FIFTH AMENDMENT TO TERM LOAN AGREEMENT
Exhibit 10.2
Execution Version
FIFTH AMENDMENT TO TERM LOAN AGREEMENT
This Fifth Amendment to Term Loan Agreement (this “Amendment”) is made as of this 29th day of November, 2022, among EASTERLY GOVERNMENT PROPERTIES LP, a Delaware limited partnership (the “Borrower”), EASTERLY GOVERNMENT PROPERTIES, INC., a Maryland corporation (the “Parent”), the entities listed on the signature pages hereof as the subsidiary guarantors from time to time, (the “Subsidiary Guarantors” and, together with the Parent, the “Guarantors”), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the lenders (each a “Lender” and collectively, the “Lenders”) and PNC BANK, NATIONAL ASSOCIATION, as administrative agent (the “Agent”) for the Lenders. Unless otherwise defined herein, terms defined in the Loan Agreement (as defined below) shall have the same meaning herein.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into a certain Term Loan Agreement dated as of September 29, 2016 (as amended by that certain First Letter Amendment dated as of October 28, 2016, that certain Second Amendment to Term Loan Agreement dated as of June 18, 2018, that certain Third Letter Amendment dated as of October 3, 2018 and that certain Fourth Amendment to Term Loan Agreement dated as of July 23, 2021, the “Loan Agreement”);
WHEREAS, the Borrower, the Agent, the Lenders and the Guarantors have agreed to amend the Loan Agreement and the other Loan Documents as set forth herein.
NOW, THEREFORE, the Loan Agreement and the Guaranty are hereby amended as follows:
1. Amendments.
(a) The Loan Agreement (including the exhibits thereto) is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in the pages of the Loan Agreement attached as Annex A (as so amended, the “Amended Loan Agreement”).
(b) Schedule 4.01(b) to the Loan Agreement is hereby replaced in its entirety with Schedule 4.01(b) attached hereto as Annex B.
2. Representations and Warranties. The Borrower hereby represents, warrants and covenants with the Agent and the Lenders that, as of the date hereof (i) all representations and warranties made in the Loan Agreement and other Loan Documents remain and continue to be true and correct in all material respects, except to the extent that (x) such representations and warranties expressly refer to an earlier date and (y) any such representations and warranties are no longer true and correct as a result of factual changes since the Closing Date that are permitted under the Loan Agreement and (ii) to the knowledge of the Borrower, there exists no Default or Event of Default under any of the Loan Documents.
3. Reference to and Effect on the Loan Agreement and the Loan Documents.
(a) This Amendment is a Loan Document. On and after the effectiveness of this Amendment, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Loan Agreement, and each reference in the other Loan Documents to “the Loan Agreement”, “thereunder”, “thereof” or words of like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement, as amended and modified by this Amendment to read in the form of the Amended Loan Agreement.
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(b) On and after the effectiveness of this Amendment, each reference in the Guaranty to “this Guaranty”, “hereunder”, “hereof” or words of like import referring to the Guaranty, and each reference in the other Loan Documents to “the Guaranty”, “thereunder”, “thereof” or words of like import referring to the Guaranty, shall mean and be a reference to the Guaranty, as amended and modified by this Amendment to read in the form of the Amended Guaranty.
4. Miscellaneous. This Amendment, which may be executed in multiple counterparts, constitutes the entire agreement of the parties regarding the matters contained herein and shall not be modified by any prior oral or written discussions. Delivery of an executed counterpart of a signature page of this Amendment by telecopy or other electronic imaging transmission (e.g., PDF by email) shall be effective as delivery of a manually executed counterpart of this Amendment. Each of the Borrower and each Guarantor hereby ratifies, confirms and reaffirms all of the terms and conditions of the Loan Agreement, and each of the other Loan Documents to which it is a party, and further acknowledges and agrees that all of the terms and conditions of the Loan Agreement and other Loan Documents to which it is a party shall remain in full force and effect, except as expressly provided in this Amendment. Any determination that any provision of this Amendment or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Amendment.
5. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
[SIGNATURES ON FOLLOWING PAGE]
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It is intended that this Amendment take effect as an instrument under seal as of the date first written above.
BORROWER: |
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EASTERLY GOVERNMENT PROPERTIES LP, |
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a Delaware limited partnership |
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By: |
EASTERLY GOVERNMENT PROPERTIES, |
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INC., a Maryland corporation, |
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its sole General Partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Executive Vice President, Chief |
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Financial Officer and Chief Operating Officer |
PARENT: |
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EASTERLY GOVERNMENT PROPERTIES, INC., a Maryland corporation |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Executive Vice President, Chief |
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Financial Officer and Chief Operating Officer |
[Signatures continue]
[Signature Page to Fifth Amendment to Term Loan Agreement]
SUBSIDIARY GUARANTORS: |
USGP ALBANY DEA, LLC, a Delaware limited |
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liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP DALLAS DEA LP, a Delaware limited |
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partnership |
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By: USGP DALLAS 1 G.P., LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP DEL RIO CH LP, a Delaware limited |
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partnership |
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By: USGP DEL RIO 1 G.P., LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP FRESNO IRS, LLC, a Delaware limited |
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liability company |
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By: USGP FRESNO IRS MEMBER LLC, its sole |
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member |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP SAN ANTONIO, LP, a Delaware limited |
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partnership |
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By: USGP SAN ANTONIO GP, LLC, its general |
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partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
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USGP ALBUQUERQUE USFS I, LLC, a Delaware limited liability company |
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By: USGP ALBUQUERQUE USFS I MEMBER, LLC, its sole member |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP II ARLINGTON PTO LP, a Delaware |
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limited partnership |
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By: USGP II ARLINGTON PTO GENERAL PARTNER LLC, |
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its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP II LAKEWOOD DOT LP, a Delaware limited partnership |
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By: USGP II LAKEWOOD DOT GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP II LITTLE ROCK FBI LP, a Delaware limited partnership |
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By: USGP II LITTLE ROCK FBI GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
USGP II MARTINSBURG USCG LP, a Delaware limited partnership |
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By: USGP II MARTINSBURG USCG GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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USGP II OMAHA FBI LP, a Delaware limited partnership |
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By: USGP II OMAHA FBI GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP CH EL CENTRO LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
EGP DEA NORTH HIGHLANDS LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx Xxxxx: Chief Financial and Operating Officer |
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EGP DEA RIVERSIDE LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP DEA SANTA XXX LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP DEA VISTA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP DEA WH SAN DIEGO LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP SSA SAN DIEGO LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
EGP HUNTER LUBBOCK LP, a Delaware limited partnership |
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By: EGP LUBBOCK GP LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP CH ABERDEEN LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 2297 OTAY LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP USCIS LINCOLN LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP DEA Lab Dallas LP, a Delaware limited partnership
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By: EGP DEA LAB DALLAS GENERAL PARTNER LLC, its general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
EGP 1970 RICHMOND LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 5441 ALBUQUERQUE LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 601 OMAHA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 920 BIRMINGHAM LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 300 KANSAS CITY LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 1000 BIRMINGHAM LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
EGP 200 ALBANY LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 000 XXXXX XXXX LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 5425 SALT LAKE LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 0000 XXXXX XXXX LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 1201 ALAMEDA LLC, a Delaware limited liability company
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Operating Officer |
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EGP 10749 LENEXA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 1547 XXXXX LLC, a Delaware limited liability company |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 5855 SAN XXXX LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 10824 DALLAS LP, a Delaware limited partnership |
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By: EGP 10824 DALLAS GENERAL PARTNER LLC, its |
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general partner |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 130 BUFFALO LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 320 CLARKSBURG LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 320 PARKERSBURG LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 500 CHARLESTON LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
[Signature Page to Fifth Amendment to Term Loan Agreement]
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 2300 DES PLAINES LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 3311 PITTSBURGH LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 85 CHARLESTON LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 7400 BAKERSFIELD LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 0000 XXXXX XXXXXXXX LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 836 BIRMINGHAM LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
[Signature Page to Fifth Amendment to Term Loan Agreement]
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EGP 22624 STERLING LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 1201 PORTLAND LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 116 SUFFOLK LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 2901 NEW ORLEANS LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 11201 LENEXA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 14101 TUSTIN LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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ORANGE VA LLC, a Connecticut limited liability company |
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By: EGP WEST HAVEN LLC, its sole member |
[Signature Page to Fifth Amendment to Term Loan Agreement]
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 660 EL PASO LP, a Delaware limited partnership |
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By: EGP 660 EL PASO GENERAL PARTNER LLC, its general member |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 4444 MOBILE LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 200 MOBILE LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 4136 NORTH CHARLESTON LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 2021 XXXXXXXX LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
[Signature Page to Fifth Amendment to Term Loan Agreement]
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 111 XXXXXXX LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 654 LOUISVILLE LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 1501 KNOXVILLE LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 318 SPRINGFIELD LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 7220 KANSAS CITY LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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[Signature Page to Fifth Amendment to Term Loan Agreement]
EGP 000 Xxxxxxxx Xxxxxxx LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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West Indy VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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EGP 17101 Broomfield LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer
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LUBBOCK VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer
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XXXXXXX COUNTY VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
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Chattanooga VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer |
[Signature Page to Fifth Amendment to Term Loan Agreement]
SAN ANTONIO VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer
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BIRMINGHAM VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx Xxxxx: Chief Financial and Operating Officer |
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XXXX COUNTY VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer
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COLUMBUS VA LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Chief Financial and Operating Officer
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EGP 5525 Tampa LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx Xxxxx: Chief Financial and Operating Officer |
EGP 2146 COUNCIL BLUFFS LLC, a Delaware limited liability company |
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By: |
/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx Xxxxx: Chief Financial and Operating Officer |
[Signature Page to Fifth Amendment to Term Loan Agreement]
The foregoing Amendment is hereby consented to, acknowledged and agreed as of the date hereof.
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent and a Lender
By: /s/ Xxxxx Xxxxxxx_________________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
[Signature Page to Fifth Amendment to Term Loan Agreement]
TRUIST BANK, as a Lender
By: /s/ X. Xxxxxxx Xxxxxx, Xx._________________________
Name: X. Xxxxxxx Xxxxxx, Xx.
Title: Director
[Signature Page to Fifth Amendment to Term Loan Agreement]
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx _______________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
[Signature Page to Fifth Amendment to Term Loan Agreement]
ANNEX A
[Attached.]
Execution Version
ANNEX A TO FOURTHFIFTH AMENDMENT
CONFORMED COPY REFLECTING FIRST LETTER AMENDMENT DATED AS OF OCTOBER 28, 2016, SECOND AMENDMENT DATED AS OF JUNE 18, 2018, THIRD LETTER AMENDMENT DATED AS OF OCTOBER 3, 2018 AND, FOURTH AMENDMENT DATED AS OF JULY 23, 2021, AND FIFTH AMENDMENT DATED AS OF NOVEMBER 29, 2022
$100,000,000
TERM LOAN AGREEMENT
Dated as of September 29, 2016
among
EASTERLY GOVERNMENT PROPERTIES LP,
as Borrower,
EASTERLY GOVERNMENT PROPERTIES, INC.,
as Parent,
THE GUARANTORS NAMED HEREIN,
as Guarantors,
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
PNC BANK, NATIONAL ASSOCIATION,
as Administrative Agent,
U.S. BANK NATIONAL ASSOCIATION
and
TRUIST BANK,
as Syndication Agents,
and
PNC CAPITAL MARKETS LLC,
U.S. BANK NATIONAL ASSOCIATION,
and
TRUIST SECURITIES, INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Page |
Article I DEFINITIONS AND ACCOUNTING TERMS |
||
Section 1.01 |
1 |
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Section 1.02 |
34 |
|
Section 1.03 |
34 |
|
Section 1.04 |
34 |
|
Section 1.05 |
34 |
|
Article II AMOUNTS AND TERMS OF THE ADVANCES |
||
Section 2.01 |
34 |
|
Section 2.02 |
35 |
|
Section 2.03 |
36 |
|
Section 2.04 |
36 |
|
Section 2.05 |
36 |
|
Section 2.06 |
36 |
|
Section 2.07 |
37 |
|
Section 2.08 |
46 |
|
Section 2.09 |
46 |
|
Section 2.10 |
47 |
|
Section 2.11 |
48 |
|
Section 2.12 |
50 |
|
Section 2.13 |
54 |
|
Section 2.14 |
55 |
|
Section 2.15 |
55 |
i
Section 2.16 |
56 |
|
Section 2.17 |
56 |
|
Section 2.18 |
57 |
|
Section 2.19 |
58 |
|
Article III CONDITIONS PRECEDENT TO CLOSING |
||
Section 3.01 |
59 |
|
Section 3.02 |
61 |
|
Section 3.03 |
62 |
|
Article IV REPRESENTATIONS AND WARRANTIES |
||
Section 4.01 |
62 |
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Article V COVENANTS OF THE LOAN PARTIES |
||
Section 5.01 |
68 |
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Section 5.02 |
73 |
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Section 5.03 |
77 |
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Section 5.04 |
80 |
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Article VI EVENTS OF DEFAULT |
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Section 6.01 |
81 |
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Article VII GUARANTY |
||
Section 7.01 |
84 |
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Section 7.02 |
84 |
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Section 7.03 |
85 |
ii
Section 7.04 |
86 |
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Section 7.05 |
87 |
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Section 7.06 |
87 |
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Section 7.07 |
87 |
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Section 7.08 |
88 |
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Section 7.09 |
88 |
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Article VIII THE ADMINISTRATIVE AGENT |
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Section 8.01 |
88 |
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Section 8.02 |
89 |
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Section 8.03 |
89 |
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Section 8.04 |
90 |
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Section 8.05 |
90 |
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Section 8.06 |
90 |
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Section 8.07 |
91 |
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Section 8.08 |
91 |
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Section 8.09 |
93 |
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Article IX MISCELLANEOUS |
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Section 9.01 |
94 |
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Section 9.02 |
96 |
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Section 9.03 |
98 |
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Section 9.04 |
98 |
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Section 9.05 |
100 |
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Section 9.06 |
101 |
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Section 9.07 |
101 |
iii
Section 9.08 |
104 |
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Section 9.09 |
104 |
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Section 9.10 |
105 |
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Section 9.11 |
105 |
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Section 9.12 |
105 |
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Section 9.13 |
105 |
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Section 9.14 |
108 |
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Section 9.15 |
109 |
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Section 9.16 |
109 |
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Section 9.17 |
110 |
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Section 9.18 |
110 |
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Section 9.19 |
110 |
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Section 9.20 |
Acknowledgement and Consent to Bail-In of Affected Financial Institutions |
110 |
Section 9.21 |
111 |
iv
SCHEDULES
Schedule I |
‑ |
Commitments and Applicable Lending Offices |
Schedule II |
‑ |
Unencumbered Assets |
Schedule 4.01(b) |
‑ |
Subsidiaries |
Schedule 4.01(f) |
‑ |
Material Litigation |
Schedule 4.01(m) |
‑ |
Existing Debt |
Schedule 4.01(n) |
‑ |
Surviving Debt |
Schedule 4.01(o) |
‑ |
Existing Liens |
Schedule 4.01(p) |
‑ |
Real Property |
Part I |
‑ |
Owned Assets |
Part II |
‑ |
Leased Assets |
Schedule 4.01(q) |
‑ |
Environmental Concerns |
Schedule 4.01(w) |
‑ |
Plans and Welfare Plans |
EXHIBITS
Exhibit A |
‑ |
Form of Note |
Exhibit B |
‑ |
Form of Notice of Borrowing |
Exhibit C |
‑ |
Form of Guaranty Supplement |
Exhibit D |
‑ |
Form of Assignment and Acceptance |
Exhibit E |
‑ |
[Reserved] |
Exhibit F |
‑ |
[Reserved] |
Exhibit G‑1 |
‑ |
Form of Section 2.12(g) U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit G‑2 |
|
Form of Section 2.12(g) U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit G‑3 |
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Form of Section 2.12(g) U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) |
Exhibit G‑4 |
|
Form of Section 2.12(g) U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) |
v
TERM LOAN AGREEMENT
TERM LOAN AGREEMENT dated as of September 29, 2016 (this “Agreement”) among EASTERLY GOVERNMENT PROPERTIES LP, a Delaware limited partnership (the “Borrower”), EASTERLY GOVERNMENT PROPERTIES, INC., a Maryland corporation (the “Parent”), the entities listed on the signature pages hereof as the subsidiary guarantors from time to time (together with any Additional Guarantors (as hereinafter defined) acceding hereto pursuant to Section 5.01(j) or 7.05, from time to time, the “Subsidiary Guarantors” and, together with the Parent, the “Guarantors”), the banks, financial institutions and other institutional lenders listed on the signature pages hereof as the initial lenders (the “Initial Lenders”), PNC BANK, NATIONAL ASSOCIATION (“PNC”), as administrative agent (together with any successor administrative agent appointed pursuant to Section 8.06, the “Administrative Agent”) for the Lenders (as hereinafter defined), with U.S. BANK NATIONAL ASSOCIATION (“USBNA”) and TRUIST BANK, successor by merger to SunTrust Bank, as syndication agents, and PNC CAPITAL MARKETS LLC (“PNCCM”), USBNA and TRUIST SECURITIES, INC., as joint lead arrangers and joint bookrunners (the “Arrangers”).
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Acceding Lender” has the meaning specified in Section 2.17(d).
“Accession Agreement” has the meaning specified in Section 2.17(d)(i).
“Additional Guarantor” has the meaning specified in Section 7.05.
“Adjusted EBITDA” means an amount equal to (a) EBITDA for the fiscal quarter of the Parent most recently ended for which financial statements are required to be delivered to the Lenders pursuant to Section 5.03(b) or (c), as the case may be, multiplied by four, less (b) the Capital Expenditure Reserve for all Assets for such fiscal quarter, other than any Asset owned by an Unrestricted Subsidiary.
“Adjusted Net Operating Income” means, with respect to any Asset, (a) Net Operating Income attributable to such Asset multiplied by four less (b) the Management Fee Adjustment for such Asset less (c) the Capital Expenditure Reserve for such Asset, in each case for the fiscal quarter most recently ended for which financial statements are required to be delivered to the Lenders pursuant to Section 5.03(b) or (c), as the case may be. In no event shall the Adjusted Net Operating Income for any Asset be less than zero.
“Adjusted Term SOFR” means, for any Interest Period, an interest rate per annum equal to (a) Term SOFR for such Interest Period, plus (b) 0.10% (10 basis points); provided, however, that in no event shall Adjusted Term SOFR be less than the Floor.
“Adjusted Term SOFR Advance” means an Advance that bears interest at a rate based on Adjusted Term SOFR (other than pursuant to clause (c) of the definition of Base Rate).
“Administrative Agent” has the meaning specified in the recital of parties to this Agreement.
“Administrative Agent’s Account” means the account of the Administrative Agent maintained by the Administrative Agent with PNC Bank, N.A., Pittsburgh, at its office at PNC Firstside Center 4th Floor, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, ABA No. 000-000-000, Account No. 130760016803, Account Name:
AMERICAS/2023485077.00000000000.5
Commercial Loan Operations, Reference: Easterly Government Properties LP, Attention: Xxxxxx Xxxxx, or such other account as the Administrative Agent shall specify in writing to the Borrower and the Lenders.
“Advance” has the meaning specified in Section 2.01.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term “control” (including the terms “controlling”, “controlled by” and “under common control with”) of a Person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Interests, by contract or otherwise.
“Agreement” has the meaning specified in the recital of parties to this Agreement.
“Agreement Value” means, the net amount in respect of all Hedge Agreements, determined, with respect to each Hedge Agreement, on any date of determination, reasonably and in good faith by the Administrative Agent equal to: (a) in the case of a Hedge Agreement documented pursuant to the Master Agreement (Multicurrency‑Cross Border) published by the International Swap and Derivatives Association, Inc. (the “Master Agreement”), the amount, if any, that would be payable by or to any Loan Party or any of its Subsidiaries to or by its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement was being terminated early on such date of determination, (ii) such Loan Party or Subsidiary was the sole “Affected Party”, and (iii) the Administrative Agent was the sole party determining such payment amount (with the Administrative Agent making such determination reasonably and in good faith pursuant to the provisions of the form of Master Agreement); or (b) in the case of a Hedge Agreement traded on an exchange, the mark‑to‑market value of such Hedge Agreement, which will be the unrealized loss or unrealized profit on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined reasonably and in good faith by the Administrative Agent based on the settlement price of such Hedge Agreement on such date of determination; or (c) in all other cases, the mark‑to‑market value of such Hedge Agreement, which will be the unrealized loss or unrealized profit on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined reasonably and in good faith by the Administrative Agent as the amount, if any, by which (i) the present value of the future cash flows to be paid by such Loan Party or Subsidiary exceeds (or is less than, as applicable) (ii) the present value of the future cash flows to be received by such Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not otherwise defined in this definition shall have the respective meanings set forth in the above described Master Agreement.
“Alternate Source” has the meaning set forth in the definition of “Eurodollar Rate” or “Federal Funds Open Rate”, as applicable.
Anti-Terrorism Laws” means any Laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Laws, all as amended, supplemented or replaced from time to time.
“Applicable Lending Office” means, with respect to each Lender, such Lexxxx’s Domestic Lending Office in the case of a Base Rate Advance and such Lender’s EurodollarSOFR Lending Office in the case of a Eurodollar Ratean Adjusted Term SOFR Advance.
(a) “Applicable Margin” means, at any date of determination, (a) a percentage per annum determined by reference to the Leverage Ratio as set forth below, but subject to clause (b) below:
2
Pricing Level |
Leverage Ratio |
Applicable Margin for Eurodollar RateAdjusted Term SOFR Advances |
Applicable Margin for Base Rate Advances |
I |
< 35% |
1.20% |
0.20% |
II |
≥ 35% but < 40% |
1.25% |
0.25% |
III |
≥ 40% but < 45% |
1.35% |
0.35% |
IV |
≥ 45% but < 50% |
1.40% |
0.40% |
V |
≥ 50% but < 55% |
1.50% |
0.50% |
VI |
≥ 55% |
1.70% |
0.70% |
The Applicable Margin for each Base Rate Advance shall be determined by reference to the Leverage Ratio in effect from time to time and the Applicable Margin for any Interest Period for all Eurodollar RateAdjusted Term SOFR Advances comprising part of the same Borrowing shall be determined by reference to the Leverage Ratio in effect on the first day of such Interest Period; provided, however, that (i) the Applicable Margin shall initially be at Pricing Level I on the Closing Date, (ii) no change in the Applicable Margin resulting from the Leverage Ratio shall be effective until the first Business Day after the date on which the Administrative Agent receives (x) the financial statements required to be delivered pursuant to Section 5.03(b) or (c), as the case may be, and (y) a certificate of the Chief Financial Officer (or other Responsible Officer performing similar functions) of the Borrower demonstrating the Leverage Ratio, and (iii) the Applicable Margin shall be at Pricing Level V for so long as the Borrower has not submitted to the Administrative Agent as and when required under Section 5.03(b) or (c), as applicable, the information described in clause (ii) of this proviso and shall continue to apply until the first Business Day after the date on which the information described in clause (ii) of this proviso is delivered. If as a result of a restatement of the Borrower’s financial statements or other recomputation of the Leverage Ratio on which the Applicable Margin is based, the interest paid or accrued hereunder was paid or accrued at a rate lower than the interest that would have been payable had such Leverage Ratio been correctly computed, the Borrower shall pay to the Administrative Agent for the account of the Lenders promptly following demand therefor the difference between the amount that should have been paid or accrued and the amount actually paid or accrued.
(b) In the event that the Borrower or the Parent achieves an Investment Grade Rating, the Borrower may, upon written notice to the Administrative Agent, make an irrevocable one‑time written election (setting forth the date for such election to be effective) to exclusively use the ratings‑based pricing grid set forth below (a “Ratings Grid Election”), in which case the Applicable Margin for Eurodollar RateAdjusted Term SOFR Advances and Base Rate Advances will be determined, as per the pricing grid below, on the basis of the Debt Rating of the Borrower or the Parent (as applicable), as set forth below, notwithstanding any failure of the Borrower or the Parent (as applicable) to maintain an Investment Grade Rating:
Debt Rating of Borrower or Parent |
Applicable Margin for Eurodollar RateAdjusted Term SOFR Advances |
Applicable Margin for Base Rate Advances |
> A-/A3 |
0.85% |
0.00% |
BBB+/Baa1 |
0.90% |
0.00% |
BBB/Baa2 |
1.00% |
0.00% |
BBB-/Baa3 |
1.25% |
0.25% |
< BBB-/Baa3 (or unrated) |
1.65% |
0.65% |
“Approved Electronic Communications” means each Communication that any Loan Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, including any financial statement, financial and other report, notice, request, certificate and other information materials required to be delivered pursuant to Sections 5.03(b), (c), (e), (g), and (k); provided, however, that solely with respect to delivery of any such Communication by any Loan
3
Party to the Administrative Agent and without limiting or otherwise affecting either the Administrative Agent’s right to effect delivery of such Communication by posting such Communication to the Approved Electronic Platform or the protections afforded hereby to the Administrative Agent in connection with any such posting, “Approved Electronic Communication” shall exclude (i) any notice of borrowing, notice of Conversion or continuation, and any other notice, demand, communication, information, document and other material relating to a request for a new, or a Conversion of an existing, Borrowing, (ii) any notice pursuant to Section 2.06(a) and any other notice relating to the payment of any principal or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Article III or any other condition to any Borrowing or other extension of credit hereunder or any condition precedent to the effectiveness of this Agreement.
“Approved Electronic Platform” has the meaning specified in Section 9.02(c).
“Arrangers” has the meaning specified in the recital of parties to this Agreement.
“Assets” means Office Assets, Development Assets, Redevelopment Assets, Joint Venture Assets and Mixed Use Assets.
“Asset Value” means, at any date of determination, (a) in the case of any Office Asset or any Mixed Use Asset, the Capitalized Value of such Office Asset or Mixed Use Asset; provided, however, that the Asset Value of each Office Asset or Mixed Use Asset, as the case may be (other than a Development Asset or Redevelopment Asset) shall be equal, during the first 24 months following acquisition thereof, to the greater of (i) the acquisition price of such Office Asset or Mixed Use Asset, as applicable and (ii) the Capitalized Value of such Office Asset or Mixed Use Asset, as applicable, (b) in the case of any Development Asset or Redevelopment Asset, the gross book value of such Asset as determined in accordance with GAAP, (c) in the case of any Joint Venture Asset that, but for such Asset being owned by a Joint Venture, would qualify as an Office Asset or a Mixed Use Asset under the applicable definition thereof, the JV Pro Rata Share of the Capitalized Value of such Joint Venture Asset; provided, however, that the Asset Value of each Joint Venture Asset shall be equal, during the first 24 months following acquisition thereof, to the JV Pro Rata Share of the greater of (x) the acquisition price of such Joint Venture Asset or (y) the Capitalized Value of such Joint Venture Asset, (d) in the case of any Joint Venture Asset that, but for such Asset being owned by a Joint Venture, would qualify as a Development Asset or Redevelopment Asset under the definition thereof, the JV Pro Rata Share of the gross book value of such Joint Venture Asset as determined in accordance with GAAP, and (e) in the case of any other asset of the Parent or any of its Subsidiaries that is not already referenced in clauses (a) through (d) above, the gross book value of such asset as determined in accordance with GAAP.
“Assignment and Acceptance” means an assignment and acceptance entered into by a Lexxxx xnd an Eligible Assignee, and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit D hereto.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the
4
United Kingdom Banking Act 2009 (as amended from time to time)UK Bail-In Legislation and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Law” means any applicable law governing a proceeding of the type referred to in Section 6.01(f) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.
“Base Rate” means, the greatest of (a) the interest rate per annum announced from time to time by the Administrative Agent at its Principal Office as its then prime rate, which rate may not be the lowest rate then being charged commercial borrowers by the Administrative Agent, (b) the Federal Funds Open Rate plus 0.5% per annum or (c) the Daily Eurodollar Rate plus 1.0% per annum, so long as a Daily Eurodollar Rate is offered, ascertainable and not unlawfulAdjusted Term SOFR for a one-month Interest Period in effect on such day plus 1% per annum (taking into account any floor set forth in the definition of Adjusted Term SOFR); provided, however, that in no circumstance shall the Base Rate be less than 0% per annumthe Floor. Any change in the Base Rate (or any component thereof) will take effect as of the opening of business on the day such change occurs. If the Base Rate is being used as an alternate rate of interest pursuant to Section 2.07(d) or 2.07(e), then the Base Rate shall be equal to the higher of (a) and (b) above and shall be determined without reference to clause (c) above.
“Base Rate Advance” means an Advance that bears interest as provided in Section 2.07(a)(i).
“ Base Rate Term SOFR Determination Day” has the meaning set forth in the definition of Term SOFR.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such “employee benefit plan” or “plan”.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a replacement of the Benchmark has occurred pursuant to Section 2.07(e), then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities for the applicable loan market at such time and (b) the related Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such
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Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time for the applicable loan market.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Beneficial Ownership Certification” means, if the Borrower qualifies as a “legal entity customer” within the meaning of the Beneficial Ownership Regulation, a certification of beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230, as amended.
“BHC Act Affiliate” has the meaning specified in Section 9.21(b).
“Borrower” has the meaning specified in the recital of parties to this Agreement.
“Borrower Party or Borrower Parties” means the Loan Parties and the owners of the Unencumbered Assets, without duplication.
“Borrower’s Account” means the account of the Borrower maintained by the Borrower with Citibank N.A. at its office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, ABA No. 000000000, Account No. 4991074200 or such other account as the Borrower shall specify in writing to the Administrative Agent.
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“Borrowing” means a borrowing consisting of simultaneous Advances of the same Type made by the Lenders.
“Business Day” means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.
“Capital Expenditure Reserve” means, with respect to any Asset at any date of determination, $0.25 times the total number of rentable square feet of such Asset, provided that with respect to any Asset that is a Joint Venture Asset, the Capital Expenditure Reserve shall be equal to the JV Pro Rata Share of such amount.
“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.
“Capitalized Value” means, in the case of any Asset, the Adjusted Net Operating Income of such Asset divided by 6.75%.
“Cash Equivalents” means any of the following: (a) readily marketable obligations issued or directly and fully guaranteed or insured by the Government of the United States or any agency or instrumentality thereof with maturities of not greater than 360 days from the date of acquisition thereof, provided that the full faith and credit of the Government of the United States is pledged in support thereof, (b) certificates of deposit of or time deposits with any commercial bank that is a Lender or a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof (or the District of Columbia) and has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not greater than 90 days from the date of acquisition thereof, (c) commercial paper issued by any corporation organized under the laws of any State of the United States and rated at least “Prime‑1” (or the then equivalent grade) by Xxxxx’x or “A‑1” (or the then equivalent grade) by S&P, in each case with maturities of not greater than 180 days from the date of acquisition thereof, or (d) 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 the highest rating obtainable from either Xxxxx’x or S&P, in and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) hereof.
“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended from time to time.
“CERCLIS” means the Comprehensive Environmental Response, Compensation and Liability Information System maintained by the U.S. Environmental Protection Agency.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Governmental Authority, including, without limitation, with respect to capital requirements.
“Change of Control” means the occurrence of any of the following: (a) any Person or two or more Persons acting in concert shall have acquired and shall continue to have following the date hereof beneficial ownership (within the meaning of Rule 13d‑3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Interests of the Parent (or other securities convertible into such Voting Interests) representing 50% or more of the combined voting power of all Voting Interests of the Parent; or (b) there is a change in the composition of the Parent’s Board of Directors over a period of 12 consecutive months (or less) such that a majority of Board members (rounded up to the nearest whole number)
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ceases to be comprised of individuals who either (i) have been Board members continuously since the beginning of such period or (ii) have been elected or nominated for election as Board members during such period by at least a majority of the Board members described in clause (i) who were still in office at the time such election or nomination was approved by the Board; or (c) the execution of one or more management agreements by the Parent with a third party such that the Parent becomes a so-called “externally managed REIT”; or (d) the Parent ceases to be the direct legal and beneficial owner of all of the general partnership interests in the Borrower; or (e) the Parent shall create, incur, assume or suffer to exist any Lien on the Equity Interests in the Borrower owned by it.
“Closing Date” means September 29, 2016.
“Commitment” means, with respect to any Lender at any time, the amount (whether funded or unfunded) (a) set forth opposite such Lender’s name on Schedule I hereto under the caption “Commitment” or (b) if such Lender has entered into one or more Assignment and Acceptances, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Section 10.07(d) as such Lender’s “Commitment”, as such amount may be reduced at or prior to such time pursuant to Section 2.05.
“Commitment Date” has the meaning specified in Section 2.17(b).
“Commitment Increase” has the meaning specified in Section 2.17(a).
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” means each notice, demand, communication, information, document and other material provided for hereunder or under any other Loan Document or otherwise transmitted between the parties hereto relating to this Agreement, the other Loan Documents, any Loan Party or its Affiliates, or the transactions contemplated by this Agreement or the other Loan Documents including, without limitation, all Approved Electronic Communications.
“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters but, for the avoidance of doubt, excluding any changes to material economic terms) that the Administrative Agent, in consultation with the Borrower, decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent, in consultation with the Borrower, determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent, in consultation with the Borrower, decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” means Other Connection Taxes imposed on or measured by net income (however denominated) or franchise Taxes or branch profits Taxes.
“Consent Request Date