto, (B) any
Borrower or Subsidiary may dispose of all or substantially all of its assets or its Equity
Interests to any other Borrower or to another Subsidiary wholly-owned by FPLP;
provided that if the transferor in such a transaction is a Borrower, then the
transferee must be a wholly-owned Borrower or the transaction must be undertaken in
connection with the addition of such transferee as a Borrower in accordance with and subject
to the terms and conditions of Section 8.13(a)(i), and (C) any Borrower or Subsidiary may
dispose of all or substantially all of its assets or its Equity Interests in accordance with
and subject to the terms and conditions of Section 8.13(a)(ii), provided that such
disposition complies with, and is permitted pursuant to, Section 9.4(b), and
provided further that the foregoing restrictions shall not apply to any merger of a
Subsidiary with another Subsidiary if neither of such Subsidiaries is a Borrower hereunder;
or




(b) sell, transfer or otherwise dispose of any Real Estate Assets or other property,
including any Equity Interest (excluding Equity Interests issued by the
Trust or FPLP) in any Person, in any one or more transactions in any four-quarter
period (collectively and individually, “Sell” or a “Sale”) having a sales price (net of (i)
any Indebtedness secured by a Lien on such Real Estate Assets or other property, if any, and
(ii) the purchase price of any Real Estate Assets or other property acquired during such
four-quarter period, minus closing costs and any Indebtedness secured by a Lien on such
acquired Real Estate Assets or other property), in an amount in excess of twenty percent
(20%) of the most recently reported Consolidated Gross Asset Value or grant a Lien to secure
Indebtedness (other than in connection with the refinancing of other Secured Indebtedness
incurred in connection with the acquisition of Real Estate Assets) in any one or more
transactions in a four-quarter period (collectively and



 


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individually,
an “Indebtedness
Lien”) in an amount in excess of twenty percent (20%) of the most recently reported
Consolidated Gross Asset Value unless, in each such event, the Majority Lenders have given
their prior written consent thereto. In addition, prior to the consummation of any Sale
having a net sales price (net of any Indebtedness secured by a Lien on the applicable Real
Estate Asset) in an amount in excess of two percent (2%) of the most recently reported
Consolidated Gross Asset Value or the granting of any Indebtedness Lien in an amount in
excess of two percent (2%) of the most recently reported Consolidated Gross Asset Value, the
Borrower shall have provided to the Agent (with copies to the Agent for each Lender) a
compliance certificate in the form of Exhibit C-3, hereto signed by the chief
financial officer or chief accounting officer of the Borrower, setting forth in reasonable
detail computations evidencing compliance with the covenants contained in §10 hereof and
certifying that no Default or Event of Default would exist or occur and be continuing after
giving effect to all such proposed Sale or Indebtedness Lien (and the use of proceeds of
such Sale or Indebtedness Lien to pay Indebtedness outstanding hereunder).




§9.5 Compliance with Environmental Laws. (a) Use any of the Real Estate Assets
or any portion thereof as a facility for the handling, processing, storage or disposal of
Hazardous Substances except for quantities of Hazardous Substances used in the ordinary
course of business and in material compliance with all applicable Environmental Laws, (b)
cause or permit to be located on any of the Real Estate Assets any underground tank or other
underground storage receptacle for Hazardous Substances except in material compliance with
Environmental Laws, (c) generate any Hazardous Substances on any of the Real Estate Assets
except in material compliance with Environmental Laws, or (d) conduct any activity at any
Real Estate Asset or use any Real Estate Asset in any manner so as to cause a Release in
violation of applicable Environmental Laws, unless, with respect to clause (d) above, any
such occurrence would result in a Material Adverse Effect.




§9.6 Distributions.




(a) The Borrower will not make or declare (i) annual Distributions in excess of 95% of
Core FFO except to the extent (after taking into account all available funds of the Trust
from all other sources) required in order to eliminate all taxable income of the Trust; and
(ii) any Distributions during any period after any monetary Event of Default has occurred;
provided, however, (a) that the Borrower may at all times
(including while an Event of Default is continuing) make Distributions to the extent
(after taking into account all available funds of the Trust from all other sources) required
in order to enable the Trust to continue to qualify as a REIT and (b) in the event that the
Borrower cures any such Event of Default in clause (ii) above and the Agent has accepted
such cure prior to accelerating the Loan, the limitation of clause (ii) above shall cease to
apply with respect to such Event of Default.




(b) The Trust will not, during any period when any monetary Event of Default has
occurred and is continuing, make any Distributions in excess of the minimum Distributions
required to be made by the Trust in order to maintain its status as a REIT.


 


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§9.7 Government Regulation. The Borrower and the Trust shall not, and shall
not permit any of their respective Subsidiaries to, (a) be or become subject at any time to
any law, regulation, or list of any government agency (including, without limitation, the
U.S. Office of Foreign Asset Control list) that prohibits or limits the Agent or any Lender
from making any advance or extension of credit to the Borrower or from otherwise conducting
business with the Borrower, or (b) fail to provide documentary and other evidence of the
Borrower’s identity as may be requested by the Agent or any Lender at any time to enable the
Agent or any Lender to verify the Borrower’s identity or to comply with any applicable law
or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31
U.S.C. Section 5318.



§10. FINANCIAL COVENANTS; COVENANTS REGARDING ELIGIBLE UNENCUMBERED PROPERTIES. The Borrower
and the Trust, on their own behalf and on behalf of their respective Subsidiaries, jointly
and severally covenant and agree that:




§10.1 Consolidated Total Leverage Ratio. At all times, (i) from the Closing
Date through the fiscal quarter ending September 30, 2011, Consolidated Total Indebtedness
shall not exceed sixty-two and one half of one percent (62.5%) of Consolidated Gross Asset
Value, and (ii) for each fiscal quarter ending on or after December 31, 2011, Consolidated
Total Indebtedness shall not exceed sixty percent (60%) of Consolidated Gross Asset Value as
of the last day of such fiscal quarter. This covenant shall be tested quarterly as of the
last day of the applicable quarter.




§10.2
Consolidated Debt Yield. At all times, as tested at the end of each
fiscal quarter, (i) from the Closing Date through the fiscal quarter ending September 30,
2011, the Consolidated Debt Yield shall not be less than ten and one half of one percent
(10.5%), and (ii) for each fiscal quarter ending on or after December 31, 2011, the
Consolidated Debt Yield shall not be less than eleven percent (11%).




§10.3 Fixed Charge Coverage Ratio. At all times, as tested at the end of each
fiscal quarter, the ratio of (i) Adjusted EBITDA for the four consecutive fiscal quarters
ending on the last day of such fiscal quarter to (ii) Consolidated Fixed Charges for the
four consecutive fiscal quarters ending on the last day of such fiscal quarter must exceed
1.50 to 1.0.




§10.4 Net Worth. At all times, as tested at the end of each fiscal quarter and
any other date of measurement, the Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries shall not be less than the sum of (i) $690,289,992 plus (ii) 80% of the
aggregate proceeds received by the Trust (net of fees and expenses customarily incurred in
transactions of such type) in connection with any offering of stock in the Trust, plus (iii)
80% of the aggregate value of operating units issued by the Borrower in connection with
asset or stock acquisitions (valued at the time of issuance by reference to the terms of the
agreement pursuant to which such units are issued), in each case after the Closing Date and
on or prior to the date such determination of Consolidated Net Worth is made.


 


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§10.5 Unencumbered Pool Leverage. At all times, as tested at the end of each
fiscal quarter and any other date of measurement, (i) from the Closing Date through the
fiscal quarter ending September 30, 2011, the Borrower shall not permit Unsecured
Consolidated Total Indebtedness as at the last day of each fiscal quarter to exceed
sixty-two and one half of one percent (62.5%) of the aggregate Value of Unencumbered
Properties on the last day of such fiscal quarter, and (ii) for each fiscal quarter ending
on or after December 31, 2011, the Borrower shall not permit Unsecured Consolidated Total
Indebtedness as at the last day of any fiscal quarter to exceed sixty percent (60%) of the
aggregate Value of Unencumbered Properties on the last day of such fiscal quarter. For
purposes of the covenant set forth in this §10.5, any New Debt incurred by the Borrower
after the date hereof shall be deemed to be Unsecured Consolidated Total Indebtedness.




§10.6 Unencumbered Pool Interest Coverage Ratio. At all times, as tested at
the end of each fiscal quarter, the ratio of (i) Adjusted Net Operating Income for the
applicable quarter, annualized; divided by (ii) the Unsecured Interest Expense for the
applicable quarter, annualized, shall not be less than 1.75 to 1.0.




§10.7 [Reserved].



§11. [Reserved].



§12. CONDITIONS TO THE FIRST ADVANCE. The obligations of any Lender to make the initial
Revolving Credit Loans and of the Fronting Bank to issue any initial Letters of Credit (and
to maintain the existing outstanding Loans and Letters of Credit) shall be subject to the
satisfaction of the following conditions precedent on or prior to the Closing Date with, in
each instance, the Agent, acting on behalf of the Lenders, having approved in its sole
discretion each matter submitted to it in compliance with such conditions:




§12.1 Loan Documents. Each of the Loan Documents shall have been duly executed
and delivered by the respective parties thereto and shall be in full force and effect.




§12.2 Certified Copies of Organization Documents. The Agent shall have
received (i) from the Borrower a copy, certified as of a recent date by a duly authorized
officer of the Trust, in its capacity as general partner of the Borrower, to be true and
complete, of the Agreement of Limited Partnership of FPLP and any other Organizational
Document or other agreement governing the rights of the partners or other equity owners of
the Borrower (or bringdowns of same with respect to a Borrower under the Original Credit
Agreement), and (ii) from the Trust a copy, certified as of a recent date by the appropriate
officer of the State of Maryland to be true and correct, of the corporate charter of the
Trust, in each case along with any other organization documents of the Borrower or the Trust
and their respective general partners, as the case may be, and each as in effect on the date
of such certification (in each case, or bringdowns of same with respect to a Borrower under
the Original Credit Agreement).


 


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§12.3 By-laws; Resolutions. All action on the part of the Borrower and the
Trust necessary for the valid execution, delivery and performance by the Borrower and the
Trust of this Agreement and the other Loan Documents to which any of them is or is to become
a party shall have been duly and effectively taken, and evidence thereof satisfactory to the
Agent shall have been provided to the Agent. The Agent shall have received from the Trust
true copies of its by-laws (or bringdowns of same with respect to a Borrower under the
Original Credit Agreement) and the resolutions adopted by its board of directors or trustees
authorizing the transactions described herein and evidencing the due authorization,
execution and delivery of the Loan Documents to which the Trust and/or the Borrower is a
party, each certified by the secretary as of a recent date to be true and complete.




§12.4 Incumbency Certificate; Authorized Signers. The Agent shall have
received from the Trust an incumbency certificate, dated as of the Closing Date, signed by a
duly authorized officer of the Trust and giving the name of each individual who shall be
authorized: (a) to sign, in the name and on behalf of the Borrower and the Trust, as the
case may be, each of the Loan Documents to which the
Borrower or the Trust is or is to become a party; (b) to make Loan and Conversion
Requests on behalf of the Borrower and (c) to give notices and to take other action on
behalf of the Borrower or the Trust, as applicable, under the Loan Documents.




§12.5 Opinion of Counsel Concerning Organization and Loan Documents. Each of
the Lenders and the Agent shall have received favorable opinions addressed to the Lenders
and the Agent in form and substance reasonably satisfactory to the Lenders and the Agent
from Hogan Lovells LLP and, if any, state specific local counsel who are reasonably
satisfactory to Agent, each as counsel to the Borrower, the Trust and their respective
Subsidiaries, with respect to applicable law.




§12.6 Guaranty. The Guaranty shall have been duly executed and delivered by
the Trust.




§12.7 Certifications from Government Officials; UCC 11 Reports. The Agent
shall have received (i) long form certifications from government officials evidencing the
legal existence, good standing and foreign qualification of the Borrower and the Trust,
along with a certified copy of the certificate of limited partnership of the Borrower, all
as of the most recent practicable date; and (ii) UCC 11 search results from the appropriate
jurisdictions for the Borrower and the Trust.




§12.8 Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Agreement, the other Loan Documents and all other
documents incident thereto shall be satisfactory in form and substance to each of the
Lenders and to the Agent’s counsel, and the Agent, each of the Lenders and such counsel
shall have received all information and such counterpart originals or certified or other
copies of such documents as the Agent may reasonably request.




§12.9 Fees. The Borrower shall have paid to the Agent, for the accounts of the
Lenders or for its own account, as applicable, all of the fees and expenses that are due and
payable as of the Closing Date in accordance with this Agreement or any separate fee letter
entered into by the Borrower and the Trust and the Agent.


 


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§12.10 Closing Certificate. The Borrower and the Guarantor shall have
delivered a Closing Certificate to the Agent, in form and substance satisfactory to the
Agent, including, without limitation, (i) a certification that as of the Closing Date, the
Borrower is not in default under any Indebtedness, (ii) that there has been no material
adverse change in the business, assets, operations, condition (financial or otherwise) or
prospects of the Borrower or the Trust since March 31, 2011, or in the facts and information
regarding the Borrower the Trust
and their respective Subsidiaries as provided to the Agent and the Lenders to date and
(iii) that no event of default or unmatured event of default has occurred under any of the
Borrower’s or the Trust’s (or their respective Subsidiaries) financial obligations in effect
on the Closing Date, both before and after giving effect to the making of the Loans
hereunder.




§12.11 Other Matters. The Borrower and the Guarantor shall have delivered to
the Agent, in form and substance satisfactory to the Agent, such other information,
documents, certificates and other items reasonably requested by the Agent.



§13. CONDITIONS TO ALL BORROWINGS. The obligations of any Lender to make any Loan, and of
the Fronting Bank to issue any Letter of Credit, whether on or after the Closing Date, shall
also be subject to the satisfaction of the following conditions precedent:




§13.1 Representations True; No Event of Default; Compliance Certificate. Each
of the representations and warranties made by or on behalf of the Borrower, the Trust or any
of their respective Subsidiaries 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 each Loan, and the issuance, extension or renewal of any Letter of
Credit, with the same effect as if made at and as of that time (except to the extent that
such representations and warranties relate expressly to an earlier date); and no Default or
Event of Default under this Agreement shall have occurred and be continuing on the date of
any Completed Loan Request or on the Drawdown Date of any Loan or Letter of Credit.




§13.2 No Legal Impediment. No change shall have occurred any law or
regulations thereunder or interpretations thereof that in the reasonable opinion of the
Agent or any Lender or the Fronting Bank would make it illegal for any Lender to make such
Loan or to participate in the issuance, extension or renewal of such Letter of Credit or, in
the reasonable opinion of the Agent, would make it illegal to issue, extend or renew such
Loan or Letter of Credit.




§13.3 Governmental Regulation. Each Lender shall be satisfied that the making
of such Loan or participation in the issuance, extension or renewal of such Letter of Credit
is in compliance with any applicable regulations of the Comptroller of the Currency or the
Board of Governors of the Federal Reserve System.




§13.4 Borrowing Documents.
In the case of any request for a Revolving Credit Loan or a Letter of Credit, the Agent
shall have received the Completed Loan Request and required certificates.




§13.5 [Reserved.]


 


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§13.6 New Unencumbered Pool Property. To the extent the Completed Loan Request
is for a funding based upon any new Real Estate Asset being part of the Unencumbered Pool,
the Unencumbered Property Conditions and the terms of Section 8.13(c) have been satisfied
with respect to such Real Estate Asset.




§13.7 Continued Compliance. To the extent deemed applicable by the Agent, the
conditions of Section 12 shall remain or be satisfied.




§14. EVENTS OF DEFAULT; ACCELERATION; ETC.




§14.1 Events of Default and Acceleration. If any of the following events
(“Events of Default”) shall occur:




(a) the Borrower shall fail to pay any principal of any Loans when the same shall
become due and payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;




(b) the Borrower shall fail to pay any interest on the Loans or any other sums due
hereunder or under any of the other Loan Documents or any fee letter (including, without
limitation, amounts due under §8.16) when the same shall become due and payable, and such
failure continues for three (3) days;




(c) the Borrower, the Trust or any of their respective Subsidiaries shall fail to
comply, or to cause the Trust to comply, as the case may be, with any of the respective
covenants contained in the following: §8.1 (except with respect to principal, interest and
other sums covered by clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive;
§8.12; §8.13; §8.15; §8.19; §8.20; §8.21; §9; and §10;




(d) the Borrower, the Trust or any of their respective Subsidiaries shall fail to
perform any other term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this §14) and such failure continues for
thirty (30) days after the earlier of the knowledge of any responsible officer of the
Borrower or notice thereof from the Agent;




(e) any representation or warranty made by or on behalf of the Borrower, the Trust or
any of their respective Subsidiaries in this Agreement or any of the other Loan Documents
shall prove to have been false in any material respect upon the date when made or deemed to
have been made or repeated;


 


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(f) the Borrower, the Trust or any of its Subsidiaries or, to the extent of Recourse to
the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other
of their respective Affiliates, shall (x) fail to pay at maturity, or within any applicable
period of grace, any Indebtedness for borrowed money or credit received or in respect of any
Capitalized Leases, which is in excess of (i) $60,000,000, either individually or in the
aggregate, if such Indebtedness is Without Recourse and (ii) $20,000,000, either
individually or in the aggregate, if such Indebtedness is Recourse, (y) with respect to any
Indebtedness that is Recourse and in excess of $20,000,000, either individually or in the
aggregate, fail to observe or perform any material term, covenant, condition or agreement
contained in any agreement, document or instrument by which it is bound evidencing, securing
or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing
borrowed money or credit received or in respect of any Capitalized Leases for such period of
time (after the giving of appropriate notice if required) as would permit the holder or
holders thereof or of any obligations issued thereunder to accelerate the maturity thereof,
or (z) with respect to any Indebtedness that is Without Recourse and in excess of
$60,000,000, either individually or in the aggregate, (1) fail to pay at maturity, or within
any applicable period of grace, any such Indebtedness or (2) fail to observe or perform any
material term, covenant, condition or agreement contained in any agreement, document or
instrument by which it is bound evidencing, securing or otherwise relating to such
Indebtedness or obligations, evidencing or securing borrowed money or credit received or in
respect of any Capitalized Leases for such period of time (after the giving of appropriate
notice if required) that results in the holder or holders thereof or of any obligations
issued thereunder accelerating the maturity thereof; provided, however, that
any such Indebtedness that is Without Recourse shall be treated as Indebtedness that is
Recourse to the extent that the same has become Recourse to the Borrower, the Trust or any
of its Subsidiaries upon the occurrence of an event constituting an exception to
non-recourse liability, such as fraud, misapplication of funds, violations of Environmental
Laws, and other similar exceptions, under any agreement, document or instrument evidencing,
securing or otherwise relating to such Indebtedness;




(g) the Borrower, the Trust or any of their respective Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or receiver of any of the
Borrower, the Trust or any of their respective Subsidiaries or of any substantial part of
the properties or assets of any of such parties or shall commence any case or other
proceeding relating to any of the Borrower, the Trust or any of their respective
Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in
effect, or shall take any action to authorize or in furtherance of any of the foregoing, or
if any such petition or application shall be filed or any such case or other proceeding
shall be commenced against any of the Borrower, the Trust or any of their respective
Subsidiaries and (i) any of the Borrower, the Trust or any of their respective Subsidiaries
shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any
such petition, application, case or other proceeding shall continue undismissed, or unstayed
and in effect, for a period of sixty (60) days; provided that the foregoing, to the
extent
applicable solely to one or more Subsidiaries of FPLP that are not Borrowers hereunder
to which no more than 5% (individually and in the aggregate) of the most recently reported
Consolidated Gross Asset Value is attributable, shall not be an Event of Default hereunder
so long as no motion to consolidate the Borrower, the Trust or any other Subsidiaries has
been made;


 


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(h) a decree or order is entered appointing any trustee, custodian, liquidator or
receiver or adjudicating any of the Borrower, the Trust or any of their respective
Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of any of the Borrower,
the Trust or any of their respective Subsidiaries in an involuntary case under federal
bankruptcy laws as now or hereafter constituted; provided that the foregoing, to the
extent applicable solely to one or more Subsidiaries of FPLP that are not Borrowers
hereunder to which no more than 5% (individually and in the aggregate) of the most recently
reported Consolidated Gross Asset Value is attributable, shall not be an Event of Default
hereunder so long as no motion to consolidate the Borrower, the Trust or any other
Subsidiaries has been made at any time prior thereto or in connection therewith;




(i) there shall remain in force, undischarged, unsatisfied and unstayed, for more than
thirty (30) days, whether or not consecutive, any uninsured final judgment against any of
the Borrower, the Trust or any of their respective Subsidiaries that, with other outstanding
uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such
parties exceeds in the aggregate $5,000,000; provided that the foregoing, to the extent
applicable solely to one or more Subsidiaries of FPLP that are not Borrowers hereunder to
which no more than 5% (individually and in the aggregate) of the most recently reported
Consolidated Gross Asset Value is attributable, it shall not be an Event of Default
hereunder so long as neither the Borrower, the Trust or any Subsidiaries not meeting the de
minimus test above are liable for such judgements;




(j) any of the Loan Documents or any material provision of any Loan Document shall be
canceled, terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement, consent or approval of the Agent, or
any action at law, suit or in equity or other legal proceeding to make unenforceable,
cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of
the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries, or any
court or any other governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or ruling to the effect
that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any
material terms thereof;




(k) any “Event of Default”, as defined or provided in any of the other Loan Documents
has occurred, or any default under any of the other Loan Documents has occurred that has not
been remedied to the satisfaction of the Agent or waived within the applicable cure period
set forth therein;




(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have
occurred and the Majority Lenders shall have determined in
their reasonable discretion that such event reasonably could be expected to result in
liability of the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries
or any ERISA Affiliate of any such entity to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $5,000,000 or such event reasonably could constitute grounds for
the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District Court to
administer such Plan; or the PBGC shall have instituted proceedings to terminate such
Guaranteed Pension Plan; or with respect to any Multiemployer Plan, the Borrower or any of
its Subsidiaries or the Trust or any of its Subsidiaries or any ERISA Affiliate of any such
entity shall have become subject to a withdrawal liability (or with the passage of time will
become subject to a withdrawal liability) in an aggregate amount exceeding $5,000,000;


 


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(m) subject to the Borrower’s ability to remove Real Estate Assets from the
Unencumbered Pool in accordance with the provisions set forth below in this §14, the failure
of any of the Real Estate Assets being included from time to time as part of the
Unencumbered Pool to comply with any of the conditions set forth in the definition of
Eligible Unencumbered Properties;




(n) there occurs any Change of Control;




(o) without limitation of the other provisions of this §14.1, the Trust shall at any
time fail to be the sole general partner of FPLP (or enters into any agreement to permit any
other Person to acquire a general partner interest in FPLP) or shall at any time be in
contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or
§9.3 (including, without limitation, the last paragraph of §9.3); or




(p) the Borrower shall make any principal payment under the 2007 Term Loan at a time
when the Minimum Liquidity does not equal or exceed the Minimum Liquidity Threshold (after
giving effect to such principal payment);



then, and in any such event, so long as the same may be continuing, the Agent may, and upon
the request of the Majority Lenders shall, (i) declare all amounts owing with respect to this
Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by the Borrower, the Trust and each of their respective
Subsidiaries and (ii) require that the Borrower Cash Collateralize the Letter of Credit Obligations
(in an amount equal to the then outstanding amount thereof); provided that in the event of any
Event of Default specified in §14.1(g) or 14.1(h), all such amounts shall become immediately due
and payable automatically and without any requirement of notice from any of the Lenders or the
Agent or action by the Lenders or the Agent, and the obligation of the Borrower to Cash
Collateralize the Letter of Credit Obligations as aforesaid shall automatically become effective,
in each case without further act of the Agent or any Lender.



Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of
Default arising as a result of the inclusion of any Real Estate Asset in the Unencumbered Pool at
any particular time of reference, if such Default or Event of Default is capable of being cured
by the exclusion of such Real Estate Asset from the Unencumbered Pool in accordance with, and
subject to, §8.13 and with all other covenant calculations under §10 or otherwise, the Borrower
shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the
Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing
compliance with §2.1 and with all of the covenants set forth in §10 (with calculations evidencing
such compliance after excluding from Adjusted Net Operating Income all of the Adjusted Net
Operating Income generated by the Real Estate Asset to be excluded from the Unencumbered Pool) and
with the Unencumbered Property Conditions, and otherwise certifying that, after giving effect to
the exclusion of such Real Estate Asset from the Unencumbered Pool, no Default or Event of Default
will be continuing.


 


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§14.2 Termination of Commitments. If any one or more Events of Default
specified in §14.1(g) or §14.1(h) shall occur, any unused portion of the Commitments or
other commitments to extend credit hereunder shall forthwith terminate and the Lenders shall
be relieved of all obligations to make Loans to the Borrower and the Agent and the Fronting
Bank shall be relieved of all further obligations to issue, extend or renew Letters of
Credit. If any other Event of Default shall have occurred and be continuing, the Agent may,
and upon the request of the Majority Lenders shall, terminate the unused portion of the
Commitments or other commitment to extend credit hereunder. No such termination of the
Commitments or other commitment to extend credit hereunder shall relieve the Borrower of any
of the Obligations or any of its existing obligations to the Agent or the Lenders arising
under other agreements or instruments.




§14.3 Remedies. In the event that one or more Events of Default shall have
occurred and be continuing, whether or not the Lenders shall have accelerated the maturity
of the Loans pursuant to §14.1, the Majority Lenders may direct the Agent to proceed to
protect and enforce the rights and remedies of the Agent and the Lenders under this
Agreement, the Notes, any or all of the other Loan Documents or under applicable law by suit
in equity, action at law or other appropriate proceeding (including for the specific
performance of any covenant or agreement contained in this Agreement or the other Loan
Documents or any instrument pursuant to which the Obligations are evidenced and, to the full
extent permitted by applicable law, the obtaining of the ex parte appointment of a
receiver), and, if any amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right or remedy of the Agent and
the Lenders under the Loan Documents or applicable law. No remedy herein conferred upon the
Lenders or the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given hereunder or under
any of the other Loan Documents or now or hereafter existing at law or in equity or by
statute or any other provision of law.




§14.4 Application of Funds.
After the exercise of remedies provided for herein (or after the Loans have
automatically become immediately due and payable and the Letter of Credit Obligations have
automatically been required to be Cash Collateralized as set forth in the proviso to the
penultimate paragraph of §14.1), any amounts received on account of the Obligations shall,
subject to the provisions of §§4.11 and 4.12, be applied by the Agent in the following
order:



First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including fees, charges and disbursements of counsel to the Agent and
amounts payable under §§4.4, 4.5, 4.6, 4.8 and 17) payable to the Agent in its capacity as such;


 


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Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the Fronting Bank (including fees, charges and disbursements of counsel to the respective
Lenders and the Fronting Bank and amounts payable under §§4.4, 4.5, 4.6, 4.8 and 17), ratably among
them in proportion to the respective amounts described in this clause Second payable to
them;



Third, to payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans, Reimbursement Obligations and other Obligations,
ratably among the Lenders and the Fronting Bank in proportion to the respective amounts described
in this clause Third payable to them;



Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and Reimbursement Obligations, ratably among the Lenders and the Fronting Bank in
proportion to the respective amounts described in this clause Fourth held by them;



Fifth, to the Agent for the account of the Fronting Bank, to Cash Collateralize that
portion of Letter of Credit Obligations comprised of the aggregate undrawn amount of Letters of
Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to §§4.11 and 5.1;
and



Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by law.



Subject to §§4.11 and 5.1.4, amounts used to Cash Collateralize the aggregate undrawn amount of
Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under
such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after
all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.




§15. SECURITY INTEREST AND SET-OFF.




§15.1 Security Interest.
Borrower hereby grants to the Agent, on behalf of and for the benefit of the Lenders,
and to each Lender, a lien, security interest and right of setoff as security for all
liabilities and obligations to the Lenders, whether now existing or hereafter arising, upon
and against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Agent or any Lender or any entity under
the control of KeyCorp. and its successors and assigns, or in transit to any of them.


 


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§15.2 Set-Off and Debit. (i) If any Event of Default or other event which
would entitle the Agent to accelerate the Loans occurs, or (ii) at any time, whether or not
any Default or Event of Default exists, in the event any attachment, trustee process,
garnishment, or other levy or lien is, or is sought to be, imposed on any property of the
Borrower; then, in any such event, any such deposits, balances or other sums credited by or
due from the Agent or any Lender, or from any such affiliate of the Agent or any Lender, to
the Borrower may to the fullest extent not prohibited by applicable law at any time or from
time to time, without regard to the existence, sufficiency or adequacy of any other
collateral, and without notice or compliance with any other condition precedent now or
hereafter imposed by statute, rule of law or otherwise, all of which are hereby waived, be
set off, debited and appropriated, and applied by the Agent or any Lender, as the case may
be, against any or all of the Obligations irrespective of whether demand shall have been
made and although such Obligations may be unmatured, in such manner as the Agent or the
applicable Lender in its sole and absolute discretion may determine. Within five (5)
Business Days of making any such set off, debit or appropriation and application, the Agent
agrees to notify the Borrower thereof, provided that the failure to give such notice shall
not affect the validity of such set off, debit or appropriation and application. ANY AND
ALL RIGHTS TO REQUIRE THE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED. Each of the Lenders agrees with each other
Lender that (a) if an amount to be set off is to be applied to indebtedness of the Borrower
to such Lender, other than the obligations evidenced by the Note held by such Lender, such
amount shall be applied ratably to such other indebtedness and to the obligations evidenced
by the Note held by such Lender, and (b) if such Lender shall receive from the Borrower,
whether by voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Note held by such Lender by proceedings against
the Borrower at law or in equity or by proof thereof in bankruptcy, reorganization
liquidation, receivership or similar proceedings, or otherwise, and shall retain and apply
to the payment of the Note held by such Lender any amount in excess of its ratable portion
of the payments received by all of the Lenders with respect to the Note held by all of the
Lenders, such Lender will make such disposition and arrangements with the other Lenders with
respect to such excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Lender receiving in respect of the Note
held by it its proportionate payment as contemplated by this Agreement; provided that if all
or any part of such excess payment is thereafter recovered from such
Lender, such disposition and arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.




§15.3 Right to Freeze. The Agent and each of the Lenders shall also have the
right, at its option, upon the occurrence of any event which would entitle the Agent or any
Lender to set off or debit as set forth in §15.2, to freeze, block or segregate any such
deposits, balances and other sums so that the Borrower may not access, control or draw upon
the same.




§15.4 Additional Rights. The rights of the Agent, the Lenders and each
affiliate of Agent and each of the Lenders under this Section 15 are in addition to, and not
in limitation of, other rights and remedies, including other rights of set off, which the
Agent or any Lender may have.


 


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§16. THE AGENT.




§16.1 Authorization.


(a) The Agent is authorized to take such action on behalf
of each of the Lenders and to exercise all such powers as are hereunder and under any of the
other Loan Documents and any related documents delegated to the Agent, together with such
powers as are reasonably incident thereto, provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been assumed by the Agent. The
relationship between the Agent and the Lenders is and shall be that of agent and principal
only, and nothing contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee or fiduciary for any Lender.




(b) The Borrower, without further inquiry or investigation, shall, and is hereby
authorized by the Lenders to, assume that all actions taken by the Agent hereunder and in
connection with or under the Loan Documents are duly authorized by the Lenders. The Lenders
shall notify Borrower of any successor to Agent by a writing signed by Majority Lenders,
which successor shall be reasonably acceptable to the Borrower so long as no Default or
Event of Default has occurred and is continuing. The Borrower acknowledges that any Lender
which acquires KeyBank is acceptable as a successor to the Agent.




§16.2 Employees and Agents. The Agent may exercise its powers and execute its
duties by or through employees or agents and shall be entitled to take, and to rely on,
advice of counsel concerning all matters pertaining to its rights and duties under this
Agreement and the other Loan Documents. The Agent may utilize the services of such Persons
as the Agent in its sole discretion may reasonably determine, and all reasonable fees and
expenses of any such Persons shall be paid by the Borrower.




§16.3 No Liability. Neither the Agent, nor any of its shareholders, directors,
officers or employees nor any other Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or approval given or any action
taken, or omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment whatsoever, except that the Agent may be
liable for losses due to its willful misconduct or gross negligence, as finally determined
by a court of competent jurisdiction.




§16.4 No Representations. The Agent shall not be responsible for the execution
or validity or enforceability of this Agreement, the Notes or any of the other Loan
Documents or for the validity, enforceability or collectibility of any such amounts owing
with respect to the Notes, or for any recitals or statements, warranties or representations
made herein or in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of the Trust or the Borrower or any of their
respective Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements in this Agreement or the
other Loan Documents. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrower or the Trust or any holder of any
of the Notes shall have been duly authorized or is true, accurate and complete. The Agent
has not made nor does it now make any representations or warranties, express or implied, nor
does it assume any liability to the Lenders, with respect to the credit worthiness or
financial condition of the Borrower or any of its Subsidiaries or the Trust or any of the
Subsidiaries or any tenant under a Lease or any other entity. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender, and based
upon such information and documents as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement.


 


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§16.5 Payments.




(a) A payment by the Borrower to the Agent hereunder or any of the other Loan Documents
for the account of any Lender shall constitute a payment to such Lender on the date
received, if before 1:00 p.m. (Cleveland, Ohio time), and if after 1:00 p.m. (Cleveland,
Ohio time), on the next Business Day. The Agent agrees to distribute to each Lender such
Lender’s pro rata share of payments received by the Agent for the accounts of all the
Lenders, as provided herein or in any of the other Loan Documents. All such payments by the
Agent to the Lenders shall be made on the date received, if before 1:00 p.m., and if after
1:00 p.m., on the next Business Day.




(b) If in the reasonable opinion of the Agent the distribution of any amount received
by it in such capacity hereunder, under the Notes or under any of the other Loan Documents
might involve it in material liability, it may refrain from making distribution until its
right to make distribution shall have been adjudicated by a court of competent jurisdiction,
provided that the Agent shall invest any such undistributed
amounts in overnight obligations on behalf of the Lenders and interest thereon shall be
paid pro rata to the Lenders. If a court of competent jurisdiction shall adjudge that any
amount received and distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its proportionate share of
the amount so adjudged to be repaid or shall pay over the same in such manner and to such
Persons as shall be determined by such court.




§16.6 Holders of Notes. The Agent may deem and treat the payee of any Notes or
the Purchaser of any Letter of Credit Participation as the absolute owner or purchaser
thereof for all purposes hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder, assignee or transferee.




§16.7 Indemnity. The Lenders ratably and severally agree hereby to indemnify
and hold harmless the Agent and its Affiliates from and against any and all claims, actions
and suits (whether groundless or otherwise), losses, damages, costs, expenses (including any
expenses for which the Agent has not been reimbursed by the Borrower as required by §17),
and liabilities of every nature and character arising out of or related to this Agreement,
the Notes, or any of the other Loan Documents or the transactions contemplated or evidenced
hereby or thereby, or the Agent’s actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by the Agent’s willful misconduct or
gross negligence, as finally determined by a court of competent jurisdiction.




§16.8 Agent as Lender. In its individual capacity as a Lender, KeyBank shall
have the same obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes and as the
purchaser of any Letter of Credit Participation, as it would have were it not also the
Agent.


 


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§16.9 Notification of Defaults and Events of Default. Each Lender hereby
agrees that, upon learning of the existence of a Default or an Event of Default, it shall
(to the extent notice has not previously been provided) promptly notify the Agent thereof.
The Agent hereby agrees that upon receipt of any notice under this §16.9 it shall promptly
notify the other Lenders of the existence of such Default or Event of Default.




§16.10 Duties in Case of Enforcement. In the case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration of the
Obligations shall have occurred, the Agent shall, at the request, or may, upon the consent,
of the Majority Lenders, and provided that the Lenders have given to the Agent such
additional indemnities and assurances against
expenses and liabilities as the Agent may reasonably request, proceed to enforce the
provisions of this Loan Agreement and the other Loan Documents and the exercise of any other
legal or equitable rights or remedies as it may have hereunder or under any other Loan
Document or otherwise by virtue of applicable law, or to refrain from so acting if similarly
requested by the Majority Lenders. The Agent shall be fully protected in so acting or
refraining from acting upon the instruction of the Majority Lenders, and such instruction
shall be binding upon all the Lenders. The Majority Lenders may direct the Agent in writing
as to the method and the extent of any such foreclosure, sale or other disposition or the
exercise of any other right or remedy, the Lenders hereby agreeing to severally indemnify
and hold the Agent harmless from all costs and liabilities incurred in respect of all
actions taken or omitted in accordance with such direction, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes the Agent’s
compliance with such direction may expose the Agent to liability or be contrary to the Loan
Documents or applicable law. The Agent may, in its discretion but without obligation, in
the absence of direction from the Majority Lenders, take such interim actions as it believes
reasonably necessary to preserve the rights of the Lenders hereunder, including but not
limited to petitioning a court for injunctive relief or appointment of a receiver. Each of
the Lenders acknowledges and agrees that, except for any rights of set-off pursuant to and
in accordance with §15.2 hereof, no individual Lender may separately enforce or exercise any
of the provisions of any of the Loan Documents, including without limitation the Notes,
other than through the Agent. The Agent shall advise the Lenders of all such action taken
by the Agent.




§16.11 Successor Agent. KeyBank, or any successor Agent, may resign as Agent at
any time by giving at least 30 days prior written notice thereof to the Lenders and to the
Borrower. Any such resignation shall be effective upon appointment and acceptance of a
successor Agent, as hereinafter provided, and, at the request of the Majority Lenders, the
Agent will resign if its Commitment is less than $20,000,000, unless such circumstance is a
result of events other than the sale by the Agent of its Commitment below $20,000,000. Upon
any such resignation, the Majority Lenders shall have the right to appoint a successor
Agent, which is a Lender under this Agreement, provided that so long as no Default or Event
of Default has occurred and is



 


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continuing the Borrower shall have the right to approve any
successor Agent, which approval shall not be unreasonably withheld. If, in the case of a
resignation by the Agent, no successor Agent shall have been so appointed by the Majority
Lenders and approved by the Borrower, and shall have accepted such appointment, within
thirty (30) days after the retiring Agent’s giving of notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint any one of the other Lenders as a
successor Agent. The Borrower acknowledges that any Lender which acquires KeyBank is
acceptable as a successor Agent. Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from all further duties and obligations as Agent under this Agreement.
After any Agent’s resignation hereunder as Agent, the provisions of this §16 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was Agent under
this Agreement. The Agent agrees that it shall not assign any of
its rights or duties as Agent to any other Person. The Agent may be removed at the
direction of the Majority Lenders in the event of a final judicial determination (in which
the Agent had an opportunity to be heard) that the Agent had acted in a grossly negligent
manner or in willful misconduct.




§16.12 Notices. Any notices or other information required hereunder to be
provided to the Agent (with copies to the Agent for each Lender) shall be forwarded by the
Agent to each of the Lenders on the same day (if practicable) and, in any case, on the next
Business Day following the Agent’s receipt thereof.




§16.13 Other Agents. Neither the Co-Syndication Agents nor the Documentation
Agent shall have any liabilities or obligations hereunder in its capacity as such.



§17. 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) the reasonable fees, expenses and disbursements of the
Agent’s outside counsel or any local counsel to the Agent incurred in connection with the
preparation, administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, and amendments, modifications, approvals, consents
or waivers hereto or hereunder, (c) the fees, expenses and disbursements of the Agent
incurred by the Agent in connection with the preparation, administration or interpretation
of the Loan Documents and other instruments mentioned herein, including, without limitation,
the costs incurred by the Agent in connection with its inspection of the Eligible
Unencumbered Properties, and, without double-counting amounts under clause (b) above, the
fees and disbursements of the Agent’s counsel in preparing the documentation, (d) the fees,
costs, expenses and disbursements of the Agent and its Affiliates incurred in connection
with the syndication of the Loans (whether occurring before or after the closing hereunder),
including, without limitation, reasonable legal fees, travel costs, costs of preparing
syndication materials and photocopying costs, (e) all reasonable expenses (including
reasonable out-of-pocket attorneys’ fees and costs, and the fees and costs of engineers,
appraisers, surveyors, investment bankers, or other experts retained by any Lender or the
Agent in connection with any such enforcement proceedings) incurred by any Lender or



 


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the
Agent in connection with (i) the enforcement of or preservation of rights under any of the
Loan Documents against the Borrower or any of its Subsidiaries or the Trust or the
administration thereof after the occurrence and during the continuance of a Default or Event
of Default (including, without limitation, expenses incurred in any restructuring and/or
“workout” of the Loans), and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to any Lender’s or the Agent’s relationship with
the Borrower or any of its Subsidiaries or the Trust, (f) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches and filings, UCC
terminations or mortgage discharges, and the like, and (g) all costs
incurred by the Agent in the future in connection with its inspection of the Eligible
Unencumbered Properties (or any proposed Eligible Unencumbered Property) or with the
addition of any Eligible Unencumbered Property. The covenants of this §17 shall survive the
repayment of the amounts owing under the Notes and this Agreement and the termination of
this Agreement and the obligations of the Lenders hereunder.



§18. INDEMNIFICATION. The Borrower agrees to indemnify and hold harmless the Agent and each
of the Lenders and the shareholders, directors, agents, officers, subsidiaries and
affiliates of the Agent and each of the Lenders from and against any and all claims, actions
and suits, whether groundless or otherwise, and from and against any and all liabilities,
losses (including amounts, if any, owing to any Lender pursuant to §§4.4, 4.5, 4.6 and 4.8),
settlement payments, obligations, damages and expenses of every nature and character in
connection therewith, arising out of this Agreement or any of the other Loan Documents or
the transactions contemplated hereby or thereby or which otherwise arise in connection with
the financing, including, without limitation, (a) any actual or proposed use by the Borrower
or any of its Subsidiaries of the proceeds of any of the Loans, (b) the Borrower or any of
its Subsidiaries entering into or performing this Agreement or any of the other Loan
Documents, or (c) pursuant to §8.16, in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal counsel
incurred in connection with any such investigation, litigation or other proceeding,
provided, however, that the Borrower shall not be obligated under this §18 to indemnify any
Person for liabilities arising from such Person’s own gross negligence, willful misconduct
or breach of this Agreement, as finally determined by a court of competent jurisdiction. In
litigation, or the preparation therefor, the Borrower shall be entitled to select counsel
reasonably acceptable to the Majority Lenders, and the Agent (as approved by the Majority
Lenders) shall be entitled to select their own supervisory counsel, and, in addition to the
foregoing indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses of
each such counsel. Prior to any settlement of any such litigation by the Lenders, the
Lenders shall provide the Borrower and the Trust with notice and an opportunity to address
any of their concerns with the Lenders, and the Lenders shall not settle any litigation
without first obtaining Borrower’s consent thereto, which consent shall not be unreasonably
withheld or delayed, provided that such consent shall not be required at any time that an
Event of Default has occurred and is continuing. If and to the extent that the obligations
of the Borrower under this §18 are unenforceable for any reason, the Borrower hereby agrees
to make the maximum contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The provisions of this §18 shall survive the repayment of
the amounts owing under the Notes and this Agreement and the termination of this Agreement
and the obligations of the Lenders hereunder and shall continue in full force and effect as
long as the possibility of any such claim, action, cause of action or suit exists. The
indemnification provisions of this §18 shall apply to any indemnity proceeding arising
during the pendency of any bankruptcy proceeding filed by or against the Borrower and/or any
of its Subsidiaries.


 


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§19. SURVIVAL OF COVENANTS, ETC. All covenants, agreements, representations and warranties
made herein, in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries or the Trust
pursuant hereto shall be deemed to have been relied upon by the Lenders and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them, and shall
survive the making by the Lenders of any of the Loans and the issuance, extension or renewal
of any Letter of Credit, as herein contemplated, and shall continue in full force and effect
so long as any Letter of Credit or any amount due under this Agreement or the Notes or any
of the other Loan Documents remains outstanding or any Lender has any obligation to make any
Loans or purchase Letter of Credit Participations or the Fronting Bank has any obligation to
issue, extend or renew Letters of Credit. The indemnification obligations of the Borrower
provided herein and in the other Loan Documents shall survive the full repayment of amounts
due and the termination of the obligations of the Lenders hereunder and thereunder to the
extent provided herein and therein. All statements contained in any certificate or other
paper delivered to any Lender or the Agent at any time by or on behalf of the Borrower or
any of its Subsidiaries or the Trust pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the Borrower or such
Subsidiary or the Trust hereunder.



§20. ASSIGNMENT; PARTICIPATIONS; ETC.




§20.1 Conditions to Assignment by Lenders. Except as provided herein, each
Lender may assign to one or more Eligible Assignees all or a portion (in a minimum amount of
$5,000,000) of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of the Loans at
the time owing to it, the Notes held by it and its participating interest in the risk
relating to any Letters of Credit); provided that (a) other than during the continuance of
an Event of Default, the Agent, the Swingline Lender, the Fronting Bank and the Borrower
each shall have the right to approve any assignment to an Eligible Assignee, which approval
shall not be unreasonably withheld or delayed, (b) subject to the provisions of §2.7, each
Lender shall have at all times an amount of its Commitment of not less than $5,000,000
unless otherwise consented to by the Agent and (c) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as hereinafter defined), an
assignment and assumption, substantially in the form of Exhibit D hereto (an
“Assignment and Assumption”), together with any Notes subject to such assignment. Upon such
execution, delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Assumption, which effective date shall be at least two (2) Business
Days after the execution thereof unless otherwise agreed or accepted by the Agent (provided
any assignee has assumed the obligation to fund any outstanding Libor Rate Loans), (i) the
assignee thereunder shall be a party hereto and, to the extent provided in such Assignment
and Assumption, have the rights and obligations of a Lender hereunder and thereunder, and
(ii) the assigning Lender shall, to the extent
provided in such assignment and upon payment to the Agent of the registration fee
referred to in §20.3, be released from its obligations under this Agreement. Any such
Assignment and Assumption shall run to the benefit of the Borrower and a copy of any such
Assignment and Assumption shall be delivered by the Assignor to the Borrower.


 


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Notwithstanding the provisions of subclause (a) of the preceding paragraph, any Lender may,
without the consent of the Borrower, make an assignment otherwise permitted hereunder to (x)
another Lender, and (y) an Affiliate of such Lender, provided that such Affiliate is an Eligible
Assignee. In no event may any Lender assign or participate (under §20.5) all or any portion of its
Loans or Commitment to the Borrower or any of its Subsidiaries or Affiliates.




§20.2 Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Assumption, the parties to the assignment
thereunder confirm to and agree with each other and the other parties hereto as follows: (a)
other than the representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, the assigning Lender
makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, the other Loan Documents or any other instrument or document furnished pursuant
hereto; (b) the assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower and its Subsidiaries
or the Trust or any other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the Borrower and its Subsidiaries or the
Trust or any other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or thereto; (c) such
assignee confirms that it has received a copy of this Agreement, together with copies of the
most recent financial statements referred to in §7.4 and §8.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Assumption; (d) such assignee will, independently and without
reliance upon the assigning Lender, the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (e) such assignee
represents and warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to the Agent by the terms
hereof or thereof, together with such powers as are reasonably incidental thereto; (g) such
assignee agrees that it will perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as a Lender; (h) such
assignee represents and warrants that it is legally authorized to enter into such Assignment
and Assumption; and (i) such assignee acknowledges that it has made arrangements with the
assigning Lender satisfactory to such assignee with respect to its pro rata share of Letter
of Credit Fees in respect of outstanding Letters of Credit.


 


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§20.3 Register. The Agent shall maintain a copy of each Assignment and
Assumption delivered to it and a register or similar list (the “Register”) for the
recordation of the names and addresses of the Lenders and the Commitment Percentages of, and
principal amount of the 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
and the Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower and the Lenders at any reasonable time and from time to time upon
reasonable prior notice. Except in the case of an assignment by a Lender to its Affiliate,
upon each such recordation, the assigning Lender agrees to pay to the Agent a registration
fee in the sum of $2,500 and all legal fees and expenses incurred by the Agent in connection
with such assignment.




§20.4 New Notes. Upon its receipt of an Assignment and Assumption executed by
the parties to such assignment, together with each Note subject to such assignment, the
Agent shall (a) record the information contained therein in the Register, and (b) give
prompt notice thereof to the Borrower and the Lenders (other than the assigning Lender).
Unless done simultaneously with the Assignment and Assumption, within two (2) Business Days
after receipt of such notice, the Borrower, at its own expense, shall execute and deliver to
the Agent, in exchange for each surrendered Revolving Credit Note or Swingline Note, a new
Revolving Credit Note or Swingline Note, as applicable, to the order of such Eligible
Assignee in an amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Assumption and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Revolving Credit Note and other Note, if applicable, to the
order of the assigning Lender in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the surrendered Notes, shall be
in an aggregate principal amount equal to the aggregate principal amount of the surrendered
Notes, shall be dated the effective date of such Assignment and Assumption and shall
otherwise be in substantially the form of the assigned Notes. The surrendered Notes shall
be canceled and returned to the Borrower.




§20.5 Participations. Each Lender may sell participations to one or more
lending institutions or other entities in all or a portion of such Lender’s rights and
obligations under this Agreement and the other Loan Documents; provided that (a) each such
participation shall be in an amount of not less than $5,000,000, (b) any such sale or
participation shall not affect the rights and duties of the selling Lender hereunder to the
Borrower and the Agent and the Lender shall continue to exercise all approvals, disapprovals
and other functions of a Lender, (c) the only rights granted to the participant pursuant to
such participation arrangements with respect to waivers, amendments or modifications of, or
approvals under, the Loan Documents shall be the rights to approve waivers, amendments or
modifications that would reduce the principal of or the interest rate on any Loans (other
than a waiver of default interest and changes in calculation of the Consolidated Total
Leverage Ratio that may indirectly affect pricing), extend the term or increase the amount
of the Commitment of such Lender as it relates to such participant in a manner not otherwise
permitted under the Loan Documents, reduce the amount of any fees to which such participant
is entitled or extend any regularly scheduled payment date for principal or interest in a
manner not otherwise permitted under the Loan Documents, and (d) no participant shall have
the right to grant further participations or assign its rights, obligations or interests
under such participation to other Persons without the prior written consent of the Agent,
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§20.6 Pledge by Lender. Notwithstanding any other provision of this Agreement,
any Lender at no cost to the Borrower may at any time pledge all or any portion of its
interest and rights under this Agreement (including all or any portion of its Notes) to any
of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C.
§341. No such pledge or the enforcement thereof shall release the pledgor Lender from its
obligations hereunder or under any of the other Loan Documents.




§20.7 No Assignment by Borrower. The Borrower shall not assign or transfer any
of its rights or obligations under any of the Loan Documents without prior Unanimous Lender
Approval.




§20.8 Disclosure. The Borrower agrees that, in addition to disclosures made in
accordance with standard banking practices, any Lender may disclose information obtained by
such Lender pursuant to this Agreement to assignees or participants and potential assignees
or participants hereunder.




§20.9 Syndication. The Borrower acknowledges that each of the Agent and the
Arranger intends, and shall have the right, by itself or through its Affiliates, to
syndicate or enter into co-lending arrangements with respect to the Loans and the Total
Commitment pursuant to this §20. The Arranger, in cooperation with the Borrower, will
manage all aspects of the syndication, including the selection of co-lenders, the
determination of when Arranger will approach potential co-lenders and the final allocations
among co-lenders. Each of the Borrower and the Trust agrees to assist Arranger actively in
achieving a timely syndication that is reasonably satisfactory to the Arranger, such
assistance to include, among other things, (a) direct contact during the syndication between
the Borrower’s and the Trust’s senior officers, representatives and advisors, on the one
hand, and prospective co-lenders, on the other hand at such times and places as Arranger may
reasonably request, (b) providing to Arranger all financial and other information with
respect to the Borrower and the Trust and the transactions contemplated hereby that Arranger
may reasonably request, including but not limited to financial projections relating to the
foregoing, and (c) assistance in the preparation of a confidential information
memorandum and other marketing materials to be used in connection with the syndication,
and the Borrower and the Trust agree to cooperate with the Agent’s and the Arranger’s and
their Affiliate’s syndication and/or co-lending efforts, such cooperation to include,
without limitation, the provision of information reasonably requested by potential syndicate
members. In addition, the Borrower and the Trust agree that, prior to and during the
syndication of the Total Commitment (which for purposes hereof shall be deemed to be
completed 90 days after the Closing Date), neither the Borrower nor the Trust will permit
any offering, placement or arrangement of any competing issues of debt securities or
commercial bank facilities of the Borrower, the Trust and any of their Subsidiaries, unless
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§21. NOTICES, ETC.


(a) Except as otherwise expressly provided in this Agreement, all
notices and other communications made or required to be given pursuant to this Agreement or
the Notes shall be in writing and shall be delivered in hand, mailed by United States
registered or certified first class mail, postage prepaid, sent by overnight courier, or
sent by facsimile and confirmed by delivery via courier or postal service, addressed as
follows:




(ii) if to the Borrower or the Trust, at 7600 Wisconsin Avenue,
11th Floor, Bethesda, Maryland 20814, attention Barry Bass, Chief
Financial Officer (facsimile: (301) 986-5554; e-mail:
Barry.Bass@first-potomac.com), with a copy to David Slotkin, Esq., Hogan
Lovells US LLP, Columbia Square, 555 13th St., NW,
Washington, DC 20004 (facsimile: (202) 637-5910; e-mail:
david.slotkin@hoganlovells.com) and to Gordon Wilson, Esq., Hogan
Lovells US LLP, Columbia Square, 555 13th St., NW,
Washington, DC 20004 (facsimile: (202) 637 5910; e-mail:
gordon.wilson@hoganlovells.com), or to such other address for notice as
the Borrower or the Trust shall have last furnished in writing to the
Agent;




(iii) if to the Agent, Swingline Lender or Fronting Bank, to
KeyBank National Association, 127 Public Square, Cleveland, Cleveland,
OH 44114, attention John C. Scott (facsimile: (216) 689-4997; e-mail:
John_C_Scott@KeyBank.com), with a copy to Cheri Van Klompenberg, KeyBank
Institutional Real Estate, 1675 Broadway, Suite 400, Denver Colorado
80202 (facsimile: 720-904-4420; email:
Cheryl_F_Vanklompenberg@KeyBank.com), or such other address for notice
as the Agent shall have last furnished in writing to the Borrower, with
a copy to Pamela M. MacKenzie, Esq., Goulston & Storrs, 400 Atlantic
Avenue, Boston, Massachusetts 02110-3333 (facsimile: (617)-574-7615;
e-mail: pmackenzie@goulstonstorrs.com ), or at such other address for
notice as the Agent shall last have furnished in writing to the Person
giving the notice; and




(iv) if to any Lender, at such Lender’s address set forth on
Schedule 2 hereto, or such other address for notice as such Lender shall
have last furnished in writing to the Person giving the notice.



Any such notice or demand shall be deemed to have been duly given or made and to have become
effective (i) if delivered by hand, overnight courier, or facsimile to the party to which it is
directed, at the time of the receipt thereof by such party or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on the third Business
Day following the mailing thereof. Notices and other communications delivered through electronic
communications to the extent provided in subsection (b) below, shall be effective as provided in
such subsection (b).


 


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(b) Electronic Communications. Notices and other communications to the Lenders and the
Fronting Bank hereunder may be delivered or furnished by electronic communication (including
e mail and Internet or intranet websites) pursuant to procedures approved by the Agent,
provided that the foregoing shall not apply to notices to any Lender or the Fronting Bank if
such Lender or the Fronting Bank, as applicable, has notified the Agent that it is incapable
of receiving notices by electronic communication. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications.



Unless the Agent otherwise prescribes, (i) notices and other communications sent to an
electronic mail (“e-mail”) address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function, as
available, return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent (and received, if the acknowledgment contemplated
above has been obtained) at the opening of business on the next business day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and identifying
the website address therefor.




(c) The Platform. THE PLATFORM (as defined in §8.10(c)) IS PROVIDED “AS IS”
AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR
THE PLATFORM. In no event shall the Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to the Borrower, any Lender,
the Fronting Bank or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s
or the Agent’s transmission of Borrower Materials through the Internet, except to the extent
that such losses, claims, damages, liabilities or expenses have resulted from the gross
negligence, willful misconduct or bad faith breach of this Agreement of such Agent Party;
provided, however, that in no event shall any Agent Party have any liability to the
Borrower, any Lender, the Fronting Bank or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual damages).


 


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(d) Change of Address, Etc. Each of the Borrower, the Agent, the Fronting Bank
and the Swingline Lender may change its address, electronic mail address, telecopier or
telephone number for notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address, electronic mail address,
telecopier or telephone number for notices and other communications hereunder by notice to
the Borrower, the Agent, the Fronting Bank and the Swingline Lender. In addition, each
Lender agrees to notify the Agent from time to time to ensure that the Agent has on record
(i) an effective address, contact name, telephone number, telecopier number and electronic
mail address to which notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.




(e) Reliance by Agent, Fronting Bank and Lenders. The Borrower shall indemnify
the Agent, the Fronting Bank, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the good faith reliance by such
Person on each notice purportedly given by or on behalf of the Borrower, provided, however,
that the Borrower shall have no liability hereunder for any such indemnified party’s gross
negligence or willful misconduct in connection therewith. All telephonic notices to and
other telephonic communications with the Agent may be recorded by the Agent, and each of the
parties hereto hereby consents to such recording.



§22. FPLP AS AGENT FOR THE BORROWER. The Borrower (other than FPLP) hereby appoints FPLP as
its agent with respect to the receiving and giving of any notices, requests, instructions,
reports, certificates (including, without limitation, compliance certificates), schedules,
revisions, financial statements or any other written or oral communications hereunder. The
Agent and each Lender is hereby entitled to rely on any communications given or transmitted
by FPLP as if such communication were given or transmitted by each and every Borrower;
provided however, that any communication given or transmitted by any Borrower other than
FPLP shall be binding with respect to such Borrower. Any communication given or transmitted
by the Agent or any Lender to FPLP shall be deemed given and transmitted to each and every
Borrower.



§23. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. THIS AGREEMENT AND EACH OF THE
OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER
THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY
THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH
OF THE BORROWER, TRUST AND THEIR SUBSIDIARIES AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY COURT IN THE STATE
OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN NEW YORK AND CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER, THE TRUST OR THEIR SUBSIDIARIES BY MAIL AT THE ADDRESS SPECIFIED IN §21. THE
BORROWER, THE TRUST AND THEIR SUBSIDIARIES HEREBY WAIVE ANY OBJECTION THAT ANY OF THEM MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS
BROUGHT IN AN INCONVENIENT COURT.


 


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§24. HEADINGS. The captions in this Agreement are for convenience of reference only and
shall not define or limit the provisions hereof.



§25. COUNTERPARTS. This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one instrument.
In proving this Agreement it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom enforcement is sought.



§26. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents executed in
connection herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated, except as provided in §28.


 


105









 





§27. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS. EXCEPT TO THE EXTENT EXPRESSLY
PROHIBITED BY LAW, THE BORROWER AND ITS SUBSIDIARIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO
A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE
EXTENT EXPRESSLY PROHIBITED BY LAW, THE BORROWER AND ITS SUBSIDIARIES HEREBY WAIVE ANY RIGHT
ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING
SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH
OF THE BORROWER AND ITS SUBSIDIARIES (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE
AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS CONTAINED HEREIN.



§28. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly provided in this
Agreement, any consent or approval required or permitted by this Agreement may be given, and
any term of this Agreement or of any of the other Loan Documents may be amended, and the
performance or observance by the Borrower or the Trust or any of their respective
Subsidiaries of any terms of this Agreement or the other Loan Documents or the continuance
of any Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the written consent
of the Majority Lenders.



Notwithstanding the foregoing, the approval of each Lender directly affected thereby shall be
required for any amendment, modification or waiver of this Agreement that:




(i) reduces or forgives any principal of any unpaid Loan or any
interest thereon (including any general waiver of interest “breakage”
costs) or any fees due to such Lender hereunder, or permits any
prepayment not otherwise permitted hereunder; or




(ii) changes the unpaid principal amount of any Loan, reduces the
rate of interest applicable to any Loan, or reduces any fee payable to
such the Lender hereunder; or




(iii) changes the date fixed for any payment of principal of or
interest on any Loan (including, without limitation, any extension of
the Maturity Date not contemplated herein) or any fees payable hereunder
(including, without limitation, the waiver of any monetary Event of
Default); or


 


106









 






(iv) changes the amount of such Lender’s Commitment (other than
pursuant to an assignment permitted under §20.1) or increases the amount
of the Total Commitment except as permitted hereunder;




And Unanimous Lender Approval shall be required for any amendment, modification or
waiver of this Agreement that:




(v) modifies any provision herein or in any other Loan Document
which by the terms thereof expressly requires Unanimous Lender Approval;
or




(vi) changes the definitions of Majority Lenders or Unanimous
Lender Approval; or




(vii) releases the Guaranty of the Trust.



Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or
consent which by its terms requires Unanimous Bank Approval or each affected Lender may be effected
with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without the consent of such
Lender and (y) any waiver, amendment or modification requiring Unanimous Lender Approval or each
affected Lender that by its terms affects any Defaulting Lender more adversely than other affected
Lenders shall require the consent of such Defaulting Lender.



In addition, no amendment or modification to or waiver of the provisions of §2.10 may be made
without the prior written consent of the Swingline Lender or of the provisions of §2.3(f) or §§5.1
through 5.5 may be made without the prior written consent of the Fronting Bank.



No waiver shall extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the Agent or the
Lenders or any Lender in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial to such right or any other rights of the Agent or the Lenders. No notice to or demand
upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or
other circumstances.


 


107









 





§29. SEVERABILITY. The provisions of this Agreement are severable, and if any one clause or
provision hereof shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such clause or
provision, or part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.



§30. INTEREST RATE LIMITATION. Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively, the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in respect of such
Loan but were not payable as a result of the operation of this §30 shall be cumulated and
the interest and Charges payable to such Lender in respect of other Loans or periods shall
be increased (but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender.



§31. USA PATRIOT ACT COMPLIANCE.


(a) The following notification is provided to the
Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318 (the
“USA Patriot Act”):



IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each person or entity that
opens an account, including any deposit account, treasury management account, loan, other extension
of credit, or other financial services product. The Agent and/or the Lenders will ask for
Borrower’s name, taxpayer identification number, business address, and other information that will
allow the Agent and the Lenders to identify Borrower. The Agent and/or the Lenders may also ask to
see Borrower’s legal organizational documents or other identifying documents.




(b) In order for the Agent to comply with the USA Patriot Act, prior to any Lender or
participant that is organized under the laws of a jurisdiction outside of the United States
of America becoming a party hereto, the Agent may request, and such Lender or participant
shall provide to the Agent, its name, address, tax identification number and/or such other
identification information as shall be necessary for the Agent to comply with federal law.


 


108









 





§32. ORIGINAL CREDIT AGREEMENT AMENDED AND RESTATED. On the Closing Date, this
Agreement shall amend and restate the Original Credit Agreement in its entirety but, for the
avoidance of doubt, shall not constitute a novation of the parties’ rights and obligations
thereunder or under the Notes or the other Loan Documents. On the Closing Date, the rights and
obligations of the parties hereto evidenced by the Original Credit Agreement shall be evidenced by
this Agreement, the Notes and the other Loan Documents, and the “Loans” as defined in the Original
Credit Agreement shall remain outstanding and be continued as, and converted to, Loans as defined
herein. The Borrower hereby ratifies and confirms its absolute and unconditional promise to pay to
the Lenders all Obligations under the Notes.



(Remainder of page intentionally left blank)



 


109









 





IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a sealed instrument
as of the date first set forth above.



	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender and as Agent, Swingline Lender and	 	 
	 	 	Fronting Bank	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ John Scott	 	 
	 

	 	 	 	 

Name: John Scott
	 	 
	 

	 	 	 	Title: Vice President	 	 






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	 	 	WELLS FARGO BANK NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender and as Co-Syndication Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Richard J. Vanderhyde	 	 
	 

	 	 	 	 

Name: Richard J. Vanderhyde
	 	 
	 

	 	 	 	Title: Vice President	 	 






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	 	 	BANK OF MONTREAL,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Lloyd Baron	 	 
	 

	 	 	 	 

Name: Lloyd Baron
	 	 
	 

	 	 	 	Title: Vice President	 	 






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	 	 	PNC BANK, NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender and Documentation Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Benjamin Adams	 	 
	 

	 	 	 	 

Name: Benjamin Adams
	 	 
	 

	 	 	 	Title: Vice President	 	 






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	 	 	CAPITAL ONE, N.A.,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Frederick H. Denecke	 	 
	 

	 	 	 	 

Name: Frederick H. Denecke
	 	 
	 

	 	 	 	Title: Vice President	 	 






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	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 	 	as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Gary D. Houston	 	 
	 

	 	 	 	 

Name: Gary D. Houston
	 	 
	 

	 	 	 	Title: Vice President	 	 






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	 	 	FIRST POTOMAC REALTY INVESTMENT LIMITED	 	 
	 	 	PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	1400 CAVALIER, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	1441 CROSSWAYS BLVD., LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






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	 	 	AIRPARK PLACE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Airpark Place Holdings LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP AMMENDALE COMMERCE CENTER, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	AQUIA TWO, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






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	 	 	FP DAVIS DRIVE LOT 5, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CROSSWAYS II LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FPR HOLDINGS LIMITED PARTNERSHIP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FPR General Partner, LLC	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






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	 	 	FP PROPERTIES, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP DIAMOND HILL, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP CAMPOSTELLA ROAD, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






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	 	 	GATEWAY HAMPTON ROADS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP GATEWAY 270, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GATEWAY MANASSAS II, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP 2550 ELLSMERE AVENUE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






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	 	 	FP GATEWAY WEST II, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP GOLDENROD LANE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP GREENBRIER CIRCLE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GTC I SECOND LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






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	 	 	FP HANOVER AB, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	HERNDON CORPORATE CENTER, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LINDEN II, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LUCAS WAY HAMPTON, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




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	 	 	FP PARK CENTRAL V, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP PATRICK CENTER, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP PINE GLEN, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	RESTON BUSINESS CAMPUS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




Signature Page to Third Amended and Restated Revolving Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	FP RIVERS BEND, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP 500 & 600 HP WAY, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP 1408 STEPHANIE WAY, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP STERLING PARK I, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




Signature Page to Third Amended and Restated Revolving Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	FP STERLING PARK 6, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP STERLING PARK 7, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Sterling Park 6, LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP STERLING PARK LAND, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Sterling Park 6, LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




Signature Page to Third Amended and Restated Revolving Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	VIRGINIA CENTER, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP WEST PARK, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP CRONRIDGE DRIVE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP GIRARD BUSINESS CENTER, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




Signature Page to Third Amended and Restated Revolving Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	FP GIRARD PLACE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	TECHCOURT, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP PARK CENTRAL I, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




Signature Page to Third Amended and Restated Revolving Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	FP TRIANGLE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP 1211 CONNECTICUT AVENUE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	4212 TECHCOURT, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




Signature Page to Third Amended and Restated Revolving Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	FP 440 1ST STREET, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac DC Holdings, LLC	 	 
	 	 	 	 	Its Managing Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP ATLANTIC CORPORATE PARK, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP 3 FLINT HILL, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP PARK CENTRAL II, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




Signature Page to Third Amended and Restated Revolving Credit Agreement




 


 









 







	 	 	 	 	 	 	 	 	 
	 	 	INTERSTATE PLAZA HOLDING LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Interstate Plaza Operating LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	ENTERPRISE CENTER I, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP REDLAND TECHNOLOGY CENTER LP	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Redland GP, LLC	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Redland, LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP ASHBURN, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Barry H. Bass	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






Signature Page to Third Amended and Restated Revolving Credit Agreement





 


 









 





EXHIBIT A




[THIRD/SECOND] [AMENDED AND RESTATED] REVOLVING CREDIT NOTE



			
	 	 	 
	[$                    ]
	 	Date: June 16, 2011






FOR VALUE RECEIVED, the undersigned First Potomac Realty Investment Limited Partnership, a
Delaware limited partnership and each of the other undersigned parties and other parties who are or
from time to time become a Borrower under (and as defined in) the Revolving Credit Agreement
referred to (and defined) below (hereinafter, together with their respective successors in title
and assigns, collectively called the “Borrower”), by this promissory note (hereinafter, called
“this Note”), absolutely and unconditionally, jointly and severally promises to pay to the order of
[                                        ], individually in its capacity as a Lender under the Revolving Credit
Agreement (hereinafter, together with its successors in title and assigns, called the “Bank”), the
principal sum of [                                         ($                    )], or so much thereof as shall have been
advanced by the Bank to the Borrower by way of Loans and Letters of Credit under (and as defined
in) the Revolving Credit Agreement and shall remain outstanding, such payment to be made as
hereinafter provided, and to pay interest on the principal sum outstanding hereunder from time to
time from and after the date hereof until the said principal sum or the unpaid portion thereof
shall have become due and payable as hereinafter provided.



Capitalized terms used herein without definition shall have the meanings set forth in the
Revolving Credit Agreement.



The unpaid principal (not at the time overdue) under this Note shall bear interest at the rate
or rates from time to time in effect under the Revolving Credit Agreement. Accrued interest on the
unpaid principal under this Note shall be payable on the dates specified in the Revolving Credit
Agreement.



On the Maturity Date there shall become absolutely due and payable by the Borrower hereunder,
and the Borrower hereby jointly and severally promises to pay to the Bank, the balance (if any) of
the principal hereof then remaining unpaid, all of the unpaid interest accrued hereon and all (if
any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby or
otherwise due under or in connection with the Revolving Credit Agreement.



Each overdue amount (whether of principal, interest or otherwise) payable hereunder shall (to
the extent permitted by applicable law) bear interest at the rates and on the terms provided in the
Revolving Credit Agreement. The unpaid interest accrued on each overdue amount in accordance with
the foregoing terms of this paragraph shall become and be absolutely due and payable by the
Borrower to Bank on demand by the Agent. Interest on each overdue amount will continue to accrue
as provided by the foregoing terms of this paragraph, and will (to the extent permitted by
applicable law) be
compounded daily until the obligations of the Borrower in respect of the payment of such overdue
amount shall be discharged (whether before or after judgment).


 


Exhibit A, Page 1









 





Each payment of principal, interest or other sum payable on or in respect of this Note or the
indebtedness evidenced hereby shall be made by the Borrower directly to the Agent in Dollars, for
the account of the Bank, at the Agent’s Head Office, on the due date of such payment, and in
immediately available and freely transferable funds. All payments on or in respect of this Note or
the indebtedness evidenced hereby shall be made without set-off or counterclaim and free and clear
of and without any deductions, withholdings, restrictions or conditions of any nature.



This Note is made and delivered by the Borrower to the Bank pursuant to that certain Third
Amended and Restated Revolving Credit Agreement dated as of June 16, 2011 among (i) the Borrower,
(ii) the Lenders party thereto from time to time (including the Bank) and (iii) the Agent (herein,
as originally executed and as may be amended, varied, supplemented, and/or restated from time to
time, called the “Revolving Credit Agreement”) and is in substitution of the [Second] [Amended and
Restated] Revolving Credit Note dated as of [December 29, 2009] [June 1, 2010] made by the Borrower
in favor of the Bank in the face amount of $                    . This Note evidences the obligations of the
Borrower (a) to repay the principal amount of the Bank’s Commitment Percentage of the Revolving
Credit Loans made by the Bank to the Borrower pursuant to the Revolving Credit Agreement; (b) to
pay interest, as herein provided, on the principal amount hereof remaining unpaid from time to
time; and (c) to pay other amounts (including all Obligations) which may become due and payable
hereunder or thereunder. The payment of the principal of and the interest on this Note and the
payment of all Obligations have been guaranteed. Reference is hereby made to the Revolving Credit
Agreement (including the Schedules and Exhibits annexed thereto and the Guaranty) for a complete
statement of the terms thereof.



The Borrower has the right to prepay the unpaid principal of this Note in full or in part upon
the terms contained in the Revolving Credit Agreement. The Borrower has an obligation to prepay
principal of this Note from time to time if and to the extent required under, and upon the terms
contained in, the Revolving Credit Agreement. Any partial payment of the indebtedness evidenced by
this Note shall be applied in accordance with the terms of the Revolving Credit Agreement.



Pursuant to and upon the terms contained in Section 14 of the Revolving Credit Agreement, the
entire unpaid principal of this Note, all of the interest accrued on the unpaid principal of this
Note and all (if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby may be declared to be immediately due and payable, whereupon the entire unpaid
principal of this Note, all of the interest accrued on the unpaid principal of this Note and all
(if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby
shall (if not already due and payable) forthwith become and be due and payable to the Bank without
presentment, demand, protest or any other formalities of any kind, all of which are hereby
expressly and irrevocably waived by the Borrower.


 


Exhibit A, Page 2









 





All computations of interest payable as provided in this Note shall be made by the Agent on
the basis set forth therefor in the Revolving Credit Agreement. The interest rate in effect from
time to time shall be determined in accordance with the terms of the Revolving Credit Agreement.



Should all or any part of the indebtedness represented by this Note be collected by action at
law, or in bankruptcy, insolvency, receivership or other court proceedings, or should this Note be
placed in the hands of attorneys for collection after default, the Borrower hereby promises to pay
to the holder of this Note, upon demand by the holder hereof at any time, in addition to principal,
interest and all (if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby, all court costs and attorneys’ fees and all other collection charges and expenses
reasonably incurred or sustained by the holder of this Note.



The Borrower hereby irrevocably waives notice of acceptance, presentment, notice of
nonpayment, protest, notice of protest, suit and all other conditions precedent in connection with
the delivery, acceptance, collection and/or enforcement of this Note. The Borrower hereby
absolutely and irrevocably consents and submits to the jurisdiction of the courts of the State of
New York and of any federal court located in the State of New York in connection with any actions
or proceedings brought against the Borrower by the holder hereof arising out of or relating to this
Note. This Note may be executed in any number of counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original, and all of which
together shall constitute one instrument.



This Note is intended to take effect as a sealed instrument. This Note and the obligations of
the Borrower hereunder shall be governed by and interpreted and determined in accordance with the
laws of the State of New York.



Each Borrower shall be jointly and severally liable for the full amount owing under this Note.



[Remainder of page intentionally left blank]



 


Exhibit A, Page 3









 





IN WITNESS WHEREOF, this [THIRD/SECOND] [AMENDED AND RESTATED] REVOLVING CREDIT NOTE
has been duly executed by the undersigned on the day and in the year first above written.



	 	 	 	 	 	 	 	 	 

	 	 	FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust,

its sole general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Barry H. Bass,
	 

	 	 	 	 	 	 	 	Chief Financial Officer and
	 

	 	 	 	 	 	 	 	Executive Vice President






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Signature Page to [Third/Second] [Amended and Restated] Revolving Credit Note

to [                                        ]


 


 









 





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Signature Page to [Third/Second] [Amended and Restated] Revolving Credit Note

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EXHIBIT A-1




SECOND AMENDED AND RESTATED SWINGLINE NOTE



			
	 	 	 
	$10,000,000
	 	Date: June 16, 2011






FOR VALUE RECEIVED, the undersigned First Potomac Realty Investment Limited Partnership, a
Delaware limited partnership and each of the other undersigned parties and other parties who are or
from time to time become a Borrower under (and as defined in) the Revolving Credit Agreement
referred to (and defined) below (hereinafter, together with their respective successors in title
and assigns, collectively called the “Borrower”), by this promissory note (hereinafter, called
“this Note”), absolutely and unconditionally, jointly and severally promises to pay to the order of
KeyBank National Association, individually in its capacity as a Lender under the Revolving Credit
Agreement (hereinafter, together with its successors in title and assigns, called the “Bank”), the
principal sum of Ten Million Dollars ($10,000,000), or so much thereof as shall have been advanced
by the Bank to the Borrower by way of Swingline Loans under (and as defined in) the Revolving
Credit Agreement and shall remain outstanding, such payment to be made as hereinafter provided, and
to pay interest on the principal sum outstanding hereunder from time to time from and after the
date hereof until the said principal sum or the unpaid portion thereof shall have become due and
payable as hereinafter provided.



Capitalized terms used herein without definition shall have the meanings set forth in the
Revolving Credit Agreement.



The unpaid principal (not at the time overdue) under this Note shall bear interest at the rate
or rates from time to time in effect under the Revolving Credit Agreement. Accrued interest on the
unpaid principal under this Note shall be payable on the dates specified in the Revolving Credit
Agreement.



On the maturity date of any particular Swingline Loan as provided in the Revolving Credit
Agreement, and in any event on the Maturity Date, there shall become absolutely due and payable by
the Borrower hereunder, and the Borrower hereby jointly and severally promises to pay to the Bank,
the balance (if any) of the principal hereof then remaining unpaid, all of the unpaid interest
accrued hereon and all (if any) other amounts payable on or in respect of this Note or the
indebtedness evidenced hereby.



Each overdue amount (whether of principal, interest or otherwise) payable hereunder shall (to
the extent permitted by applicable law) bear interest at the rates and on the terms provided in the
Revolving Credit Agreement. The unpaid interest accrued on each overdue amount in accordance with
the foregoing terms of this paragraph shall become and be absolutely due and payable by the
Borrower to Bank on demand by the Agent. Interest on each overdue amount will continue to accrue
as provided by the foregoing terms of this paragraph, and will (to the extent permitted by
applicable law) be
compounded daily until the obligations of the Borrower in respect of the payment of such overdue
amount shall be discharged (whether before or after judgment).


 


Exhibit A-1, Page 1









 





Each payment of principal, interest or other sum payable on or in respect of this Note or the
indebtedness evidenced hereby shall be made by the Borrower directly to the Agent in Dollars, for
the account of the Bank, at the Agent’s Head Office, on the due date of such payment, and in
immediately available and freely transferable funds. All payments on or in respect of this Note or
the indebtedness evidenced hereby shall be made without set-off or counterclaim and free and clear
of and without any deductions, withholdings, restrictions or conditions of any nature.



This Note is made and delivered by the Borrower to the Bank pursuant to that certain Third
Amended and Restated Revolving Credit Agreement dated as of June 16, 2011 among (i) the Borrower,
(ii) the Lenders party thereto from time to time (including the Bank) and (iii) the Agent (herein,
as originally executed and as may be amended, varied, supplemented, and/or restated from time to
time, called the “Revolving Credit Agreement”) and is in substitution of the Amended and Restated
Swingline Note dated as of December 29, 2009 made by one or more Borrowers in favor of the Bank in
the face amount of $10,000,000. This Note evidences the obligations of the Borrower (a) to repay
the principal amount of the Swingline Loans made by the Bank to the Borrower pursuant to the
Revolving Credit Agreement; (b) to pay interest, as herein provided, on the principal amount hereof
remaining unpaid from time to time; and (c) to pay other amounts which may become due and payable
hereunder or thereunder. The payment of the principal of and the interest on this Note and the
payment of all Obligations have been guaranteed. Reference is hereby made to the Revolving Credit
Agreement (including the Schedules and Exhibits annexed thereto and the Guaranty) for a complete
statement of the terms thereof.



The Borrower has the right to prepay the unpaid principal of this Note in full or in part upon
the terms contained in the Revolving Credit Agreement. The Borrower has an obligation to prepay
principal of this Note from time to time if and to the extent required under, and upon the terms
contained in, the Revolving Credit Agreement. Any partial payment of the indebtedness evidenced by
this Note shall be applied in accordance with the terms of the Revolving Credit Agreement.



Pursuant to and upon the terms contained in Section 14 of the Revolving Credit Agreement, the
entire unpaid principal of this Note, all of the interest accrued on the unpaid principal of this
Note and all (if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby may be declared to be immediately due and payable, whereupon the entire unpaid
principal of this Note, all of the interest accrued on the unpaid principal of this Note and all
(if any) other amounts payable on or in respect of this Note or the indebtedness evidenced hereby
shall (if not already due and payable) forthwith become and be due and payable to the Bank without
presentment, demand, protest or any other formalities of any kind, all of which are hereby
expressly and irrevocably waived by the Borrower.


 


Exhibit A-1, Page 2









 





All computations of interest payable as provided in this Note shall be made by the Agent on
the basis set forth therefor in the Revolving Credit Agreement. The interest rate in effect from
time to time shall be determined in accordance with the terms of the Revolving Credit Agreement.



Should all or any part of the indebtedness represented by this Note be collected by action at
law, or in bankruptcy, insolvency, receivership or other court proceedings, or should this Note be
placed in the hands of attorneys for collection after default, the Borrower hereby promises to pay
to the holder of this Note, upon demand by the holder hereof at any time, in addition to principal,
interest and all (if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby, all court costs and attorneys’ fees and all other collection charges and expenses
reasonably incurred or sustained by the holder of this Note.



The Borrower hereby irrevocably waives notice of acceptance, presentment, notice of
nonpayment, protest, notice of protest, suit and all other conditions precedent in connection with
the delivery, acceptance, collection and/or enforcement of this Note. The Borrower hereby
absolutely and irrevocably consents and submits to the jurisdiction of the courts of the State of
New York and of any federal court located in the State of New York in connection with any actions
or proceedings brought against the Borrower by the holder hereof arising out of or relating to this
Note. This Note may be executed in any number of counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an original, and all of which
together shall constitute one instrument.



This Note is intended to take effect as a sealed instrument. This Note and the obligations of
the Borrower hereunder shall be governed by and interpreted and determined in accordance with the
laws of the State of New York.



Each Borrower shall be jointly and severally liable for the full amount owing under this Note.



[Remainder of page intentionally left blank]



 


Exhibit A-1, Page 3









 





IN WITNESS WHEREOF, this AMENDED AND RESTATED SWINGLINE NOTE has been duly executed by the
undersigned on the day and in the year first above written.



	 	 	 	 	 	 	 	 	 

	 	 	FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust,

its sole general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Barry H. Bass,
	 

	 	 	 	 	 	 	 	Chief Financial Officer and
	 

	 	 	 	 	 	 	 	Executive Vice President






(Signatures continued on next page)




Signature Page to Second Amended and Restated Swingline Note


 


 









 





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Signature Page to Second Amended and Restated Swingline Note



 


 









 








EXHIBIT B




COMPLETED LOAN REQUEST



This Loan Request is made pursuant to §2.4 of the Third Amended and Restated Revolving Credit
Agreement dated as of June 16, 2011 (as the same may now or hereafter be amended from time to time,
the “Credit Agreement”) among First Potomac Realty Investment Limited Partnership and certain other
borrowers, First Potomac Realty Trust, KeyBank National Association, individually and as
Administrative Agent, Swingline Lender, and Fronting Bank and certain other parties. Unless
otherwise defined herein, the capitalized terms used in this Loan Request have the meanings
described in the Credit Agreement.



Each Loan Request submitted by the Borrower shall be a request for a single Loan or Letter of
Credit.




	1.	 	The Borrower hereby requests (check each applicable item):






	 	 	___New Revolving Credit Loan ($___________)
	 
	 	 	___Conversion of Existing Revolving Credit Loan ($___________)

       (Current Interest Period ending on ___________, 20_____)
	 
	 	 	___Continuation of Existing Revolving Credit Loan ($___________)

       (Current Interest Period ending on ___________, 20___)
	 
	 	 	___Letter of Credit
	 
	 	 	___Swingline Loan ($___________)






	2.	 	The Type of Loan being requested in this Loan Request (if any) is:






	 	 	___Base Rate Loan
	 
	 	 	___Libor Rate Loan






	3.	 	The aggregate principal amount of the Loan (whether by way of a new advance, continuation or
conversion) or the amount of the Letter of Credit requested in this Loan Request is:






$_____________


 


Exhibit B, Page 1









 






	4.	 	The proposed Drawdown Date of the Revolving Credit Loan, or the date of issue or renewal of
the Letter of Credit requested in this Loan Request is:






___________, 20_____




	5.	 	The Interest Period requested for the Loan requested in this Loan Request (if any) is:






________________through ________________(must be for 1, 2 or 3 months for Libor Loans).



The Borrower hereby certifies to Lender that, both before and after giving effect to the
making or issuance of the requested Revolving Credit Loan and/or Letter of Credit, (i) no Default
or Event of Default under the Credit Agreement or any other Loan Document exists or will exist, and
(ii) the Borrower is and will remain in compliance with Availability.



WITNESS my hand this _____day of ________________, 20_.



	 	 	 	 	 	 	 	 	 

	 	 	FIRST POTOMAC REALTY INVESTMENT
	 	 	LIMITED PARTNERSHIP, for itself and as agent for each
	 	 	other Borrower
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust,

its sole general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Barry H. Bass,
Chief Financial Officer and
Executive Vice President






 


Exhibit B, Page 2









 








EXHIBIT B-1




AVAILABILITY CERTIFICATE



Reference is hereby made to that certain Third Amended and Restated Revolving Credit Agreement
dated as of June 16, 2011 among First Potomac Realty Investment Limited (the “FPLP”) and certain
other borrowers (collectively, the “Borrower”), First Potomac Realty Trust (“Guarantor”), KeyBank
National Association, individually and as Administrative Agent, and certain other parties (as the
same may now or hereafter be amended from time to time, the “Credit Agreement”). Unless otherwise
defined herein, the terms used in this Availability Certificate and Schedule 1 hereto have
the meanings ascribed to such terms in the Credit Agreement.



The undersigned HEREBY CERTIFIES THAT:



I am the chief financial officer or accounting officer of the Borrower, and I am authorized by
each such entity to execute and deliver this Availability Certificate on its behalf.



All of the real property comprising “Eligible Unencumbered Properties” within the meaning of
Section 1.1 of the Credit Agreement is listed on Annex 1 to Schedule 1 attached hereto.



Schedule 1 hereto sets forth data and computations evidencing compliance with
Availability (including a calculation of the covenant set forth in §10.5 of the Credit Agreement on
a pro forma basis after giving effect to the requested Loan or Letter of Credit) and the amount
available to be drawn as of the proposed Drawdown Date, all of which data and computations are
true, complete and correct.



The activities of the Guarantor, the Borrower and their respective Subsidiaries during the
period covered by the data and computations set forth in Annex 1 and Annex 2 have
been reviewed by me and/or by employees or agents under my immediate supervision.



[Remainder of Page Intentionally Left Blank]



 


Exhibit B-1, Page 1









 





IN WITNESS WHEREOF, the undersigned has affixed his signature below this _____day of
                    , 20___.


	 	 	 	 	 	 	 	 	 

	 	 	FIRST POTOMAC REALTY INVESTMENT
	 	 	LIMITED PARTNERSHIP, for itself and as agent for each other Borrower
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust,

its sole general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Barry Bass, Senior Vice President and
	 

	 	 	 	 	 	 	 	Chief Financial Officer





 


Exhibit B-1, Page 2









 





SCHEDULE 1





	1.	 	Availability





As of the proposed Drawdown Date:




	 	 	 	 	 

	A. Value of Unencumbered Properties
(see Annex 1 for calculation of Value of Unencumbered Properties)
	 	$	                    	 
	 
	 	 	 	 
	B. 62.5% from the Closing Date and prior to 12/31/2011
60% from 12/31/2011 and thereafter
	 	$	                    	 
	 
	 	 	 	 
	C. Line (A) multiplied by Line (B)
	 	$	                    	 
	 
	 	 	 	 
	D. Unsecured Consolidated Total Indebtedness plus all New Debt,
less outstanding Loans and outstanding Letters of Credit
	 	$	                    	 
	 
	 	 	 	 
	E. Line (C) minus Line (D)
	 	$	                    	 
	 
	 	 	 	 
	F. Lesser of Total Commitment and Line (E)
	 	$	                    	 
	 
	 	 	 	 
	G. Outstanding Loans (including Swingline Loans)
	 	$	                    	 
	 
	 	 	 	 
	H. Maximum Drawing Amount under Letters of Credit
	 	$	                    	 
	 
	 	 	 	 
	2. Amount Available to be Drawn
	 	 	 	 
	 
	 	 	 	 
	A. Line 1(F) minus Line 1(G) minus Line 1(H)
	 	$	                    	 
	 
	 	 	 	 
	3. Requested Loan or other Credit Extension
	 	 	 	 
	 
	 	 	 	 
	Note: May not exceed Line 2(A)
	 	$	                    	 





 


Schedule 1 to Exhibit B-1, Page 1









 





Attachments to Schedule 1




	 	 	 

	Annex 1
	 	Value of Unencumbered Properties

	 	 	 

	Annex 2
	 	Unencumbered Pool Leverage (pro forma)








 


Schedule 1 to Exhibit B-1, Page 2









 








ANNEX 1




(Value of Unencumbered Properties)





 


Annex 1 to Schedule 1 to Exhibit B-1, Page 1









 








ANNEX 2




(Unencumbered Pool Leverage)





 


Annex 2 to Schedule 1 to Exhibit B-1, Page 1









 








EXHIBIT C (C-2, C-3)




COMPLIANCE CERTIFICATE



Reference is hereby made to that certain Third Amended and Restated Revolving Credit Agreement
dated as of June 16, 2011, among First Potomac Realty Investment Limited Partnership (the “FPLP”)
and certain other borrowers (collectively, the “Borrower”), First Potomac Realty Trust
(“Guarantor”), KeyBank National Association, individually and as Administrative Agent, and certain
other parties (as the same may now or hereafter be amended from time to time, the “Credit
Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate and
Schedule 1 hereto have the meanings ascribed to such terms in the Credit Agreement.



This Compliance Certificate is submitted pursuant to the following sections of the Credit
Agreement:




	 	 	___Section 8.4(e) (accompanying financial statements)
	 
	 	 	___Section 8.13(a)(ii) (in connection with removal of Eligible
Unencumbered Property)
	 
	 	 	___Section 8.13(c) (in connection with the addition of Real Estate
Asset to Unencumbered Pool)
	 
	 	 	___Section 9.4(a) (in connection with a merger or consolidation)
	 
	 	 	___Section 9.4(b) (in connection with Sales or Indebtedness Liens)
	 
	 	 	___Section 14.1 (in connection with default cure)





The undersigned HEREBY CERTIFIES THAT:



I am the chief financial officer or accounting officer of the Borrower, and I am authorized by
each such entity to execute and deliver this Compliance Certificate on its behalf.



All of the real property comprising “Eligible Unencumbered Properties” within the meaning of
Section 1.1 of the Credit Agreement is listed on Annex 1 to Schedule 1 attached hereto.
The status of each property listed on Annex 1 has been reviewed by me and/or by employees or agents
under my immediate supervision. Based upon such review, I hereby certify that each property listed
on Annex 1:




	 	(a)	 	is a Permitted Property;






	 	(b)	 	is free and clear of any Lien, other than Liens specifically
permitted to exist pursuant to Section 9.2 of the Credit Agreement;



 


Exhibit C, Page 1









 












	 	(c)	 	is not the subject of a Disqualifying Environmental Event or
Disqualifying Structural Event; and






	 	(d)	 	is wholly-owned in fee simple by the Borrower.





Accompanying this Compliance Certificate are consolidated financial statements of the
Guarantor, the Borrower and their respective Subsidiaries for the fiscal [year] [quarter] ended
_______ __ 20_____ (the “Financial Statements”) prepared in accordance with GAAP (subject, in the case
of financial statements relating to the first three fiscal quarters, to year-end adjustments none
of which will be materially adverse, and to the absence of footnotes). The Financial Statements
present fairly the financial position of the Guarantor, the Borrowers and their respective
Subsidiaries as of the date thereof and the results of operations of the Guarantor, the Borrowers
and their respective Subsidiaries for the period covered thereby. The foregoing is also delivered
herewith for FPLP on a consolidated basis.



Schedule 1 hereto sets forth data and computations evidencing compliance with
Availability (separate certificate attached) and with the covenants contained in Section 10 of the
Credit Agreement and certain other calculations (the “Financial Covenants; Covenants Regarding
Eligible Unencumbered Property”) as of the relevant date of determination (the “Determination
Date”), all of which data and computations are true, complete and correct.



The activities of the Guarantor, the Borrowers and their respective Subsidiaries during the
period covered by the data and computations set forth in Schedule 1 have been reviewed by
me and/or by employees or agents under my immediate supervision. Based upon such review, during
such period, and as of the date of this Certificate, no Default or Event of Default has occurred
and is continuing, except as specifically disclosed herein or as has been previously disclosed in
writing to the Administrative Agent.



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Exhibit C, Page 2









 








IN WITNESS WHEREOF, the undersigned has affixed his signature below this _____day of
                    , 20__.



	 	 	 	 	 	 	 	 	 

	 	 	FIRST POTOMAC REALTY INVESTMENT
	 	 	LIMITED PARTNERSHIP, for itself and as agent for each other Borrower
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust,

its sole general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Barry Bass, Senior Vice President and
	 

	 	 	 	 	 	 	 	Chief Financial Officer






Signature Page to Compliance Certificate


 


 









 





PRO FORMA UNSECURED LINE OF CREDIT COVENANTS




SCHEDULE 1



[See attached]



Annex 15 to Schedule 1 to Exhibit C



 


 









 





EXHIBIT D




ASSIGNMENT AND ASSUMPTION AGREEMENT



Dated                     , 20_____



Reference is made to the Third Amended and Restated Revolving Credit Agreement, dated as of
June 16, 2011 (as amended and in effect from time to time, the “Agreement”), among First Potomac
Realty Investment Limited Partnership (the “Borrower”), the banking institutions referred to
therein as Lenders (the “Lenders”), and KeyBank National Association, as agent (the “Agent”) for
the Lenders. Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Agreement.



                
                
         (the “Assignor”) and    
                 
(the “Assignee”) agree as follows:



1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, a _____% interest in and to all of the Assignor’s rights and
obligations under the Agreement as of the Effective Date (as hereinafter defined).



2. The Assignor (i) represents that as of the date hereof, its Commitment Percentage (without
giving effect to assignments thereof which have not yet become effective) is _____%, the outstanding
balance of its Loans (unreduced by any assignments thereof which have not yet become effective) is
$                    , the aggregate amount of its Letter of Credit Participations (unreduced by any
assignments thereof which have not yet become effective) is $                    , and the aggregate amount
of its participations in outstanding Swingline Loans is $                     (unreduced by any assignments
thereof which have not yet become effective); (ii) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations made in or in
connection with the Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is free and clear of any adverse claim
created by it; and (iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Trust, the Borrower or any of their respective
Subsidiaries (as defined in the Agreement) or any other person which may be primarily or
secondarily liable in respect of any of the Obligations under the Agreement or the other Loan
Documents or any other instrument or document delivered or executed pursuant thereto.


 


Exhibit D, Page 1









 





3. The Assignee (i) represents and warrants that it is legally authorized to enter into this
Assignment and Assumption; (ii) confirms that it has received a copy of
the Agreement, together with copies of the most recent financial statements delivered pursuant to
§§7.4 and 8.4 thereof, if any, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption; (iii) agrees that it will, independently and without reliance upon the Assignor, any
other Lender or the Agent and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking action under the
Agreement; (iv) confirms that it is an Eligible Assignee; (v) appoints and authorizes the Agent,
and each other Lender who may from time to time be designated as an agent in a limited specific
capacity pursuant to an amendment to the Agreement, to take such action as agent (and with respect
to such other Lenders, in such limited capacity as may be designated) on its behalf and to exercise
such powers as are reasonably incidental thereto pursuant to the terms of the Agreement and the
other Loan Documents; and (vi) agrees that it will perform all the obligations which by the terms
of the Agreement are required to be performed by it as a Lender in accordance with the terms of the
Agreement. The Assignor represents and warrants that it is legally authorized to enter into this
Assignment and Assumption.



4. The
effective date for this Assignment and Assumption shall be                     , 20_____ (the
“Effective Date”). Following the execution of this Assignment and Assumption, it will be delivered
to the Agent for recording in the Register by the Agent.



5. Upon such acceptance and recording, from and after the Effective Date, and, in accordance
with §20.1 of the Agreement, the Agent and the Borrower shall have approved the herein assignment
pursuant to §20.1 of the Agreement, and the Assignor shall, with respect to that portion of its
interest under the Agreement assigned hereunder, relinquish its rights and be released from its
obligations under the Agreement accruing from and after the Effective Date.



6. Upon such acceptance and recording, from and after the Effective Date, the Agent shall make
all payments in respect of the interest assigned hereby (including payments of principal, interest,
fees and other amounts) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to the Effective Date by the Agent or with respect to the
making of this assignment directly between themselves.



7. THIS ASSIGNMENT AND ASSUMPTION IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT TO BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



 


Exhibit D, Page 2









 








IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned has caused this
Assignment and Assumption to be executed on its behalf by its officer thereunto duly authorized, as
of the date first above written.



	 	 	 	 	 
	 	[INSERT ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title:  	 
	 
	 	[INSERT ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title:  	 



Signature Page to Assignment and Assumption




 


 









 







CONSENTED TO AS OF

                    , 20_____:




	 	 	 	 	 	 	 	 	 

	 	 	FIRST POTOMAC REALTY INVESTMENT LIMITED
	 	 	PARTNERSHIP,
for itself and as agent for each other Borrower
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By:	 	First Potomac Realty Trust,

its sole general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Barry Bass, Senior Vice President and
	 

	 	 	 	 	 	 	 	Chief Financial Officer
	 
	 	 	 	 	 	 	 	 
	 	 	KEYBANK NATIONAL ASSOCIATION,
	 	 	as Administrative Agent
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	Name:
	 	 	 	 	Title:






Signature Page to Assignment and Assumption




 


 









 








EXHIBIT E




JOINDER AGREEMENT

([ENTITY NAME])



[                    , 201_]




Reference is made to the Third Amended and Restated Revolving Credit Agreement, dated as of
June 16, 2011 (as from time to time amended and in effect, the “Loan Agreement”), among First
Potomac Realty Investment Limited Partnership, a Delaware limited partnership (“FPLP”) and each
other Borrower (collectively, the “Borrower”) which from time to time is a party to the Loan
Agreement, KeyBank National Association (“KeyBank”) and the other lending institutions referred to
in the Loan Agreement as Lenders (collectively, the “Lenders”), and KeyBank, as administrative
agent for itself and each other Lender (the “Agent”). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such in the Loan Agreement.



In consideration of and as an inducement to the inclusion by the Lenders of each of the Real
Estate Asset(s) identified on Exhibit A hereto as an Eligible Unencumbered Property
pursuant to the Loan Agreement, [                    ], a [                    ] (the “Additional
Borrower”), which is a Wholly-owned Subsidiary of FPLP, hereby acknowledges and agrees to the terms
and conditions of the Loan Agreement, the Revolving Credit Notes and the other Loan Documents to
which any Borrower is a party, joins in the agreements of the Borrower under the Loan Agreement,
the Revolving Credit Notes and the other Loan Documents to which any Borrower is a party and agrees
that all Obligations of the Borrower under the Loan Agreement, the Revolving Credit Notes and the
other Loan Documents to which any Borrower is a party shall be the obligations, jointly and
severally, of the Additional Borrower and the 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, the Revolving Credit Notes and the other Loan Documents to which any Borrower
is a party.



The Additional Borrower further agrees that its liability hereunder is direct and primary and
may be enforced by the Lenders and the Agent before or after proceeding against any other Borrower.


 


Exhibit E, Page 1









 





Prior to this Joinder Agreement becoming effective and each of the Real Estate Asset(s)
identified in Exhibit A hereto becoming an Eligible Unencumbered Property pursuant to the
Loan Agreement, the Additional Borrower shall have delivered to the Agent the documents and other
items required to be delivered pursuant to Section 8.13(c), 12.2, 12.3, 12.4, 12.5 (if requested by
the Agent) and 12.7 (except that government certifications may be short form unless the Agent
requests long form certifications) of the Loan Agreement, in each case in form and substance
satisfactory to the Agent, along with such other documents, certificates and instruments reasonably
required by the Agent, including, if necessary, updates to the schedules to the Loan Agreement
satisfactory to the Agent. Without in any way limiting the other rights of the Agent under the
Loan Agreement, but subject to Section 8.10(a) of the Loan Agreement, the Additional Borrower
agrees that the Agent shall have the right to visit and inspect such Eligible Unencumbered Property
at the Borrower’s sole cost and expense.



The undersigned represents and warrants to the Agent and the Lenders that it has the complete
right, power and authority to execute and deliver this Joinder Agreement and to perform all of the
obligations hereunder and the Obligations under the Loan Agreement, the Revolving Credit Notes and
the other Loan Documents to which any Borrower is a party. This Joinder Agreement shall be binding
upon the undersigned and its successors and assigns and shall inure to the benefit of the Lenders,
the Agent and their respective successors and assigns.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]





 


Exhibit E, Page 2









 








Executed as a sealed instrument as of the date first written above.



	 	 	 	 	 
	 	[                                        ],

a [                                        ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



Signature Page to Joinder Agreement




 


 









 





Acknowledged and Agreed:




FIRST POTOMAC REALTY INVESTMENT

LIMITED PARTNERSHIP, for itself and as

agent for each other Borrower




	 	 	 	 	 	 	 	 	 

	By:	 	First Potomac Realty Trust, its

sole general partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 	 





Signature Page to Joinder Agreement



 


 









 





Acknowledged:



KEYBANK NATIONAL ASSOCIATION,

as Administrative Agent




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

Name: Timothy Sylvain
	 	 
	 

	 	Title: Assistant Vice President	 	 






Signature Page to Joinder Agreement





 


 









 








Exhibit A to Joinder Agreement




[Eligible Unencumbered Property Address and Legal Description]



Exhibit A to Joinder Agreement, Page 1



 


 











 




EXHIBIT F




SUBSIDIARY GUARANTY





	To:	 	The Administrative Agent and each of the Lenders (collectively, the “Lenders”) which
from time to time is a party to the Third Amended and Restated Revolving Credit Agreement
dated as of June 16, 2011 (as the same may be amended, modified or restated and in effect from
time to time, the “Credit Agreement”) among First Potomac Realty Investment Limited
Partnership, a Delaware limited partnership (“FPLP”), and the other Borrowers from
time to time party thereto (FPLP, collectively with such Borrowers, hereinafter referred to as
the “Borrower”), KeyBank National Association, as a Lender and as Administrative Agent
for the Lenders (in such agent capacity, the “Agent”) and the other Lenders from time
to time party thereto. Capitalized terms used herein and not otherwise defined shall have the
same meanings as set forth in the Credit Agreement.






This SUBSIDIARY GUARANTY (“Guaranty”), dated as of June 16, 2011, is made by each of
the entities listed on Exhibit A attached hereto (individually and collectively, the
“Guarantor”) in favor of the Agent and the Lenders.



WHEREAS, the Borrower and the Guarantor are members of a group of related companies, the
success of any one of which is dependent in part on the success of the other members of such group;



WHEREAS, the Guarantor expects to receive substantial direct benefits from the extension of
credit to the Borrower by the Lenders pursuant to the Credit Agreement (which benefits are hereby
acknowledged);



WHEREAS, the Lenders and the Agent are unwilling to enter into the Credit Agreement and to
extend any credit thereunder unless the Guarantor shall execute and deliver to the Agent, for the
benefit of the Lenders and the Agent, a guarantee substantially in the form hereof; and



WHEREAS, the Guarantor wishes to guarantee the Borrower’s obligations to the Lenders and the
Agent under or in respect of the Credit Agreement as provided herein;


 


-1-









 





NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor hereby agrees as follows:



1. Guaranty of Payment and Performance of Obligations. In consideration of the
Lenders’ extending credit or otherwise in their discretion giving time, financial or banking
facilities or accommodations to the Borrower, each Guarantor hereby absolutely and unconditionally
guarantees to the Agent and each Lender that the Borrower will duly and punctually pay or perform,
at the place specified therefor, or if no place is specified, at the
Agent’s Head Office, (i) all Obligations (as defined in the Credit Agreement); and (ii) without
limitation of the foregoing, all fees, costs and expenses incurred by the Agent or the Lenders in
attempting to collect or enforce any of the foregoing, accrued in each case to the date of payment
hereunder (collectively, the “Obligations” and individually an “Obligation”). This
Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and
performance by the Borrower of the Obligations and not of their collectibility only and is in no
way conditioned upon any requirement that any Lender or the Agent first attempt to collect any of
the Obligations from the Borrower or resort to any security or other means of obtaining payment of
any of the Obligations which any Lender or the Agent now has or may acquire after the date hereof
or upon any other contingency whatsoever. Upon the occurrence and during the continuance of any
Event of Default under (or as defined in) the Credit Agreement, the liabilities and obligations of
the Guarantor hereunder shall, at the option of the Agent or the Majority Lenders, become forthwith
due and payable to the Agent and to the Lender or Lenders owed the same without demand or notice of
any nature, all of which are expressly waived by the Guarantor. Without limiting the foregoing, if
any obligations are or become due hereunder from a Guarantor at the time such Guarantor is or
becomes the subject of a proceeding under any Debtor Relief Law, such obligations shall be
immediately due and payable automatically and without any action on the part of the Agent or any of
the Lenders. Payments by the Guarantor hereunder may be required by any Lender or the Agent on any
number of occasions.



2. Guarantor’s Further Agreements to Pay. The Guarantor further agrees, as the
principal obligor and not as a guarantor only, to pay to each Lender and the Agent forthwith upon
demand, in funds immediately available to the Lender or the Agent, all costs and expenses
(including court costs and reasonable legal fees and expenses) of the type and/or nature described
in Section 17 of the Credit Agreement that are incurred or expended by the Agent or such Lender in
connection with this Guaranty and the enforcement hereof, together with interest on amounts
recoverable under this Guaranty from the time such amounts become due at a rate per annum equal to
two percent (2%) above the Base Rate plus the Applicable Base Rate Margin until such amounts shall
be paid in full (after as well as before judgment). In addition, the Guarantor shall pay a late
charge equal to five percent (5%) of any such costs and expenses which are not paid within fifteen
(15) days of the date of such demand.



3. Payments. The Guarantor covenants and agrees that the Obligations will be paid
strictly in accordance with their respective terms regardless of any law, regulation or order now
or hereinafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent
or any Lender with respect thereto. Without limiting the generality of the foregoing, the
Guarantor’s obligations hereunder with respect to any Obligation shall not be discharged by a
payment in a currency other than the currency in which the Obligation is denominated (the
“Obligation Currency”) or at a place other than the place specified for the payment of the
Obligation, whether pursuant to a judgment or otherwise, to the extent that the amount so paid on
conversion to the Obligation Currency and transferred to Cleveland,
Ohio, U.S.A., under normal banking procedures does not yield the amount of Obligation Currency due
thereunder.


 


-2-









 





4. Taxes. All payments hereunder shall be made without any counterclaim or set-off,
free and clear of, and without reduction by reason of, any taxes, levies, imposts, charges and
withholdings, restrictions or conditions of any nature (“Taxes”), which are now or may
hereafter be imposed, levied or assessed by any country, political subdivision or taxing authority
on payments hereunder, all of which will be for the account of and paid by the Guarantor. If for
any reason, any such reduction is made or any Taxes are paid by the Agent or any Lender (except for
taxes on income or profits of such Agent or Lender), Guarantor will pay to the Agent or such Lender
such additional amounts as may be necessary to ensure that the Agent or such Lender receives the
same net amount which it would have received had no reduction been made or Taxes paid.



5. Consent to Jurisdiction. The Guarantor agrees that any suit for the enforcement
of this Guaranty or any of the other Loan Documents may be brought in the courts of the States of
New York or Ohio or any federal court in the States of New York or Ohio and consents to the
non-exclusive jurisdiction of such court and the service of process in any such suit being made
upon the Guarantor by mail at the address specified in Section 15 hereof. The Guarantor hereby
waives any objection that it may now or hereafter have to the venue of any such suit or any such
court or that such suit is brought in an inconvenient court. In addition to the courts of the
States of New York or Ohio or any federal court sitting in the States of New York or Ohio, the
Agent or any Lender may bring action(s) for enforcement on a nonexclusive basis where any
collateral exists and the Guarantor consents to the non-exclusive jurisdiction of such court and
the service of process in any such suit being made upon the Guarantor by mail at the address
specified in Section 15 hereof. In any such action or proceeding, the Guarantor hereby absolutely
and irrevocably waives personal service of any summons, complaint, declaration or other process and
hereby absolutely and irrevocably agrees that the service thereof may be made by certified,
registered or recorded first-class airmail directed to the Guarantor. Anything hereinbefore to the
contrary notwithstanding, the Agent or any Lender may sue the Guarantor in the courts of any other
country, State of the United States or place where the Guarantor or any of the property or assets
of the Guarantor may be found or in any other appropriate jurisdictions.



6. Unlimited Liability of Guarantor. The liability of the Guarantor hereunder shall
be unlimited and, as to the Obligations of the Borrower, shall be joint and several with the
liability of each other party who has guaranteed or who will guarantee the Obligations of the
Borrower. The Agent and each Lender have and shall have the absolute right to enforce the
liability of the Guarantor hereunder without resort to any other right or remedy including any
right or remedy under any other guaranty, and the release or discharge of any guarantor of any
Obligations shall not affect the continuing liability of the Guarantor hereunder.


 


-3-









 





7. Effectiveness. The obligations of the Guarantor under this Guaranty shall
continue in full force and effect and shall remain in operation until all of the Obligations shall
have
been paid in full in cash (provided, that in the event the Credit Agreement and the Total
Commitment have each been terminated and all other Obligations have been paid in full in cash, then
with respect to the Letter of Credit Obligations only, Cash Collateral has been provided therefor
in accordance with the terms of the Credit Agreement), and continue to be effective or be
reinstated, as the case may be, if at any time payment or other satisfaction of any of the
Obligations is rescinded or must otherwise be restored or returned upon the bankruptcy, insolvency,
or reorganization of the Borrower, or otherwise, as though such payment had not been made or other
satisfaction occurred. Notwithstanding the foregoing, with respect to the obligations of any
Guarantor that has been released (i) pursuant to and in accordance with Section 8.21(b) of the
Credit Agreement or (ii) in connection with (and only upon the consummation of) a disposition of
the Equity Interests of such Guarantor in accordance with Section 9.4 of the Credit Agreement, this
Guaranty shall terminate with respect to such Guarantor only upon the effectiveness of such
release. No invalidity, irregularity or unenforceability by reason of applicable Debtor Relief
Laws, or any law or order of any government or agency thereof purporting to reduce, amend or
otherwise affect, the Obligations, shall impair, affect, be a defense to or claim against the
obligations of the Guarantor under this Guaranty. Notwithstanding any provision to the contrary
contained herein or in any other of the Loan Documents, the obligations guaranteed hereunder shall
be limited to an aggregate amount equal to the largest amount that would not render such
obligations subject to avoidance under the Debtor Relief Laws.



8. Freedom of Lenders and Agent to Deal with Borrower and Other Parties. The Agent
and each Lender shall be at liberty, without giving notice to or obtaining the assent of the
Guarantor and without relieving the Guarantor of any liability hereunder, to deal with the Borrower
and with each other party who now is or after the date hereof becomes liable in any manner for any
of the Obligations, in such manner as the Agent or such Lender in its sole discretion deems fit,
and to this end, without limiting the right of the Agent or such Lender to so deal with such party,
the Guarantor gives to the Agent and each Lender full authority in its sole discretion to do any or
all of the following things: (a) extend credit, make loans and afford other financial
accommodations to the Borrower at such times, in such amounts and on such terms as the Agent or
such Lender may approve, (b) vary the terms and grant extensions of any present or future
indebtedness or obligation of the Borrower or of any other party to the Agent or such Lender, (c)
grant time, waivers and other indulgences in respect thereto, (d) vary, exchange, release or
discharge, wholly or partially, or delay in or abstain from perfecting and enforcing any security
or guaranty or other means of obtaining payment of any of the Obligations which the Lender now has
or may acquire after the date hereof, (e) accept partial payments from the Borrower or any such
other party, (f) release or discharge, wholly or partially, any endorser or guarantor, and (g)
compromise or make any settlement or other arrangement with the Borrower or any such other party.


 


-4-









 





9. Unenforceability of Obligations Against Borrower; Invalidity of Security or Other
Guaranties. If for any reason any Borrower has no legal existence or is under no legal
obligation to discharge any of the Obligations undertaken or purported to be undertaken by it or on
its behalf, or if any of the moneys included in the Obligations have become
irrecoverable from the Borrower by operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantor to the same extent as if the Guarantor at all times had
been the principal debtor on all such Obligations. This Guaranty shall be in addition to any other
guaranty or other security for the Obligations, and it shall not be prejudiced or rendered
unenforceable by the invalidity of any such other guaranty or security.



10. Representation and Warranties. The Guarantor hereby makes, for itself and on
behalf of its Subsidiaries, the representations and warranties contained in Section 7 of the Credit
Agreement that relate to the Guarantor and/or its Subsidiaries (each, a “Representation and
Warranty,” and collectively, the “Representations and Warranties”) as if each such
Representation and Warranty were set forth fully herein, and such Representations and Warranties
are hereby incorporated by reference and shall survive until payment in full of all of the
Obligations.



11. Covenants. The Guarantor hereby covenants that it will, and will cause its
Subsidiaries to, comply with each of the covenants contained in Sections 8, 9 and 10 of the Credit
Agreement that relate to the Guarantor and its Subsidiaries (the “Covenants”) as if each
such Covenant were fully set forth herein, and such Covenants are incorporated by reference.
Except as otherwise permitted under the Credit Agreement, the Guarantor shall at all times be a
direct or indirect Subsidiary of FPLP or the Trust.



12. Representations True; Covenant Compliance; No Event of Default. Each of the
Representations and Warranties made by the Guarantor for itself and on behalf of its Subsidiaries
shall be true in all material respects as of the date as of which it was made
and shall also be true in all material respects at and as of the time of the making of each Loan
under the Credit Agreement or the issuance, extension or renewal of each Letter of Credit under the
Credit Agreement, with the same effect as if made at and as of that time (except to the extent that
such Representations and Warranties relate expressly to an earlier date).



13. Waivers by Guarantor. The Guarantor waives: notice of acceptance hereof, notice
of any action taken or omitted by the Agent or any Lender in reliance hereon, and any requirement
that the Agent or any Lender be diligent or prompt in making demands hereunder, giving notice of
any default by the Borrower or asserting any other rights of the Agent or any Lender hereunder.
The Guarantor also irrevocably waives, to the fullest extent permitted by law, all defenses that at
any time may be available in respect of the Guarantor’s obligations hereunder by virtue of any
statute of limitations, valuation, stay, moratorium law or other similar law now or hereafter in
effect.


 


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14. Waiver of Subrogation Rights. Notwithstanding any other provision to the
contrary contained herein or provided by applicable law and until such time as all Obligations have
been indefeasibly paid in full in cash to the Lenders (provided, that in the event the Credit
Agreement and the Total Commitment have each been terminated and all other Obligations have been
paid in full in cash, then with respect to the Letter of Credit
Obligations only, Cash Collateral has been provided therefor in accordance with the terms of the
Credit Agreement), the Guarantor hereby irrevocably waives any and all rights it may have at any
time (whether arising directly or indirectly, by operation of law or by contract) to assert any
claim against the Borrower on account of payments made under this Guaranty or otherwise, including,
without limitation, any and all rights of or claim for subrogation, contribution, reimbursement,
exoneration and indemnity, and further waives any benefit of and any right to participate in any
collateral which may be held by the Agent or any Lender or any affiliate of the Agent or any
Lender. Without limitation of the foregoing, in proceedings under applicable bankruptcy laws or
insolvency proceedings of any nature, the Guarantor will not prove in competition with the Agent or
any Lender in respect of any payment hereunder or be entitled to have the benefit of any
counterclaim or proof of claim or dividend or payment by or on behalf of the Borrower or the
benefit of any other security for any Obligation which, now or hereafter, the Agent or any Lender
may hold or in which it may have any share. In addition, the Guarantor will not claim any set-off
or counterclaim against the Borrower in respect of any liability it may have to the Borrower. The
payment of any amounts due with respect to any indebtedness of the Borrower now or hereafter held
by the Guarantor which arises as a result of the Guarantor’s payment of any sum recoverable
hereunder is hereby subordinated to the prior payment in full of the Obligations. The Guarantor
agrees that the Guarantor will not demand, sue for or otherwise attempt to collect any such
indebtedness of the Borrower to the Guarantor until the Obligations shall have been paid in full.
If, notwithstanding the foregoing sentence, the Guarantor shall collect, enforce or receive any
amounts in respect of such indebtedness, such amounts shall be collected, enforced and received by
the Guarantor as trustee for the Agent and the Lenders and be paid over to the Agent on account of
the Obligations without affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty.



15. Demands and Notices. Any demand on or notice to the Guarantor made or required
to be given pursuant to this Guaranty shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by overnight courier,
or sent by telegraph, telecopy, telefax or telex and confirmed by delivery via courier or postal
service, addressed as follows:



(a) if to the Guarantor, at First Potomac Realty Trust, 7600 Wisconsin Avenue, 11th
Floor, Bethesda, Maryland 20814 (facsimile: (301) 986-5554), Attention: Barry Bass, Chief
Financial Officer, with a copy to Gordon Wilson, Esq., Hogan Lovells US LLP, Columbia Square, 555
Thirteenth Street, NW, Washington, DC 20004 (facsimile: (202) 637-5910), or at such other address
for notice as the Guarantor shall last have furnished in writing to the person giving the notice;
and



(b) if to the Agent, to John Scott, Senior Banker, KeyBank National Association, 127 Public
Square, Cleveland, OH 44114 (facsimile: (216) 689-5819), or such other address for notice as the
Agent shall have last furnished in writing to the person giving the notice, with a copy to Pamela
M. MacKenzie, Esq., Goulston & Storrs, 400 Atlantic Avenue, Boston, Massachusetts 02110-3333
(facsimile: (617)-574-7615), or at
such other address for notice as the Agent shall last have furnished in writing to the person
giving the notice; and


 


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(c) if to any Lender, at such Lender’s address set forth on Schedule 2 to the Credit
Agreement, or such other address for notice as such Lender shall have last furnished in writing to
the Person giving the notice.



Any such notice or demand shall be deemed to have been duly given or made and to have become
effective (i) if delivered by hand, overnight courier or facsimile to the party to which it is
directed, at the time of the receipt thereof by such party or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on the third Business
Day following the mailing thereof.



16. Amendments, Waivers, Etc. No provision of this Guaranty can be changed, waived,
discharged or terminated except by an instrument in writing signed by the Agent and the Guarantor
expressly referring to the provision of this Guaranty to which such instrument relates; and no such
waiver shall extend to, affect or impair any right with respect to any Obligation which is not
expressly dealt with therein. No course of dealing or delay or omission on the part of the Agent
or the Lenders or any of them in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto.



17. Set-off. Regardless of the adequacy of any collateral or other means of obtaining
repayment of the Obligations, each Lender and the Agent may at any time and without notice to the
Guarantor set off the whole or any portion or portions of any or all such deposits and other sums
credited by or due from such Lender or the Agent to the Guarantor or subject to withdrawal by the
Guarantor against amounts payable under this Guaranty, whether or not any other person or persons
could also withdraw money therefrom. Any deposits or other sums which may at any time be credited
to the Guarantor by or due to it from any Lender may at any time be applied to or set off by such
Lender against the Guarantor’s obligations hereunder. The Guarantor irrevocably invites each
financing institution which may consider becoming a Lender to rely on the provisions contained in
this Section 17 as making the Lender a creditor of the Guarantor and agrees that its becoming a
Lender shall constitute an acceptance of the offer hereby made.



18. Agent; Application of Funds. This Guaranty has been delivered to the Agent and
the Agent has been authorized to enforce this Guaranty on behalf of each of the Lenders pursuant to
the Loan Documents. All payments by the undersigned pursuant to this Guaranty shall be made to the
Agent for the ratable benefit of the Lenders and the Agent and, after the payment of all expenses
as provided in this Guaranty, shall be applied to the payment of the Obligations until the same are
paid in full.



19. Further Assurances. The Guarantor at its sole cost and expense agrees to do all
such things and execute, acknowledge and deliver all such documents and instruments as the Agent
from time to time may reasonably request in order to give full effect to this
Guaranty and to perfect and preserve the rights and powers of the Agent and the Lenders
hereunder.


 


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20. Miscellaneous Provisions. This Guaranty is intended to take effect as a sealed
instrument to be governed by and construed in accordance with the laws of the State of New York and
shall inure to the benefit of the Agent, each Lender and its respective successors in title and
assigns, and shall be binding on the Guarantor and the Guarantor’s successors in title, assigns and
legal representatives. The rights and remedies herein provided are cumulative and not exclusive of
any remedies provided by law or any other agreement. The invalidity or unenforceability of any one
or more sections of this Guaranty shall not affect the validity or enforceability of its remaining
provisions. Captions are for ease of reference only and shall not affect the meaning of the
relevant provisions. The meanings of all defined terms used in this Guaranty shall be equally
applicable to the singular and plural forms of the terms defined.



21. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY WAIVES TRIAL BY JURY IN
ANY JURISDICTION AND IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS
GUARANTY, THE OBLIGATIONS, THE LOAN DOCUMENTS, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED
PURSUANT HERETO OR THERETO OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER ARISING, AMONG THE GUARANTOR,
THE BORROWER, THE AGENT AND/OR THE LENDERS. THIS WAIVER OF JURY TRIAL SHALL BE EFFECTIVE FOR EACH
AND EVERY DOCUMENT EXECUTED BY THE GUARANTOR, THE AGENT OR THE LENDERS AND DELIVERED TO THE AGENT
OR THE LENDERS, AS THE CASE MAY BE, WHETHER OR NOT SUCH DOCUMENTS SHALL CONTAIN SUCH A WAIVER OF
JURY TRIAL. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THE GUARANTOR HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. THE GUARANTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT
THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS
CONTAINED HEREIN. THE GUARANTOR CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.



(Signatures on following page)



 


-8-









 




IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the date first written
above.




	 	 	 	 	 	 	 	 	 
	 	 	FP REDLAND GP, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Redland, LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP REDLAND, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP AIRPARK AB, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 




(Signatures continued on next page)




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	 	 	FP 535 INDEPENDENCE PARKWAY, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP CANDLEWOOD, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP CHESTERFIELD ABEF, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 





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	 	 	FP CHESTERFIELD CDGH, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP CLOVERLEAF, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Cloverleaf Investor, LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP HANOVER C, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 





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	 	 	FP HANOVER D, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	FP PROSPERITY, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	AQUIA ONE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 






(Signatures continued on next page)




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	 	 	FP GATEWAY CENTER, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	GLENN DALE BUSINESS CENTER, L.L.C.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	AP INDIAN CREEK, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Indian Creek, LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 






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	 	 	INDIAN CREEK INVESTORS, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	FP Indian Creek, LLC	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	NORFOLK COMMERCE PARK LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	WINDSOR AT BATTLEFIELD, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Investment Limited Partnership	 	 
	 	 	 	 	Its Sole Member	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	First Potomac Realty Trust	 	 
	 	 	 	 	Its General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Barry H. Bass	 	 
	 

	 	 	 	Title:
	 	Executive Vice President and Chief Financial Officer	 	 






(Signatures continued on next page)




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EXHIBIT A




GUARANTORS




	1.	 	FP Redland GP, LLC, a Delaware limited liability company







	2.	 	FP Redland, LLC, a Delaware limited liability company







	3.	 	FP Airpark AB, LLC, a Virginia limited liability company







	4.	 	FP 535 Independence Parkway, LLC, a Virginia limited liability company







	5.	 	FP Candlewood, LLC, a Maryland limited liability company







	6.	 	FP Chesterfield ABEF, LLC, a Virginia limited liability company







	7.	 	FP Chesterfield CDGH, LLC, a Virginia limited liability company







	8.	 	FP Cloverleaf, LLC, a Maryland limited liability company







	9.	 	FP Hanover C, LLC, a Virginia limited liability company







	10.	 	FP Hanover D, LLC, a Virginia limited liability company







	11.	 	FP Prosperity, LLC, a Virginia limited liability company







	12.	 	Aquia One, LLC, a Delaware limited liability company







	13.	 	FP Gateway Center, LLC, a Maryland limited liability company







	14.	 	Glenn Dale Business Center, L.L.C., a Maryland limited liability company







	15.	 	AP Indian Creek, LLC, a Delaware limited liability company







	16.	 	Indian Creek Investors, LLC, a Maryland limited liability company







	17.	 	Norfolk Commerce Park LLC, a Delaware limited liability company







	18.	 	Windsor at Battlefield, LLC, a Delaware limited liability company






Exhibit A, page 1




 















 





Schedule 1




Borrowers



1400 Cavalier, LLC

1441 Crossways Blvd., LLC

4212 Techcourt, LLC

Airpark Place, LLC

Aquia Two, LLC

Crossways II LLC

Enterprise Center I, LLC

FP 1211 Connecticut Avenue, LLC

FP 1408 Stephanie Way, LLC

FP 2550 Ellsmere Avenue, LLC

FP 3 Flint Hill, LLC

FP 440 1st Street, LLC

FP 500 & 600 HP Way, LLC

FP Ammendale Commerce Center, LLC

FP Ashburn, LLC

FP Atlantic Corporate Park, LLC

FP Campostella Road, LLC

FP Cronridge Drive, LLC

FP Davis Drive Lot 5, LLC

FP Diamond Hill, LLC

FP Gateway 270, LLC

FP Gateway West II, LLC

FP Girard Business Center, LLC

FP Girard Place, LLC

FP Goldenrod Lane, LLC

FP Greenbrier Circle, LLC

FP Hanover AB, LLC

FP Park Central I, LLC

FP Park Central II, LLC

FP Park Central V, LLC

FP Patrick Center, LLC

FP Pine Glen, LLC

FP Properties, LLC



 


 









 





FP Redland Technology Center LP

FP Rivers Bend, LLC

FP Sterling Park I, LLC

FP Sterling Park 6, LLC

FP Sterling Park 7, LLC

FP Sterling Park Land, LLC

FP Triangle, LLC

FP West Park, LLC

FPR Holdings Limited Partnership

Gateway Hampton Roads, LLC

Gateway Manassas II, LLC

GTC I Second LLC

Herndon Corporate Center, LLC

Interstate Plaza Holding LLC

Linden II, LLC

Lucas Way Hampton, LLC

Reston Business Campus, LLC

Techcourt, LLC

Virginia Center, LLC



 


 









 








Schedule 2




Lender’s Commitments



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Commitment	 
	Lender	 	Commitment	 	 	Percentage*	 
	KeyBank National Association
	 	$	50,000,000	 	 	 	19.6078431373	%
	
Contact:

John C. Scott

127 Public Square, 8th Floor

Cleveland, OH 44114

Phone: (216) 689-5986

Fax: (216) 689-4997

email: john_c_scott@keybank.com
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Wells Fargo Bank National Association
	 	$	50,000,000	 	 	 	19.6078431373	%
	
Contact:

Alexis McGuire

1750 H Street, NW, Suite 400

Washington, DC 20006

Phone: (612) 316-0210

Fax: (866) 494-9607

email: alexis.l.mcguire@wellsfargo.com
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Bank of Montreal
	 	$	50,000,000	 	 	 	19.6078431373	%
	
Contact:

Aaron Lanski

115 South LaSalle Street, 18th Floor West

Chicago, IL 60603

Phone: (312) 461-6364

Fax: (312) 461-2968

email: aaron.lanski@bmo.com
	 	 	 	 	 	 	 	 






 


 









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Commitment	 
	Lender	 	Commitment	 	 	Percentage*	 
	PNC Bank, National Association
	 	$	40,000,000	 	 	 	15.6862745098	%
	
Contact:

Kathleen Lorenzato

808 17th Street, NW

Washington, DC 20006

Phone: (412) 768-2669

Fax: (412) 768-5754

email: kathleen.lorenzato@pnc.com
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	U.S. Bank National Association
	 	$	40,000,000	 	 	 	15.6862745098	%
	
Contact:

Gary Houston

U.S. Bank National Association

1650 Tysons Boulevard, Suite 250

McLean, VA 22102

Phone: (703) 442-1393

Fax: (703) 442-5495

email: gary.houston@usbank.com
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Capital One, N.A.
	 	$	25,000,000	 	 	 	9.8039215686	%
	
Contact:

Mary Davis

7501 Wisconsin Avenue, 12th Floor

Bethesda, MD 20814

Phone: (301) 939-6951

Fax: (301) 939-6959

email: mdavis@chevychase.net

email copy to : lmmjackson@chevychase.net
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total:
	 	$	255,000,000	 	 	 	100.0	%









	 	 	 
	*	 	Percentages are rounded to ten decimal places for the purposes of Schedule 2.



 


 









 










Schedule 5.6




Existing Letters of Credit



NONE.



 


 









 








Schedule 7.1(b)




Capitalization



	 	 	 	 	 	 	 
	 	 	 	 	Preferred	 	Restrictions
	 	 	 	 	Equity and	 	or other
	 	 	 	 	any related	 	Agreements
	Borrower	 	Ownership Interest	 	documents	 	or Interests
	First Potomac Realty Trust

	 	Common stock shares
listed on New York
Stock Exchange
	 	7.75% Series A
Cumulative
Redeemable
Perpetual Preferred
Shares
	 	N/A
	 
	 	 	 	 	 	 
	First Potomac Realty Investment
Limited Partnership

	 	First Potomac
Realty Trust —
aggregate general
partnership and
limited partnership
interests in excess
of 95%; other
limited partners as
listed on attached
Exhibit A
	 	None
	 	None
	 
	 	 	 	 	 	 
	1400 Cavalier, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	1441 Crossways Blvd., LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	4212 Techcourt, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Airpark Place, LLC

	 	Airpark Place
Holdings, LLC —
100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Aquia Two, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Crossways II LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None





 


 









 






	 	 	 	 	 	 	 
	 	 	 	 	Preferred	 	Restrictions
	 	 	 	 	Equity and	 	or other
	 	 	 	 	any related	 	Agreements
	Borrower	 	Ownership Interest	 	documents	 	or Interests
	Enterprise Center I, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP 1211 Connecticut Avenue, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP 1408 Stephanie Way, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP 2550 Ellsmere Avenue, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP 3 Flint Hill, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP 440 1st Street, LLC

	 	First Potomac DC
Holdings, LLC —
99.9% limited
liability company
interest; First
Potomac TRS
Holdings, Inc. —
0.1% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP 500 & 600 HP Way, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Ammendale Commerce Center,LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Ashburn, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Atlantic Corporate Park, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Campostella Road, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Cronridge Drive, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None





 


 









 






	 	 	 	 	 	 	 
	 	 	 	 	Preferred	 	Restrictions
	 	 	 	 	Equity and	 	or other
	 	 	 	 	any related	 	Agreements
	Borrower	 	Ownership Interest	 	documents	 	or Interests
	FP Davis Drive Lot 5, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Diamond Hill, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Gateway 270, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Gateway West II, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Girard Business Center, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Girard Place, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Goldenrod Lane, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Greenbrier Circle, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Hanover AB, LLC

	 	FPR Holdings
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Park Central I, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Park Central II, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Park Central V, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None





 


 









 






	 	 	 	 	 	 	 
	 	 	 	 	Preferred	 	Restrictions
	 	 	 	 	Equity and	 	or other
	 	 	 	 	any related	 	Agreements
	Borrower	 	Ownership Interest	 	documents	 	or Interests
	FP Patrick Center, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Pine Glen, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Properties, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Redland Technology Center LP

	 	FP Redland, LLC —
90% limited
partnership
interest
Perseus Redland
Investments LLC —
10% limited
partnership
interest
	 	FP Redland, LLC — 100% of the 6.5%
to 8.5% cumulative
preferred limited
partnership
interest in the
principal amount of
$74,500,000
	 	Amended and
Restated Limited
Partnership
Agreement of FP
Redland Technology
Center LP, dated
November 10, 2010
	 
	 	 	 	 	 	 
	FP Rivers Bend, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Sterling Park I, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Sterling Park 6, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Sterling Park 7, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Sterling Park Land, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FP Triangle, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None





 


 









 






	 	 	 	 	 	 	 
	 	 	 	 	Preferred	 	Restrictions
	 	 	 	 	Equity and	 	or other
	 	 	 	 	any related	 	Agreements
	Borrower	 	Ownership Interest	 	documents	 	or Interests
	FP West Park, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	FPR Holdings Limited Partnership

	 	First Potomac
Realty Investment
Limited Partnership
— 99% limited
partnership
interest
FPR General Partner
— 1% limited
partnership
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Gateway Hampton Roads, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Gateway Manassas II, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	GTC I Second LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Herndon Corporate Center, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Interstate Plaza Holding LLC

	 	Interstate Plaza
Operating LLC —
100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Linden II, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Lucas Way Hampton, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Reston Business Campus, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Techcourt, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None
	 
	 	 	 	 	 	 
	Virginia Center, LLC

	 	First Potomac
Realty Investment
Limited Partnership
— 100% limited
liability company
interest
	 	None
	 	None





 


 









 






Schedule 7.3(c)




Partially-Owned Entities



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	% Interest	 	 	Capacity in	 	Borrower’s
	 	 	Owned by	 	 	which Borrower	 	ownership
	Name and Type of Entity	 	Borrower	 	 	holds the interest	 	interest therein
	 
	 	 	 	 	 	 	 	 
	FP CPT 1750 Holdings, LLC
	 	 	50	%	 	Operating Member	 	Direct
	VIF/FP Aviation Blvd
Holdings, LLC
	 	 	50	%	 	Operating Member	 	Direct
	FP VIF I/ Rivers Park I, LLC
	 	 	25	%	 	Operating Member	 	Direct
	FP VIF II/ Rivers Park II,
LLC
	 	 	25	%	 	Operating Member	 	Direct





 


 









 






Schedule 7.7




Litigation



NONE.



 


 









 








Schedule 7.13




Legal Name; Jurisdiction



First Potomac Realty Trust, a Maryland real estate investment trust

First Potomac Realty Investment Limited Partnership, a Delaware limited partnership

1400 Cavalier, LLC, a Delaware limited liability company

1441 Crossways Blvd., LLC, a Virginia limited liability company

4212 Techcourt, LLC, a Virginia limited liability company

Airpark Place, LLC, a Delaware limited liability company

Aquia Two, LLC, a Delaware limited liability company

Crossways II LLC, a Delaware limited liability company

Enterprise Center I, LLC, a Delaware limited liability company

FP 1211 Connecticut Avenue, LLC, a Delaware limited liability company

FP 1408 Stephanie Way, LLC, a Virginia limited liability company

FP 2550 Ellsmere Avenue, LLC, a Virginia limited liability company

FP 3 Flint Hill, LLC, a Virginia limited liability company

FP 440 1st Street, LLC, a Delaware limited liability company

FP 500 & 600 HP Way, LLC, a Virginia limited liability company

FP Ammendale Commerce Center, LLC, a Maryland limited liability company

FP Ashburn, LLC, a Virginia limited liability company

FP Atlantic Corporate Park, LLC, a Virginia limited liability company

FP Campostella Road, LLC, a Delaware limited liability company

FP Cronridge Drive, LLC, a Maryland limited liability company

FP Davis Drive Lot 5, LLC, a Virginia limited liability company

FP Diamond Hill, LLC, a Delaware limited liability company

FP Gateway 270, LLC, a New Jersey limited liability company

FP Gateway West II, LLC, a Maryland limited liability company

FP Girard Business Center, LLC, a Maryland limited liability company

FP Girard Place, LLC, a Maryland limited liability company

FP Goldenrod Lane, LLC, a Maryland limited liability company

FP Greenbrier Circle, LLC, a Virginia limited liability company

FP Hanover AB, LLC, a Virginia limited liability company

FP Park Central I, LLC, a Virginia limited liability company

FP Park Central II, LLC, a Virginia limited liability company

FP Park Central V, LLC, a Virginia limited liability company

FP Patrick Center, LLC, a Maryland limited liability company

FP Pine Glen, LLC, a Virginia limited liability company

FP Properties, LLC, a Delaware limited liability company

FP Redland Technology Center LP, a Delaware limited partnership

FP Rivers Bend, LLC, a Virginia limited liability company

FP Sterling Park I, LLC, a Virginia limited liability company

FP Sterling Park 6, LLC, a Virginia limited liability company

FP Sterling Park 7, LLC, a Virginia limited liability company

FP Sterling Park Land, LLC, a Virginia limited liability company

FP Triangle, LLC, a Maryland limited liability company

FP West Park, LLC, a Maryland limited liability company

FPR Holdings Limited Partnership, a Delaware limited partnership

Gateway Hampton Roads, LLC, a Virginia limited liability company



 


 









 





Gateway Manassas II, LLC, a Delaware limited liability company

GTC I Second LLC, a Virginia limited liability company

Herndon Corporate Center, LLC, a Delaware limited liability company

Interstate Plaza Holding LLC, a Delaware limited liability company

Linden II, LLC, a Delaware limited liability company

Lucas Way Hampton, LLC, a Virginia limited liability company

Reston Business Campus, LLC, a Delaware limited liability company

Techcourt, LLC, a Virginia limited liability company

Virginia Center, LLC, a Delaware limited liability company



 


 









 








Schedule 7.15




Affiliate Transactions



NONE.


 


 









 





Schedule 7.16




Employee Benefit Plans



Retirement Savings Plan under Section 401(k) of the Internal Revenue Code, as more fully described
in the SEC Filings.



 


 









 





Schedule 7.19




Subsidiaries



	 	 	 	 	 
	NAME OF ENTITY	 	TAX ID/EIN	 
	1328 CAVALIER, LLC
	 	 	52-2057842	 
	1400 CAVALIER, LLC
	 	 	52-2057842	 
	1434 CROSSWAYS BOULEVARD I, LLC
	 	 	52-2057842	 
	1434 CROSSWAYS BOULEVARD II, LLC
	 	 	52-2057842	 
	1441 CROSSWAYS BLVD., LLC
	 	 	52-2057842	 
	15395 JOHN MARSHALL HIGHWAY, LLC
	 	 	52-2057842	 
	351 PATRICK STREET, LLC
	 	 	52-2057842	 
	403 & 405 GLENN DRIVE MANAGER, LLC
	 	 	52-2057842	 
	403 & 405 GLENN DRIVE, LLC
	 	 	52-2057842	 
	4212 TECHCOURT, LLC
	 	 	52-2057842	 
	ACP EAST LLC
	 	 	52-2057842	 
	ACP EAST FINANCE, LLC
	 	 	52-2057842	 
	AIRPARK PLACE HOLDINGS, LLC
	 	 	52-2057842	 
	AIRPARK PLACE, LLC
	 	 	52-2057842	 
	AP INDIAN CREEK, LLC
	 	 	52-2057842	 
	AQUIA ONE, LLC
	 	 	52-2057842	 
	AQUIA TWO, LLC
	 	 	52-2057842	 
	BREN MAR HOLDINGS, LLC
	 	 	52-2057842	 
	BREN MAR, LLC
	 	 	52-2057842	 
	COLUMBIA HOLDING ASSOCIATES LLC
	 	 	52-2057842	 
	CROSSWAYS ASSOCIATES LLC
	 	 	52-2057842	 
	CROSSWAYS II LLC
	 	 	52-2057842	 
	CROSSWAYS LAND, LLC
	 	 	52-2057842	 
	ENTERPRISE CENTER I, LLC
	 	 	52-2057842	 
	ENTERPRISE CENTER MANAGER, LLC
	 	 	52-2057842	 
	EON GROUP, LLC
	 	 	26-1847361	 
	EON GROUP, LTD
	 	 	98-0591583	 
	FIRST POTOMAC DC 500 MANAGEMENT LLC
	 	 	27-3075158	 
	FIRST POTOMAC DC HOLDINGS, LLC
	 	 	27-3075027	 
	FIRST POTOMAC DC MANAGEMENT LLC
	 	 	27-4110098	 
	FIRST POTOMAC MANAGEMENT LLC
	 	 	52-2057842	 
	FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP
	 	 	52-2057842	 
	FIRST POTOMAC REALTY TRUST
	 	 	37-1470730	 
	FIRST POTOMAC TRS HOLDINGS, INC.
	 	 	20-4033770	 
	FIRST RUMSEY LLC
	 	 	52-2057842	 
	FIRST SNOWDEN LLC
	 	 	52-2057842	 
	FP 1211 CONNECTICUT AVENUE, LLC
	 	 	27-4080392	 
	FP 1408 STEPHANIE WAY, LLC
	 	 	52-2057842	 
	FP 2550 ELLSMERE AVENUE, LLC
	 	 	52-2057842	 
	FP 3 FLINT HILL, LLC
	 	 	52-2057842	 
	FP 440 1st STREET, LLC
	 	 	27-4273427	 
	FP 51 LOUSIANA AVENUE, LLC
	 	 	54-1631747	 
	FP 500 & 600 HP WAY, LLC
	 	 	52-2057842	 





 


 









 






	 	 	 	 	 
	NAME OF ENTITY	 	TAX ID/EIN	 
	FP 500 FIRST STREET REIT GP, LLC
	 	 	27-3075347	 
	FP 500 FIRST STREET, LLC
	 	 	26-2553938	 
	FP 535 INDEPENDENCE PARKWAY, LLC
	 	 	52-2057842	 
	FP 601 MEADOWVILLE RD, LLC
	 	 	52-2057842	 
	FP 6310 HILLSIDE CENTER, LLC
	 	 	52-2057842	 
	FP 6315 HILLSIDE CENTER, LLC
	 	 	52-2057842	 
	FP 7501 WHITEPINE ROAD, LLC
	 	 	52-2057842	 
	FP 840 FIRST STREET, LLC
	 	 	27-4330837	 
	FP 950 F STREET, LLC
	 	 	27-4281956	 
	FP AIRPARK AB, LLC
	 	 	52-2057842	 
	FP AMMENDALE COMMERCE CENTER,LLC
	 	 	52-2057842	 
	FP ASHBURN, LLC
	 	 	52-2057842	 
	FP ATLANTIC CORPORATE PARK, LLC
	 	 	52-2057842	 
	FP CAMPOSTELLA ROAD, LLC
	 	 	52-2057842	 
	FP CANDLEWOOD, LLC
	 	 	52-2057842	 
	FP CANDLEWOOD BORROWER, LLC
	 	 	52-2057842	 
	FP CHESTERFIELD ABEF, LLC
	 	 	52-2057842	 
	FP CHESTERFIELD CDGH, LLC
	 	 	52-2057842	 
	FP CLOVERLEAF INVESTOR, LLC
	 	 	52-2057842	 
	FP CLOVERLEAF, LLC
	 	 	52-2057842	 
	FP CRONRIDGE DRIVE, LLC
	 	 	52-2057842	 
	FP DAVIS DRIVE LOT 5, LLC
	 	 	52-2057842	 
	FP DIAMOND HILL, LLC
	 	 	52-2057842	 
	FP GALLOWS ROAD, LLC
	 	 	52-2057842	 
	FP GATEWAY 270, LLC
	 	 	52-2057842	 
	FP GATEWAY CENTER, LLC
	 	 	52-2057842	 
	FP GATEWAY WEST II, LLC
	 	 	52-2057842	 
	FP GIRARD BUSINESS CENTER, LLC
	 	 	52-2057842	 
	FP GIRARD PLACE, LLC
	 	 	52-2057842	 
	FP GOLDENROD LANE, LLC
	 	 	52-2057842	 
	FP GREENBRIER CIRCLE, LLC
	 	 	52-2057842	 
	FP GUDE MANAGER, LLC
	 	 	52-2057842	 
	FP GUDE, LLC
	 	 	52-2057842	 
	FP HANOVER AB, LLC
	 	 	52-2057842	 
	FP HANOVER C, LLC
	 	 	52-2057842	 
	FP HANOVER D, LLC
	 	 	52-2057842	 
	FP INDIAN CREEK, LLC
	 	 	52-2057842	 
	FP METRO PLACE, LLC
	 	 	52-2057842	 
	FP NAVISTAR INVESTORS, LLC
	 	 	52-2057842	 
	FP NAVISTAR MANAGER, LLC
	 	 	52-2057842	 
	FP NORTHRIDGE, LLC
	 	 	52-2057842	 
	FP ONE FAIR OAKS, LLC
	 	 	52-2057842	 
	FP PARK CENTRAL I, LLC
	 	 	52-2057842	 
	FP PARK CENTRAL II, LLC
	 	 	52-2057842	 
	FP PARK CENTRAL V, LLC
	 	 	52-2057842	 
	FP PATRICK CENTER, LLC
	 	 	52-2057842	 
	FP PATUXENT PARKWAY, LLC
	 	 	52-2057842	 
	FP PINE GLEN, LLC
	 	 	52-2057842	 
	FP PROPERTIES II, LLC
	 	 	91-1893498	 
	FP PROPERTIES, LLC
	 	 	84-1417951	 





 


 









 






	 	 	 	 	 
	NAME OF ENTITY	 	TAX ID/EIN	 
	FP PROSPERITY, LLC
	 	 	52-2057842	 
	FP REALTY INVESTMENT MANAGER, LLC
	 	 	52-2057842	 
	FP RIVER’S BEND LAND, LLC
	 	 	52-2057842	 
	FP RIVERS BEND, LLC
	 	 	52-2057842	 
	FP STERLING PARK 6, LLC
	 	 	52-2057842	 
	FP STERLING PARK 7, LLC
	 	 	52-2057842	 
	FP STERLING PARK I, LLC
	 	 	52-2057842	 
	FP STERLING PARK LAND, LLC
	 	 	52-2057842	 
	FP TRIANGLE, LLC
	 	 	52-2057842	 
	FP VAN BUREN, LLC
	 	 	52-2057842	 
	FP WEST PARK, LLC
	 	 	52-2057842	 
	FPR GENERAL PARTNER, LLC
	 	 	52-2057842	 
	FPR HOLDINGS LIMITED PARTNERSHIP
	 	 	52-2057842	 
	GATEWAY HAMPTON ROADS, LLC
	 	 	52-2057842	 
	GATEWAY MANASSAS I, LLC
	 	 	52-2057842	 
	GATEWAY MANASSAS II, LLC
	 	 	52-2057842	 
	GLENN DALE BUSINESS CENTER, L.L.C.
	 	 	52-2057842	 
	GREENBRIER HOLDING ASSOCIATES LLC
	 	 	52-2057842	 
	GREENBRIER LAND, LLC
	 	 	52-2057842	 
	GREENBRIER/NORFOLK HOLDING LLC
	 	 	52-2057842	 
	GREENBRIER/NORFOLK INVESTMENT LLC
	 	 	52-2057842	 
	GTC I SECOND LLC
	 	 	52-2057842	 
	GTC II FIRST LLC
	 	 	52-2057842	 
	HERNDON CORPORATE CENTER, LLC
	 	 	52-2057842	 
	INDIAN CREEK INVESTORS, LLC
	 	 	52-2057842	 
	INTERSTATE PLAZA HOLDING LLC
	 	 	52-2057842	 
	INTERSTATE PLAZA OPERATING LLC
	 	 	52-2057842	 
	KRISTINA WAY INVESTMENTS LLC
	 	 	52-2057842	 
	LANDOVER OWINGS MILLS, LLC
	 	 	52-2057842	 
	LINDEN I MANAGER, LLC
	 	 	52-2057842	 
	LINDEN I, LLC
	 	 	52-2057842	 
	LINDEN II, LLC
	 	 	52-2057842	 
	LINDEN III, LLC
	 	 	52-2057842	 
	LUCAS WAY HAMPTON, LLC
	 	 	52-2057842	 
	NEWINGTON TERMINAL ASSOCIATES, LLC
	 	 	52-2057842	 
	NEWINGTON TERMINAL LLC
	 	 	52-2057842	 
	NORFOLK COMMERCE PARK LLC
	 	 	52-2057842	 
	NORFOLK FIRST LLC
	 	 	52-2057842	 
	NORFOLK LAND, LLC
	 	 	52-2057842	 
	PLAZA 500, LLC
	 	 	52-2057842	 
	RESTON BUSINESS CAMPUS, LLC
	 	 	52-2057842	 
	RIVERS BEND BUSINESS CENTER ASSOCIATION, INC
	 	 	54-1682730	 
	RUMSEY FIRST LLC
	 	 	52-2057842	 
	RUMSEY/SNOWDEN HOLDING LLC
	 	 	52-2057842	 
	RUMSEY/SNOWDEN INVESTMENT LLC
	 	 	52-2057842	 
	SNOWDEN FIRST LLC
	 	 	52-2057842	 
	TECHCOURT, LLC
	 	 	52-2057842	 
	VIRGINIA CENTER, LLC
	 	 	52-2057842	 
	VIRGINIA FP VIRGINIA CENTER, LLC
	 	 	52-2057842	 
	WINDSOR AT BATTLEFIELD, LLC
	 	 	52-2057842	 





 


 









 






	 	 	 	 	 
	NAME OF ENTITY	 	TAX ID/EIN	 
	FP VIF I/ RIVERS PARK I, LLC
	 	 	80-0266532	 
	FP VIF II/ RIVERS PARK II, LLC
	 	 	80-0266544	 
	 
	 	 	 	 
	FP CPT 1750 HOLDINGS, LLC
	 	 	27-3776863	 
	FP CPT 1750 H STREET, LLC
	 	 	27-3776863	 
	FP CPT 1750 H STREET, LLC
	 	 	27-3776863	 
	 
	 	 	 	 
	FP REDLAND, LLC
	 	 	52-2057842	 
	FP REDLAND GP, LLC
	 	 	52-2057842	 
	FP REDLAND TECHNOLOGY CENTER LP
	 	 	20-8781872	 
	 
	 	 	 	 
	6960 AVIATION BLVD,OWNER, LLC
	 	 	27-4436410	 
	6960 AVIATION BLVD,OWNER, LLC
	 	 	27-4436410	 
	6960 AVIATION BLVD,BORROWER, LLC
	 	 	27-4436410	 
	FP AVIATION BLVD.,LLC
	 	 	27-4436410	 
	FP AVIATION HOLDINGS,LLC
	 	 	52-2057842	 
	VIF/FP AVIATION BLVD HOLDINGS
	 	 	27-4436410	 
	 
	 	 	 	 
	FP PERSEUS 53-713, LLC
	 	 	45-2447294	 





 


 









 






Schedule 8.19




Employee Benefit Plans



Retirement Savings Plan under Section 401(k) of the Internal Revenue Code, as more fully described
in the SEC Filings.



 


 









 








Schedule 9.1(g)




Contingent Liabilities



NONE.