Exhibit 10.3
FIRST AMENDMENT
TO
THIRD AMENDED AND
RESTATED LOAN AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED LOAN AGREEMENT
(this “First Amendment”) is made as of this 15
th day of October,
2008 by and among FRANKLIN STREET PROPERTIES CORP., a Maryland
corporation (“FSP”), those certain wholly owned
subsidiaries of FSP (the “Wholly Owned Subsidiaries”)
listed on Schedule 1 attached hereto (as the same may be
amended from time to time in accordance with the terms of the Loan
Agreement (as defined below)) (FSP and the Wholly Owned
Subsidiaries collectively, the “Borrower”), RBS
CITIZENS, NATIONAL ASSOCIATION (“Citizens”), BANK OF
AMERICA, N.A. (“BOA”), CHEVY CHASE BANK, F.S.B.
(“Chevy Chase”), WACHOVIA BANK, NATIONAL ASSOCIATION
(“Wachovia”), and any other lenders, if any, which may
become parties to the Loan Agreement (with Citizens, BOA, Chevy
Chase and Wachovia, the “Lenders”), and RBS CITIZENS,
NATIONAL ASSOCIATION, in its capacity as “Agent” for
the Lenders (“Agent”).
WHEREAS, Borrower, Agent and the Lenders entered into that certain
Third Amended and Restated Loan Agreement dated as of October 19,
2007 (the “Loan Agreement”), relating to a certain
revolving loan facility with a present maximum amount of
$250,000,000 made by the Lenders to Borrower (the
“Loan”); and
WHEREAS, Borrower desires to enter into a
term loan facility as evidenced by that certain Term Loan Agreement
dated as of the date hereof with a present maximum amount of
$75,000,000 between Borrower and the lenders thereunder, as may be
amended, modified, restated or revised from time to time (the
“Term Loan”); and
WHEREAS; Borrower has requested that the
Agent and the Lenders consent to the Term Loan; and
WHEREAS, the Agent and Lenders have
agreed to consent to Borrower entering into the Term Loan, provided
that (i) Borrower agrees to enter in to this First Amendment with
Agent and the Lenders to, among other things, amend certain
financial covenants and other terms and conditions in the Loan
Agreement, subject to the terms and conditions set forth herein,
(ii) FSP Austin N.W. Limited Partnership, a Massachusetts limited
partnership is removed as a Borrower under the Loan, (iii) FSP East
Baltimore Street LLC, a Delaware limited liability company, and FSP
Park Ten Phase II Limited Partnership, a Texas limited partnership,
are added as Borrowers under the Loan, and (iv) the respective
agents under the Loan and under Term Loan execute and deliver the
Intercreditor Agreement.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned parties hereby agree as
follows:
1. Capitalized
terms used but not defined herein shall have the meanings ascribed
to such terms in the Loan Agreement.
2. Section
2.4(b) of the is hereby deleted in its entirety and replaced with
the following:
“In the
event that the Borrower shall receive Advance(s) in excess of the
Loan Amount the Borrower shall immediately repay the Loan by an
amount sufficient to reduce the outstanding principal balance to
equal or less than the Loan Amount.”
3. Section
2.5.7 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“All
interest shall be: (a) Payable in arrears commencing
November 1, 2007 and on last day of each Libor Interest Period
thereafter until the principal together with all interest and other
charges payable with respect to the Loan shall be fully paid; and
(b) calculated on the basis of a 360 day year and the actual number
of days elapsed. Each change in the Prime Rate shall
simultaneously change the Variable Rate payable under this
Agreement. Interest at the Adjusted Libor Rate shall be
computed from and including the first day of the applicable
Interest Period to, but excluding, the last day
thereof.”
4. Section
2.5.9 of the Loan Agreement is hereby amended by deleted in its
entirety and replaced with the following:
“The
Loan or any portion thereof may be prepaid in full or in part at
any time upon three (3) Business Days’ prior written notice
to Agent without premium or penalty with respect to Variable Rate
Advances and, with respect to Libor Advances subject to a
Make-Whole Provision and upon payment of a LIBOR Rate Loan
Prepayment Fee, if applicable. Any partial prepayment of
principal shall be applied in accordance with the terms
hereof.”
5. Sections
2.11 and 10.2(c) of the Loan Agreement are hereby deleted in their
entirety. No advances under the Overline Facility were
made and the Overline Facility is no longer available.
6. Section
5 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“At the
time of an Acquisition by a Wholly Owned Subsidiary, such Wholly
Owned Subsidiary which has become an owner of a Property in
connection with such Acquisition shall execute the Joinder
Documents so as to become a Borrower under this Agreement and shall
be added as a maker under the Note. Upon the execution
of such Joinder Documents, such entities shall be considered a
“Borrower” and subject to all of the terms and
conditions hereof, and shall continue to be a
“Borrower” hereunder except as provided in clause (b)
of Section 1.2 hereof.”
7. Section
8.1(a) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Organization; Good Standing . Each of the
entities comprising the Borrower is a limited partnership, limited
liability company, or corporation, as the case may be, duly
organized under the laws of its state of organization pursuant to
each Person’s respective Organizational Documents, and is,
and will at all times be, validly existing and in good standing
under the laws of such State. The Borrower is, and will
at all times be, duly organized and is, and will at all times be,
validly existing, in good standing, and qualified to do business in
each jurisdiction where required except where failure to so qualify
would not have a material adverse affect on the Unencumbered Pool
Properties. Each of the entities comprising the Borrower
has, and will at all times have, all requisite power to own its
property and conduct its business as now conducted and as presently
contemplated.”
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8. Section
8.5 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“The
Borrower possesses, and will at all times possess, all franchises,
patents, copyrights, trademarks, trade names, licenses and permits,
and rights in respect of the foregoing, adequate for the conduct of
its business substantially as now conducted or as it is intended to
be conducted with respect to the Unencumbered Pool Properties,
without known conflict with any rights of others, except where the
failure to do so would not reasonably be expected to have a
material adverse effect on the Borrower taken as a
whole.”
9. Section
8.6 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“There
are no actions, suits, proceedings or investigations of any kind
pending or, to Borrower’s knowledge, threatened against the
Borrower before any court, tribunal or administrative agency or
board or any mediator or arbitrator that, either in any case or in
the aggregate, would reasonably be expected to materially and
adversely affect the business, assets or financial condition of the
Borrower taken as a whole, or result in any material liability not
adequately covered by insurance, and for which adequate reserves
are not maintained on the balance sheet of such Person, or which
question the validity of this Agreement or any of the other Loan
Documents, any action taken or to be taken pursuant hereto or
thereto, or which will materially and adversely affect the ability
of the Borrower to use and occupy any of the properties comprising
the Unencumbered Pool Properties or to pay and perform the
Obligations in the manner contemplated by this Agreement and the
other Loan Documents.”
10. Section
8.17 (including all therein) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
“The
Borrower makes the following representations and warranties, to the
best of its knowledge, with respect to each individual property
included in the Unencumbered Pool Properties, as of the date hereof
and except as disclosed in the Borrower’s filings with the
Securities and Exchange Commission:
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Availability of Utilities. (i) all utility
services necessary and sufficient for the use and operation of each
property comprising the Unencumbered Pool Properties are presently
available to the boundaries of each of the properties comprising
the Unencumbered Pool Properties through dedicated public rights of
way or through perpetual private easements; and (ii) the owner has
obtained all material utility installations and connections
required for the operation and servicing of each of the properties
comprising the Unencumbered Pool Properties for its intended
purposes.
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Access
. (i) the rights of way for all roads necessary for the
utilization in all material respects of each of the properties
comprising the Unencumbered Pool Properties for its intended
purposes have either been acquired by the appropriate Governmental
Authority or have been dedicated to public use and accepted by such
Governmental Authority; (ii) all such roads have been completed and
the right to use all such roads, or suitable substitute rights of
way, have been obtained; and (iii) all curb cuts, driveways and
traffic signals required for the operation and use in all material
respects of each of the properties comprising the Unencumbered Pool
Properties are existing.
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Condition
of Unencumbered Pool Properties . Neither the
Unencumbered Pool Properties nor any material part thereof is now
damaged or injured as result of any material fire, explosion,
accident, flood or other casualty, no Taking is pending or
contemplated.
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Compliance
with Requirements/Historic Status/Flood Area . The
Unencumbered Pool Properties comply with all material
Requirements. Except as disclosed in the Environmental
Report, Borrower has received no written notice alleging any
material non-compliance by any of the properties comprising the
Unencumbered Pool Properties with any Requirements or indicating
that any of the properties comprising the Unencumbered Pool
Properties is located within any historic district or has, or may
be, designated as any kind of historic or landmark site under
applicable Requirements. None of the properties
comprising the Unencumbered Pool Properties, except for the
Unencumbered Pool Property known as Blue Lagoon is located in any
special flood hazard area as defined under applicable Requirements,
unless such property is adequately covered by
insurance.
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The Borrower
has not made any material contract or arrangement of any kind or
type whatsoever (whether oral or written, formal or informal), the
performance of which by the other party thereto would reasonably be
expected to give rise to a lien or encumbrance on any of the
properties comprising the Unencumbered Pool Properties other than a
Permitted Lien.
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The Borrower
has not made any material contract or arrangement of any kind or
type whatsoever, with any affiliate of the Borrower, except for
management agreements with FSP Property Management LLC, agreements
for services of its employees, officers, trustees, managers and
directors and agreements with a Syndication REIT (including without
limitation agreements relating to Affiliate Dispositions) and
except as otherwise permitted in this Agreement which shall be
deemed approved by Lenders, unless such contract or arrangement is
in writing and is (i) approved in writing in advance by the Agent,
or is (ii) on the same terms as would be generally available to the
Borrower in an arm’s length contract or arrangement with a
third party.
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Violations . Except as disclosed in the
Environmental Reports, the Borrower has received no written notices
of any violation of any applicable material Requirements with
respect to any of the properties comprising the Unencumbered Pool
Properties.
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Environmental Matters . The Borrower has
caused an investigation to be made of the past and present
condition and usage of each individual property included in the
Unencumbered Pool Properties and the operations conducted thereon
and, based upon such investigation, except as disclosed in the
Environmental Reports and/or in the Borrower’s filings with
the Securities and Exchange Commission, makes the following
representations and warranties as of the date hereof and to the
best of Borrower’s knowledge:
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With respect
to the Unencumbered Pool Properties, the Borrower has not received
written notice from any third Person including, without limitation,
any federal, state or local governmental authority, asserting that
any of the operations thereon are in violation of any Environmental
Law or any judgment, decree or order related thereto which
violation would reasonably be expected to have a material adverse
effect on the business, assets or financial condition of the
Borrower.
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The Borrower
has not received written notice from any third Person including,
without limitation, any federal, state or local governmental
authority, asserting (i) that it has been identified by the United
States Environmental Protection Agency (“EPA”) as a
potentially responsible Person with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 300 Appendix B (1986);
(ii) that any Hazardous Substances which it has generated,
transported or disposed of have been found at any site at which a
federal, state or local agency or other third Person has conducted
or has ordered that the Borrower conduct a remedial investigation,
removal or other response action pursuant to any Environmental Law;
or (iii) that it is or shall be a named party to any claim, action,
cause of action, complaint, or legal or administrative proceeding
(in each case, contingent or otherwise) arising out of any third
Person’s incurrence of costs, expenses, losses or damages of
any kind whatsoever in connection with the release of Hazardous
Substances; which would reasonably be expected to have a material
adverse effect on the business, assets or financial condition of
the Borrower or result in cleanup expenses of Ten Million Dollars
($10,000,000.00) or more in the aggregate.
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With respect
to the Unencumbered Pool Properties: (i) no portion of the
Unencumbered Pool Properties has been used for the handling,
processing, storage or disposal of Hazardous Substances except in
connection with the use of the Unencumbered Pool Properties and any
such use, handling, storage or disposal has been materially in
accordance with applicable Environmental Laws; and no underground
tank or other underground storage receptacle for Hazardous
Substances is located on any portion of the Unencumbered Pool
Properties except in material compliance with Environmental Laws;
(ii) in the course of any activities conducted by the Borrower or
the operators of its properties, no Hazardous Substances have been
generated or are being used on the Unencumbered Pool Properties
except materially in accordance with applicable Environmental Laws;
(iii) there has been no release, i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (a
“Release”) or threatened Release of Hazardous
Substances on, upon, into or from the Unencumbered Pool Properties,
which Release would have a material adverse effect on the value of
the Unencumbered Pool Properties; (iv) there have been no Releases
on, upon, from or into any real property in the vicinity of any of
the Unencumbered Pool Properties which, through soil or groundwater
contamination, has come to be located on, and which has a material
adverse effect on the value of the Unencumbered Pool Properties;
and (v) any Hazardous Substances that have been generated by
Borrower on any of the Unencumbered Pool Properties have been
managed and/or disposed of materially in compliance with such
permits and applicable Environmental Laws.
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Except with
respect to the Unencumbered Pool Properties known as Blue Lagoon
and Collins Crossing, neither the Borrower nor any property
comprising the Unencumbered Pool Properties is subject to any
applicable Environmental Law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of
Hazardous Substances, or the giving of notice to any governmental
agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, in any case
which would reasonably be expected to have a material adverse
effect on the business, assets or financial condition of the
Borrower or result in cleanup expenses of Ten Million Dollars
($10,000,000.00) or more in the aggregate.
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The Borrower
shall indemnify, defend, and hold the Agent and the Lenders
harmless of and from any claim brought or threatened against the
Agent and the Lenders by the Borrower, any guarantor or endorser of
the Obligations, or any governmental agency or authority or any
other person (as well as from attorneys’ reasonable fees and
expenses in connection therewith) on account of the presence of
hazardous material or oil on any of the Unencumbered Pool
Properties, the release of hazardous materials or oil on or from
any of the Unencumbered Pool Properties, or the failure by the
Borrower to comply with the terms and provisions hereof (each of
which may be defended, compromised, settled, or pursued by the
Agent with counsel of the Agent’s selection, but at the
expense of the Borrower). This indemnification covers
any costs and expenses that the Agent and/or the Lenders may incur
and any damages or other liabilities including reasonable
attorneys’ fees for assessment, containment and/or removal of
any hazardous material or oil from all or any portion of the
Unencumbered Pool Properties or any surrounding
areas. The within indemnification shall survive payment
of the Obligations and/or any termination, release, or discharge
executed by the Agent in favor of the Borrower; provided, however,
that such indemnification shall not apply to any claim brought or
threatened against the Agent and/or the Lenders and arising from
the Agent’s and/or the Lenders’ gross negligence or
willful misconduct.”
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11. Section
8.20 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“The
representations, warranties, covenants and agreements contained
herein with respect to the Unencumbered Pool Properties, or any of
the properties comprising the Unencumbered Pool Properties, shall
be made as of the date hereof and no representations, warranties,
covenants and agreements are made with respect to the Unencumbered
Pool Properties subsequent to the date hereof.”
12. Section
9.2(c) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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contemporaneously with the delivery of the financial
statements referred to in clause (a) above, a statement of all
contingent liabilities of the Borrower which are not reflected in
such financial statements or referred to in the notes thereto,
certified by the principal financial or accounting office of FSP as
fairly presenting the financial condition of the Borrower as at the
close of business on the date(s) thereof, and upon request of the
Agent, annual budget and cash flow forecasts for the Borrower and
Unencumbered Pool Properties all in reasonable
detail;”
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13. Section
9.3(a) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Upon request,
the Borrower will provide evidence of insurance with respect to
each of the properties comprising the Unencumbered Pool
Properties.”
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14. Section
9.4 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“The
Borrower will duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue all claims for
labor, materials, or supplies that if unpaid would reasonably be
expected by law to become a lien or charge upon any of its Other
Properties, except as to Permitted Liens, or any of the
Unencumbered Pool Properties, except as to the Permitted Liens
otherwise permitted in the definition of Unencumbered Pool
Properties.”
15. Section
9.5(a) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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The Borrower
shall permit the Agent and the Lenders at the Borrower’s
expense, to visit and inspect any of the properties comprising the
Unencumbered Pool Properties and will cooperate with the Agent and
the Lenders during such inspections provided that this
provision shall not be deemed to impose on the Agent and the
Lenders any obligation to undertake such inspections;
provided that so long as no Default or Event of Default
shall have occurred and be continuing, the Borrower shall only be
obligated to pay the reasonable expenses associated with one (1)
such investigation of the books of account of the Borrower during
any twelve (12) month period commencing with the first anniversary
of this Agreement. Any such inspections are to be
conducted during normal business hours and prior to the occurrence
and continuation of an Event of Default, Lenders shall provide
Borrower with forty-eight (48) hours advance
notice.”
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16. Section
9.6 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“The
Borrower will comply in all material respects with (a) the
applicable laws and regulations wherever its business is conducted,
including all Environmental Laws and, in the case of the Borrower,
all Requirements, (b) the provisions of its Organizational
Documents and all Loan Documents to which Borrower or Subsidiary
are signatories, (c) all agreements and instruments by which it or
any of its properties may be bound, including, all restrictions,
covenants and easements affecting the Unencumbered Pool Properties,
(d) all applicable decrees, orders and judgments, and (e) all
licenses and permits required by applicable laws and regulations
for the conduct of its business or the ownership, use or operation
of its properties.”
17. Section
9.10 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“The
Borrower will promptly notify the Agent in writing of (i) the
occurrence of any Event of Default; (ii) the occurrence of any
other event which is likely to have a materially adverse effect on
any of the properties comprising the Unencumbered Pool Properties
or the business or financial condition of the Borrower; or (iii)
the receipt by the Borrower of any notice of default or notice of
termination with respect to any contract or agreement relating to
the ownership, operation, or use of any of the properties
comprising the Unencumbered Pool Properties which is likely to have
a materially adverse effect on the Borrower.”
18. Section
9.13 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“The
Borrower shall provide Agent with written notice of the
establishment of a Wholly Owned Subsidiary. At the time
of an Acquisition by a Wholly Owned Subsidiary, such Wholly Owned
Subsidiary which has become an owner of a Property in connection
with such Acquisition shall execute the Joinder Documents so as to
become a Borrower under this Agreement.”
19. Section
9.15 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“Borrower shall provide Agent with written notice of
all dispositions or Acquisitions of individual properties by FSP or
a Wholly Owned Subsidiary within seven (7) days prior to the
disposition or Acquisition. With respect to any
Acquisitions, the notice shall include the location of the
property, the purchase price and the projected closing
date. With respect to any disposition (other than an
Affiliate Disposition) of individual properties by a Wholly Owned
Subsidiary, the notice shall include a certification from the chief
financial officer of FSP stating that such disposition shall not
cause a violation of any covenant contained herein, including,
without limitation, any breach of §10.8, both before and after
such disposition, and that no Default or Event of Default exists
hereunder. With respect to Syndication REITS, Borrower
will provide Agent with a copy of the applicable confidential
offering memorandum on or before the first Syndication Event for
such offering. All real property acquired in an
Acquisition by FSP or a Wholly Owned Subsidiary (including a 1031
Property) shall become part of the Property and shall be subject to
the terms hereof, and the definition of Property shall be deemed
amended to include all such real property (including 1031 Property)
and to exclude any property disposed of by the Borrower pursuant to
the terms hereof.”
20. Section
10.2(e) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Indebtedness
secured by liens on Other Properties, and the liens on Unencumbered
Pool Properties (limited to Permitted Liens permitted in the
definition of Unencumbered Pool Properties) subject to the
limitations in Section 10.8(g);”
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21. Section
10.2(f) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“(f) Reserved.”
22. Section
10.2(i) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Indebtedness
not to exceed the principal amount of $1,000,000 at any time
outstanding, including without limitation guarantees and capital
leases; and”
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23. The
following new Section 10.2(j) is hereby added to the Loan
Agreement:
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Indebtedness arising from use of the Term Loan.
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24. Section
10.3 of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“With
the exception of Permitted Liens, the Borrower will not (a) create
or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, charge or other security interest of
any kind upon any of the Borrower’s Properties, or upon the
income or profits therefrom; (b) transfer any of the
Borrower’s Properties or the income or profits therefrom for
the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to payment of
its general creditors, except as provided in Section 10.2(e); (c)
acquire, or agree or have an option to acquire, any property or
assets upon conditional sale or other title retention or purchase
money security agreement, device or arrangement; (d) suffer to
exist for a period of more than thirty (30) days after the same
shall have been incurred any Indebtedness or claim or demand
against it that if unpaid would likely by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its
general creditors; or (e) sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles,
chattel paper or instruments, with or without recourse; provided
that the Borrower may create or incur or suffer to be created or
incurred or to exist liens in favor of the Lenders under the Loan
Documents and in favor of the agent and lenders under the Term
Loan. Notwithstanding the foregoing, the Borrower may
sell any of its Property, whether now owned or hereafter acquired,
provided that prior to and after any such sale (i) the Borrower is
in compliance with all of its covenants herein, including, without
limitation, the financial covenants contained in §10.8, and
(ii) No Default or Event of Default has occurred and is continuing
hereunder.”
25. Section
10.4(g) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“(g) mutual funds
managed by Agent and Co-Agent or their respective
affiliates;”
26. Section
10.8(a) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Loan to
Value . The ratio (“Loan to Value
Ratio”) obtained by dividing the aggregate, without
duplication, of (i) the outstanding principal balance of the Loan,
(ii) the outstanding principal balance of the Term Loan, and (iii)
other unsecured indebtedness for borrowed money, by the
Value of the Unencumbered Pool Properties, expressed as a
percentage, shall not be greater than sixty percent
(60%). This covenant shall be tested at the end of each
fiscal quarter of the Borrower. In testing compliance
with this covenant the Value of the Unencumbered Pool Properties
attributed to any one property may not exceed 20% of the aggregate
Value of the Unencumbered Pool Properties for all
properties.”
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27. Section
10.8(b) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Ratio of
Net Operating Income to Debt Service Charges . The
Borrower will not permit the ratio of Net Operating Income of
Borrower to Debt Service Charges to be less than 2.0 to
1.0. This covenant shall be tested at the end of each
fiscal quarter of the Borrower.”
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28. Section
10.8(c) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Consolidated Indebtedness . The Borrower
will not permit Consolidated Indebtedness to exceed 50% of the
aggregate of (i) the Value of the Properties plus (ii) the book
value of all tangible assets of the Borrower (other than real
estate and after eliminating any duplication which will include (a)
cash and cash equivalents, (b) stock held in Syndication REITS, and
(c) mortgage receivables from Syndication REITS). This
covenant shall be tested at the end of each fiscal quarter of the
Borrower.”
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29. Section
10.8(e) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Account
Balances . The Borrower, any Wholly Owned
Subsidiaries and affiliated companies, shall, at all times,
maintain with the Agent or its affiliate minimum checking account
and savings account (exclusive of trust accounts) collected
balances of $1,500,000.00 (less any amount maintained in checking
accounts and savings accounts (exclusive of trust accounts) with
the agent under the Term Loan). This covenant shall be
tested at the end of each fiscal quarter of the
Borrower.”
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30. Section
10.8(g) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
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Maximum
Secured Debt . The Borrower will not permit secured
Indebtedness of the Borrower to exceed 25% of
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