FIRST POTOMAC REALTY TRUST 3,000,000 SHARES CONTROLLED EQUITY OFFERINGSM SALES AGREEMENT
Exhibit 1.1
3,000,000 SHARES
CONTROLLED EQUITY OFFERINGSM
November 11, 2008
CANTOR ▇▇▇▇▇▇▇▇▇▇ & CO.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
FIRST POTOMAC REALTY TRUST, a Maryland real estate investment trust corporation (the
“Company”), and FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, a Delaware limited
partnership, the sole general partner of which is the Company (the “Operating
Partnership”), confirm their agreement (this “Agreement”) with Cantor ▇▇▇▇▇▇▇▇▇▇ & Co.
(“CF&Co”), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time during the
term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue
and sell through CF&Co, acting as agent and/or principal, up to 3,000,000 shares (the
“Shares”) of the Company’s common shares of beneficial interest, par value $0.001 per share
(the “Common Shares”). Notwithstanding anything to the contrary contained herein, the
parties hereto agree that compliance with the limitation set forth in this Section 1 on the
number of Shares issued and sold under this Agreement shall be the sole responsibility of the
Company, and CF&Co shall have no obligation in connection with such compliance. The issuance and
sale of Shares through CF&Co will be effected pursuant to the Registration Statement (as defined
below) filed by the Company and declared effective by the Securities and Exchange Commission (the
“Commission”), although nothing in this Agreement shall be construed as requiring the
Company to use the Registration Statement to issue the Shares.
The Company has filed, in accordance with the provisions of the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively, the “Securities Act”),
with the Commission a registration statement on Form S-3 (File No. 333-142147), as amended by
Post-Effective Amendment No. 1 filed on August 19, 2008, as amended by Post-Effective Amendment No.
1 filed on August 22, 2008, which contains a base prospectus (the “Base Prospectus”),
relating to certain securities, including the Shares to be issued from time to time by the Company,
and which incorporates by reference documents that the Company has filed or will file in accordance
with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a
prospectus supplement specifically relating to the Shares (the “Prospectus Supplement”) to
the base prospectus included as part of such registration statement. The
Company has furnished to CF&Co, for use by CF&Co, copies of the prospectus included as part of
such registration statement, as supplemented by the Prospectus Supplement, relating to the Shares.
Except where the context otherwise requires, such registration statement, as amended when it became
effective, including all documents filed as part thereof or incorporated by reference therein, and
including any information contained in a Prospectus (as defined below) subsequently filed with the
Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such
registration statement pursuant to Rule 430B of the Securities Act, is herein called the
“Registration Statement.” The Base Prospectus, including all documents incorporated
therein by reference, included in the Registration Statement, as it may be supplemented by the
Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most
recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities
Act, together with any “issuer free writing prospectus” (a “Free Writing Prospectus”), as
defined in Rule 433 of the Securities Act Regulations (“Rule 433”), relating to the Shares
that (i) is required to be filed with the Commission by the Company or (ii) is exempt from filing
pursuant to Rule 433(d)(5)(i) in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g), is herein called the “Prospectus.” Any reference herein to the
Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to
refer to and include the documents incorporated by reference or deemed to be incorporated by
reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the Commission deemed to be incorporated by
reference therein. For purposes of this Agreement, all references to the Registration Statement,
the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System
(“▇▇▇▇▇”).
2. Placements. Each time that the Company wishes to issue and sell the Shares
hereunder (each, a “Placement”), it will notify CF&Co by email notice (or other method
mutually agreed to in writing by the parties) containing the parameters in accordance with which it
desires the Shares to be sold, which shall at a minimum include the number of Shares to be issued
(the “Placement Shares”), the time period during which sales are requested to be made, any
limitation on the number of Shares that may be sold in any one day and any minimum price below
which sales may not be made (a “Placement Notice”), a form of which containing such minimum
sales parameters necessary is attached hereto as Schedule 1. The Placement Notice shall
originate from any of the individuals from the Company set forth on Schedule 2 (with a copy
to each of the other individuals from the Company listed on such schedule), and shall be addressed
to each of the individuals from CF&Co set forth on Schedule 2, as such Schedule 2
may be amended from time to time. The Placement Notice shall be effective upon receipt by CF&Co
unless and until (i) in accordance with the notice requirements set forth in Section 4,
CF&Co declines to accept the terms contained therein for any reason, in its sole discretion, (ii)
the entire amount of the Placement Shares have been sold, (iii) in accordance with the notice
requirements set forth in Section 4, the Company suspends or terminates the Placement
Notice, (iv) the Company issues a subsequent Placement Notice with parameters superseding those on
the earlier dated Placement Notice or (v) the Agreement has been terminated under the
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provisions of Section 11. The amount of any discount, commission or other
compensation to be paid by the Company to CF&Co in connection with the sale of the Placement Shares
shall be calculated in accordance with the terms set forth in Schedule 3. It is expressly
acknowledged and agreed that neither the Company nor CF&Co will have any obligation whatsoever with
respect to a Placement or any Placement Shares unless and until the Company delivers a Placement
Notice to CF&Co and CF&Co does not decline such Placement Notice pursuant to the terms set forth
above, and then only upon the terms specified therein and herein. In the event of a conflict
between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement
Notice will control.
3. Sale of Placement Shares by CF&Co. Subject to the terms and conditions herein set
forth, upon the Company’s issuance of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with
the terms of this Agreement, CF&Co, for the period specified in the Placement Notice, will use its
commercially reasonable efforts consistent with its normal trading and sales practices and
applicable state and federal laws, rules and regulations and the rules of the New York Stock
Exchange (the “Exchange”) to sell such Placement Shares up to the amount specified, and
otherwise in accordance with the terms of such Placement Notice. CF&Co will provide written
confirmation to the Company no later than the opening of the Trading Day (as defined below)
immediately following the Trading Day on which it has made sales of Placement Shares hereunder
setting forth the number of Placement Shares sold on such day, the compensation payable by the
Company to CF&Co pursuant to Section 2 with respect to such sales, and the Net Proceeds (as
defined below) payable to the Company, with an itemization of the deductions made by CF&Co (as set
forth in Section 5(a)) from the gross proceeds that it receives from such sales. After
consultation to the Company and subject to the terms of the Placement Notice, CF&Co may sell
Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined
in Rule 415 of the Securities Act, including without limitation sales made directly on the
Exchange, on any other existing trading market for the Shares or to or through a market maker.
After consultation with the Company and subject to the terms of the Placement Notice, CF&Co may
also sell Placement Shares in privately negotiated transactions. The Company acknowledges and
agrees that (i) there can be no assurance that CF&Co will be successful in selling Placement Shares
and (ii) CF&Co will incur no liability or obligation to the Company or any other person or entity
if it does not sell Placement Shares for any reason other than a failure by CF&Co to use its
commercially reasonable efforts consistent with its normal trading and sales practices to sell such
Placement Shares as required under this Section 3. For the purposes hereof, “Trading
Day” means any day on which the Company’s Common Shares are purchased and sold on the principal
market on which the Common Shares are listed or quoted.
4. Suspension of Sales. The Company or CF&Co may, upon notice (the “Suspension
Notice”) to the other party in writing (including by email correspondence to each of the
individuals of the other Party set forth on Schedule 2, if receipt of such correspondence
is actually acknowledged by any of the individuals to whom the notice is sent, other than via
auto-reply) or by telephone (confirmed immediately by verifiable facsimile transmission or email
correspondence to each of the individuals of the other Party set forth on Schedule 2),
suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or
impair
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either party’s obligations with respect to any Placement Shares sold hereunder prior to the
receipt of such notice. Each of the Parties agrees that no such notice under this Section
4 shall be effective against the other unless it is made to one of the individuals named on
Schedule 2 hereto, as such Schedule may be amended from time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the applicable
Placement Notice, settlement for sales of Placement Shares will occur on the third (3rd)
Trading Day (or such earlier day as is industry practice for regular-way trading) following the
date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to
be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the
“Net Proceeds”) will be equal to the aggregate sales price received by CF&Co at which such
Placement Shares were sold, after deduction for (i) CF&Co’s commission, discount or other
compensation for such sales payable by the Company pursuant to Section 2 hereof, (ii) any
other amounts due and payable by the Company to CF&Co hereunder pursuant to Section 7(h)
(Expenses) hereof and (iii) any documented transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales.
(b) Delivery of Placement Shares. On or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Placement Shares being sold
by crediting CF&Co’s or its designee’s account (provided CF&Co shall have given the Company written
notice of such designee prior to the Settlement Date) at The Depository Trust Company through its
Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually
agreed upon by the parties hereto which in all cases shall be freely tradeable, transferable,
registered shares in good deliverable form. On each Settlement Date, CF&Co will deliver the
related Net Proceeds in same-day funds to an account designated by the Company on, or prior to, the
Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable),
defaults in its obligation to deliver Placement Shares on a Settlement Date, the Company agrees
that in addition to and in no way limiting the rights and obligations set forth in Section
9(a) (Indemnification and Contribution) hereto, it will (i) hold CF&Co harmless against any
loss, claim, damage, or expense (including reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company and (ii) pay to CF&Co any
commission, discount or other compensation to which it would otherwise have been entitled absent
such default.
6. Representations and Warranties of the Company and the Operating Partnership. The
Company and the Operating Partnership jointly and severally represent and warrant to, and agree
with, CF&Co that as of the date of this Agreement and as of each Representation Date (as defined in
Section 7(n) below) on which a certificate is required to be delivered pursuant to
Section 7(n) of this Agreement and as of each Applicable Time (as defined in
Section 20), as the case may be:
(a) Compliance with Registration Requirements. The Registration Statement has been
filed with the Commission under the Securities Act and declared effective by the Commission under
the Securities Act. The Company has complied with all requests of the
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Commission for additional or supplemental information. No stop order suspending the
effectiveness of the Registration Statement is in effect and no proceedings for such purpose have
been instituted or are pending or, to the Company’s knowledge, are contemplated or threatened by
the Commission. The Company satisfied all applicable requirements for the use of Form S-3 under the
Securities Act when the Registration Statement was filed.
The Commission has not issued an order preventing or suspending the use of the Base Prospectus, any
Free Writing Prospectus or the Prospectus relating to the proposed offering of the Shares and no
proceedings for such purpose have been instituted or are pending or, to the Company’s knowledge,
are contemplated or threatened by the Commission. The Prospectus delivered to CF&Co for use in
connection with the offering of Shares was, at the time of such delivery, identical to the
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T. At the respective times each part of the Registration
Statement and each amendment thereto became effective or was deemed effective, as the case may be,
the Registration Statement complied and will comply in all material respects with the Securities
Act and did not and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading. The immediately preceding sentence does not apply to statements in or omissions from
the Registration Statement or any amendments or supplements thereto based upon and in conformity
with written information furnished to the Company by CF&Co specifically for use therein.
(b) Offering Materials Furnished to CF&Co. The Company has delivered to CF&Co one
complete copy of the Registration Statement and of each consent of experts filed as a part thereof,
and conformed copies of the Registration Statement (without exhibits), and the Prospectus, as
amended or supplemented, in such quantities and at such places as CF&Co has reasonably requested.
(c) Prospectus. Neither the Prospectus nor any amendments or supplements thereto, at
the time the Prospectus or any such amendment or supplement was issued, as of the date hereof, the
Applicable Time and at each Representation Date, as the case may be, included or will include an
untrue statement of a material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The foregoing sentence does not apply to statements in or omissions from the
Prospectus or any amendments or supplements thereto based upon and in conformity with written
information furnished to the Company by CF&Co specifically for use therein.
(d) Incorporated Documents. Each document incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus heretofore filed, at the time it was or
hereafter is filed with the Commission conformed and will conform when filed in all material
respects with the requirements of the Exchange Act and the rules and regulations thereunder; no
such document when it was filed (or, if an amendment with respect to any such document was filed,
when such amendment was filed), contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading; and no such document, when it is filed, will
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contain an untrue statement of a material fact or will omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not misleading.
(e) Free Writing Prospectuses. Each Free Writing Prospectus, as of its issue date and
as of each Applicable Time (as defined in Section 20 below), did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information contained
in the Registration Statement or the Prospectus, including any incorporated document deemed to be a
part thereof that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by CF&Co specifically for use therein.
(f) Capitalization and Other Capital Stock Matters. The authorized capital stock of
the Company is as set forth in the Registration Statement and the Prospectus. The number of the
Company’s issued and outstanding Common Shares is as set forth in the Registration Statement and
the Prospectus. The Common Shares (including the Shares) conform in all material respects to the
description thereof contained in the Registration Statement and the Prospectus. All of the issued
and outstanding Common Shares have been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with applicable federal and state securities laws.
None of the outstanding Common Shares was issued in violation of any preemptive rights, rights of
first refusal or other similar rights to subscribe for or purchase securities of the Company. The
Operating Partnership has not issued any security or other equity interest other than Units (as
defined below) and senior unsecured notes described in the Registration Statement and the
Prospectus. None of the Units in the Operating Partnership has been or will be issued or is owned
or held in violation of any preemptive right. The outstanding Units in the Operating Partnership
have been issued by the Operating Partnership in compliance with applicable federal and state
securities laws. There are no authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or debt securities convertible into
or exchangeable or exercisable for, any capital stock of the Company or any of the Subsidiaries
other than those described in the Registration Statement and the Prospectus. The descriptions of
the Company’s Equity Compensation Plan, and of the options or other awards granted thereunder, set
forth in the Registration Statement and the Prospectus fairly and accurately present the
information required to be shown with respect to such plan, options or other awards. Except as
described in the Registration Statement and the Prospectus or pursuant to the Company’s Equity
Compensation Plan, the Company has not sold or issued any Common Shares nor has the Operating
Partnership sold or issued any Units during the one-year period preceding the Applicable Time.
(g) Authorization of the Shares. The Shares to be purchased by CF&Co from the Company
have been duly authorized for issuance and sale pursuant to this Agreement and, when issued and
delivered against payment therefor as provided herein by the Company pursuant to this Agreement,
will be validly issued, fully paid and nonassessable.
(h) Organization and Good Standing of the Company and the Subsidiaries. The Company
has been duly organized and is validly existing as a real estate investment trust in good standing
with the State Department of Assessments and Taxation of the State of Maryland
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and has the trust power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and perform its obligations under
this Agreement. The entities set forth on Schedule 4 hereto are the only subsidiaries (as
defined in Rule 1-02(x) of Regulation S-X of the Securities Act) of the Company (each, including
the Operating Partnership, except where noted, a “Subsidiary” and, collectively, the
“Subsidiaries”). Each Subsidiary (i) that is a corporation has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the jurisdiction of its
incorporation and has corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, (ii) that is a limited liability company has
been duly organized and is validly existing as a limited liability company in good standing under
the laws of the jurisdiction of its organization and has limited liability company power and
authority to own, lease and operate its properties and to conduct its business as described in the
Prospectus and (iii) that is a limited partnership has been duly organized and is validly existing
as a limited partnership in good standing under the laws of the jurisdiction of its organization
and has the partnership power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus. The Operating Partnership has been duly organized and
is validly existing as a limited partnership in good standing under the laws of the jurisdiction of
its organization and has limited partnership power and authority to own, lease and operate its
properties, to conduct its business as described in the Prospectus and to enter into and perform
its obligations under this Agreement. Each of the Company and the Subsidiaries is duly qualified as
a foreign trust corporation, limited partnership or limited liability company, as the case may be,
to transact business and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a Material Adverse Change (as defined below). All of
the issued and outstanding capital stock of each Subsidiary that is a corporation has been duly
authorized and validly issued, is fully paid and nonassessable and, except as described in the
Prospectus, is owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, claim, restriction or encumbrance, and all of the issued
and outstanding membership interests of each Subsidiary that is a limited liability company, and
all of the partnership interests of each Subsidiary that is a limited partnership, have been duly
authorized and validly issued and are fully paid and, except as described in the Prospectus, are
owned by the Company, directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, claim, restriction or encumbrance. All of the issued and outstanding units
of partnership interest of the Operating Partnership (“Units”) have been duly authorized
and validly issued and are fully paid. As of the date of this Agreement, the Company is the sole
general partner of the Operating Partnership and owns Units representing an approximately 97.3%
interest in the Operating Partnership, free and clear of any security interest, mortgage, pledge,
lien, claim, restriction or encumbrance. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the Subsidiaries.
(i) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required. Neither the Company nor any of the Subsidiaries is (i) in violation of (A) its
declaration of trust, charter or bylaws, operating agreement, partnership agreement or other
organizational documents or (B) any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or the Subsidiaries except, in the case of clause (i)(B),
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for such violations as could not, individually or in the aggregate, result in a Material
Adverse Change, or (ii) in default (or, with the giving of notice or lapse of time or both, would
be in default) (“Default”) under any indenture, mortgage, loan or credit agreement, note,
contract, franchise, lease or other instrument to which the Company or any of the Subsidiaries is a
party or by which it or any of them may be bound, or to which any of the property or assets of the
Company or any of the Subsidiaries is subject (each, an “Existing Instrument”), except such
Defaults as would not, individually or in the aggregate, result in a Material Adverse Change. The
execution, delivery and performance of this Agreement by the Company and the Operating Partnership
and consummation of the transactions contemplated hereby and by the Registration Statement and the
Prospectus (i) will not result in any violation of the provisions of the (A) Amended and Restated
Declaration of Trust (the “Declaration of Trust”) or by-laws of the Company, (B) the
Certificate of Limited Partnership or Amended and Restated Agreement of Limited Partnership (the
“Partnership Agreement”) of the Operating Partnership or (C) other organizational documents
of the Company or any of the Subsidiaries, in each case as amended or as amended and restated
through the date hereof, (ii) will not conflict with or constitute a breach of, or a Default or
Debt Repayment Triggering Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to, or require the consent of any other party to, any Existing Instrument,
except such consents as have been obtained by the Company, and (iii) will not result in any
violation of any law, administrative regulation or administrative or court decree applicable to the
Company or any of the Subsidiaries, except, with respect to clauses (ii) and (iii), as would not
individually or in the aggregate result in a Material Adverse Change. No consent, approval,
authorization or other order of, or registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company’s execution, delivery and performance
of this Agreement and consummation of the transactions contemplated hereby and by the Registration
Statement and the Prospectus, except (A) such as have been obtained or made by the Company and are
in full force and effect, (B) under the Securities Act and applicable state securities or blue sky
laws, and (C) from the Financial Industry Regulatory Authority, Inc. (the “FINRA”). As
used herein, a “Debt Repayment Triggering Event” means any event or condition which gives,
or with the giving of notice or lapse of time or both would give, the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such indebtedness by the
Company or any of the Subsidiaries).
(j) No Material Actions or Proceedings. There are no legal or governmental actions,
suits or proceedings pending or, to the Company’s knowledge, threatened (i) against or affecting
the Company or any of the Subsidiaries or (ii) which has as the subject thereof any officer or
trustee or director of, or property owned or leased by, the Company or any of the Subsidiaries that
would result in a Material Adverse Change. No material labor dispute with the employees of the
Company or any of the Subsidiaries exists or, to the Company’s knowledge, is threatened or
imminent.
(k) The Sales Agreement. The Company has the trust power to enter into this Agreement
and to perform its obligations and consummate the transactions contemplated herein. The Company has
the trust power to issue, sell and deliver the Shares as provided herein. This Agreement has been
duly authorized, executed and delivered by the Company and constitutes the
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valid and binding agreement of the Company enforceable against the Company in accordance with
its terms, except to the extent that the indemnification and contribution provisions set forth in
Section 9 of this Agreement may be limited by the federal and state securities laws and
public policy consideration in respect thereof, and except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforceability of
creditors’ rights generally. The Operating Partnership has the full legal right, power and
authority to enter into this Agreement and to perform its obligations and consummate the
transactions contemplated herein. This Agreement has been duly authorized, executed and delivered
by the Operating Partnership and constitutes the valid and binding agreement of the Operating
Partnership enforceable against the Operating Partnership in accordance with its terms, except to
the extent that the indemnification and contribution provisions set forth in Section 9 of
this Agreement may be limited by federal and state securities laws and public policy considerations
in respect thereof, and except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforceability of creditors’ rights generally.
(l) Partnership Agreement. The Amended and Restated Agreement of Limited Partnership
of the Operating Partnership, including all amendments thereto (the “Partnership
Agreement”), has been duly and validly authorized, executed and delivered by or on behalf of
the partners of the Operating Partnership and constitutes a valid and binding agreement of the
parties thereto, enforceable in accordance with its terms, except to the extent that enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
enforceability of creditors’ rights generally.
(m) No Applicable Registration or Other Similar Rights. There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly satisfied or waived.
(n) Independent Accountants. KPMG LLP, which has expressed its opinion with respect to
the financial statements (which term as used in this Agreement includes the related notes and
schedules thereto) included or incorporated by reference in the Registration Statement and the
Prospectus, is an independent registered public accounting firm with respect to the Company as
required by the Securities Act, the Exchange Act and the rules and regulations of the Public
Company Accounting Oversight Board.
(o) Preparation of the Financial Statements. The financial statements included or
incorporated by reference in the Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company and the Subsidiaries as of and at the dates
indicated and the results of their operations and cash flows for the periods specified. Any
supporting schedules included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated therein. Such financial statements
and supporting schedules have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis throughout the periods involved, except as may
be expressly stated in the related notes thereto, and are in compliance with Regulation S-X
promulgated under the Securities Act. The amounts incorporated by reference in
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the Registration Statement and the Prospectus under the caption “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” are accurately computed, fairly present
the information shown therein and have been determined on a basis consistent with the financial
statements incorporated by reference in the Registration Statement and the Prospectus. No other
financial statements or supporting schedules are required under applicable law or the rules and
regulations of the Commission to be included or incorporated by reference in the Registration
Statement and the Prospectus. The financial data set forth or incorporated by reference in the
Registration Statement and the Prospectus under the caption “Selected Financial Data” fairly
presents the information set forth therein on a basis consistent with that of the financial
statements contained or incorporated by reference in the Registration Statement and the Prospectus
when read in conjunction with the textual information included in that section.
(p) Internal Controls and Procedures. The Company has established and maintains
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that
are designed to ensure that information required to be disclosed by the Company in the reports that
it files or submits under the Exchange Act is recorded, processed, summarized and reported, within
the time periods specified in the Commission’s rules and forms and is accumulated and communicated
to the Company’s management, including its chief executive officer and chief financial officer, or
persons performing similar functions, as appropriate to allow timely decisions regarding required
disclosure; and the Company maintains a system of internal control over financial reporting
sufficient to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted
accounting principles and which includes policies and procedures that (i) pertain to the
maintenance of records that in reasonable detail accurately and fairly reflect the transactions and
dispositions of the assets of the Company, (ii) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in accordance with generally
accepted accounting principles and that receipts and expenditures of the Company are being made
only in accordance with the authorization of management, and (iii) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisitions, use or dispositions of
assets that could have a material effect on the financial statements. The Company’s disclosure
controls and procedures have been evaluated for effectiveness as of the end of the period covered
by the Company’s most recently filed quarterly report on Form 10-Q which precedes the date of the
Prospectus and were effective in all material respects to perform the functions for which they were
established. Based on the most recent evaluation of its internal control over financial reporting,
the Company was not aware of (i) any material weaknesses in the design or operation of internal
control over financial reporting or (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in the registrant’s internal control over
financial reporting. The Company is not aware of any change in its internal control over financial
reporting that has occurred during its most recent fiscal quarter that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(q) No Material Adverse Change. Except as otherwise disclosed in or contemplated by
the Registration Statement and the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus: (i) there has been no
material adverse change, or any development that could reasonably be expected to
10
result in a material adverse change, in the financial condition or in the earnings, business
or operations or anticipated financial results for the most recently completed fiscal quarter,
whether or not arising from transactions in the ordinary course of business, of the Company and the
Subsidiaries (as defined below), considered as one enterprise (any such change or development is
called a “Material Adverse Change”); (ii) the Company and the Subsidiaries, considered as
one enterprise, have not incurred any material liability or obligation, indirect, direct or
contingent, not in the ordinary course of business, nor entered into any material transaction or
agreement not in the ordinary course of business; (iii) there has been no material casualty loss or
condemnation or other material adverse event with respect to any of the real properties or
interests in real properties owned by the Company and the Subsidiaries or the real properties
described as being under contract in the Registration Statement and the Prospectus; (iv) there has
been no change in the capital stock, long-term debt or short-term borrowings of the Company and the
Subsidiaries on a consolidated basis, except for borrowings under the Company’s line of credit in
the ordinary course of business, consistent with past practice, and (v) there has been no dividend
or distribution of any kind declared, paid or made by the Company or, except for dividends or
distributions paid to the Company or the Subsidiaries, any of the Subsidiaries on any class of
capital stock or other equity interests, or any repurchase or redemption by the Company or any of
the Subsidiaries of any class of capital stock or other equity interests. The properties currently
owned by the Company’s Subsidiaries are referred to collectively herein as the “Properties”
and individually as a “Property.”
(r) Exchange Act Registration and Filings; Stock Exchange Listing. The Common Shares
are registered pursuant to Section 12(b) of the Exchange Act and have been approved for listing on
the Exchange. The Shares have been approved for listing on the Exchange, subject only to official
notice of issuance. The Company has taken no action designed to terminate the registration of the
Shares under the Exchange Act or cause the delisting of any such securities from the Exchange, nor
has the Company received any notification that the Commission or the Exchange is contemplating
terminating such registration or listing.
(s) Distribution of Offering Material by the Company. The Company has not distributed
and will not distribute any written offering material in connection with the offering and sale of
the Shares other than the Prospectus and the Registration Statement. The Company will file with
the Commission any Free Writing Prospectuses in the time and manner required under Rule 433(d)
under the Securities Act.
(t) Stabilization or Manipulation. Other than excepted activity pursuant to
Regulation M under the Exchange Act, the Company has not taken and will not take, directly or
indirectly, any action that constituted, or any action designed to, or that might reasonably be
expected to cause or result in or constitute stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares or for any other purpose.
(u) Tax Law Compliance. The Company and the Subsidiaries have timely filed all
necessary federal, state and foreign income and franchise tax returns or have properly requested
extensions thereof and have paid all taxes required to be paid by them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of them. The Company has made
adequate charges, accruals and reserves in the applicable financial
11
statements referred to in Section 6(o) above in respect of all federal, state and
foreign income and franchise taxes for all periods as to which the tax liability of the Company or
any of the Subsidiaries has not been finally determined.
(v) Related Party Transactions. There are no business relationships or related-party
transactions involving the Company or any of the Subsidiaries or any other person required to be
described in the Registration Statement and the Prospectus that have not been described as
required. Except as described in the Registration Statement and the Prospectus, there are no
outstanding loans or advances or guarantees of indebtedness by the Company or any of the
Subsidiaries to or for the benefit of any of the officers, directors, managers or trustees of the
Company or any of the Subsidiaries or any of the members of the families of any of them.
(w) Company Not an “Investment Company”. The Company has been advised of the rules and
requirements under the Investment Company Act of 1940, as amended (the “Investment Company
Act”). The Company is not, and after receipt of payment for the Shares will not be, required to
register as an “investment company” under the Investment Company Act and will conduct its business
in a manner so that it will not be required to register as an “investment company” under the
Investment Company Act.
(x) Properties. The Company and the Subsidiaries own or lease all such properties as
are necessary to its operations as now conducted or as proposed to be conducted as described in the
Registration Statement and the Prospectus. The Company and the Subsidiaries have good and
marketable title in fee simple to all of the Properties, free and clear of all security interests,
mortgages, pledges, liens, claims, restrictions or encumbrances of any kind, except such as (i) are
described in the Registration Statement and the Prospectus or (ii) do not, individually or in the
aggregate, materially adversely affect the value of such Property and do not interfere in any
material respect with the use made and proposed to be made of such Property. All security
interests, mortgages, pledges, liens, claims, restrictions and encumbrances of any kind on or
affecting the Properties or the other assets of the Company and the Subsidiaries that are required
to be disclosed in the Registration Statement and the Prospectus are disclosed therein. There is no
violation by the Company of any municipal, state or federal law, rule or regulation (including, but
not limited to, those pertaining to environmental matters) concerning the Properties or any part
thereof which would result in a Material Adverse Change. Each of the Properties complies with all
applicable zoning laws, ordinances, regulations and deed restrictions or other covenants and, if
and to the extent there is a failure to comply, such failure would not, individually or together
with all such other failures, result in a Material Adverse Change or result in a forfeiture or
reversion. Neither the Company nor any of the Subsidiaries has received any notice from any
governmental or regulatory authority or agency of any condemnation of or zoning change affecting
the Properties or any part thereof, and the Company does not know of any such condemnation or
zoning change which is threatened. No lessee of any portion of any of the Properties is in material
default under any of the leases governing such Properties and no event has occurred which, but for
the passage of time or giving of notice or both, would constitute a default under any of such
leases.
(y) All Necessary Permits, etc. The Company and the Subsidiaries possess such valid
and current certificates, authorizations, licenses, registrations and permits issued by
12
the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct
their respective businesses, except for those which the failure to possess, individually or in the
aggregate, could not result in a Material Adverse Change, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the revocation or modification of, or
noncompliance with, any such certificate, authorization, license, registration or permit which,
individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Change.
(z) Unlawful Contributions or Payments. Neither the Company, nor to the Company’s
knowledge, any Subsidiary, employee or agent of the Company or any of its Subsidiaries, has,
directly or indirectly, (i) made any unlawful contribution to any candidate for political office,
or failed to disclose fully any contribution in violation of law or (ii) made any payment to any
federal, state, local or foreign governmental official, or other person charged with similar public
or quasi-public duties, other than payments required or permitted by the laws of the United States
or any jurisdiction thereof or applicable foreign jurisdictions.
(aa) Compliance with Environmental Laws. Except as otherwise disclosed in the
Registration Statement and the Prospectus, or except as would not, individually or in the
aggregate, result in a Material Adverse Change, (i) the Company and the Subsidiaries are in
compliance with applicable Environmental Laws (as defined below), (ii) none of the Company, any of
the Subsidiaries or, to the Company’s knowledge, any other owners of any of the Properties at any
time or any other party, has at any time released (as such term is defined in CERCLA (as defined
below)) or otherwise disposed of Hazardous Materials (as defined below) on, to, in, under or from
the Properties or any other real properties previously owned, leased or operated by the Company or
any of the Subsidiaries, (iii) neither the Company nor any of the Subsidiaries intends to use the
Properties or any subsequently acquired properties, other than in compliance with applicable
Environmental Laws, (iv) neither the Company nor any of the Subsidiaries has received any notice
of, or has any knowledge of any occurrence or circumstance which, with notice or passage of time or
both, would give rise to a claim under or pursuant to any Environmental Law with respect to the
Properties, any other real properties previously owned, leased or operated by the Company or any of
the Subsidiaries, or the assets of the Company or the Subsidiaries described in the Registration
Statement and the Prospectus or arising out of the conduct of the Company or the Subsidiaries,
(v) none of the Properties are included or proposed for inclusion on the National Priorities List
issued pursuant to CERCLA by the United States Environmental Protection Agency or, to the Company’s
knowledge, proposed for inclusion on any similar list or inventory issued pursuant to any other
Environmental Law or issued by any other Governmental Authority (as defined below), (vi) none of
the Company, any of the Subsidiaries or agents or, to the Company’s knowledge, any other person or
entity for whose conduct any of them is or may be held responsible under any applicable
environmental law, has generated, manufactured, refined, transported, treated, stored, handled,
disposed, transferred, produced or processed any Hazardous Material at any of the Properties,
except in compliance with all applicable Environmental Laws, and has not transported or arranged
for the transport of any Hazardous Material from the Properties or any other real properties
previously owned, leased or operated by the Company or any of the Subsidiaries to another property,
except in compliance with all applicable Environmental Laws, (vii) no lien has been imposed on the
Properties by any Governmental Authority in connection with the presence on or off such
13
Property of any Hazardous Material, and (viii) none of the Company, any of the Subsidiaries
or, to the Company’s knowledge, any other person or entity for whose conduct any of them is or may
be held responsible under any applicable Environmental Law, has entered into or been subject to any
consent decree, compliance order, or administrative order with respect to the Properties or any
facilities or improvements or any operations or activities thereon.
As used herein, “Hazardous Material” shall include, without limitation, any flammable
materials, explosives, radioactive materials, hazardous materials, hazardous substances, hazardous
wastes, toxic substances or related materials, asbestos, petroleum, petroleum products and any
hazardous material as defined by any federal, state or local environmental law, statute, ordinance,
rule or regulation, including, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675 (“CERCLA”), the
Hazardous Materials Transportation Act, as amended, 49 U.S.C. §§ 1801-1819, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. §§ 6901-6992k, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001-11050, the Toxic Substances Control Act, 15
U.S.C. §§ 2601-2692, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136-136y,
the Clean Air Act, 42 U.S.C. §§ 7401-7642, the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. §§ 1251-1387, the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-26, and the
Occupational Safety and Health Act, 29 U.S.C. §§ 651-678, and any analogous state laws, as any of
the above may be amended from time to time and in the regulations promulgated pursuant to each of
the foregoing (including environmental statutes and laws not specifically defined herein)
(individually, an “Environmental Law” and collectively, the “Environmental Laws”)
or by any federal, state or local governmental authority having or claiming jurisdiction over the
properties of the Company and the Subsidiaries (a “Governmental Authority”).
(bb) Periodic Review of Costs of Environmental Compliance. In the ordinary course of
its business, the Company periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, and periodically identifies and
evaluates associated costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such reviews and the amount of its established
reserves, the Company has reasonably concluded that such associated costs and liabilities would
not, individually or in the aggregate, result in a Material Adverse Change.
(cc) Qualification as a REIT. The Company qualified to be taxed as a real estate
investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (collectively, the “Code”), for its
short taxable year ended December 31, 2003 and its taxable years ended December 31, 2004 through
December 31, 2007, and its organization and current and proposed method of operation will enable it
to continue to qualify as a REIT under the Code. No transaction or other event has occurred which
could cause the Company to not be able to qualify as a REIT for its taxable year ending
December 31, 2008 and in the future.
14
(dd) Intellectual Property Rights. The Company and the Subsidiaries own or possess
sufficient trademarks, trade names, patent rights, copyrights, licenses, approvals, trade secrets
and other similar rights (collectively, the “Intellectual Property Rights”) reasonably
necessary to conduct their businesses as now conducted or as proposed to be conducted as described
in the Registration Statement and the Prospectus; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse Change. Neither the Company nor
any of the Subsidiaries has received any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which, individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material Adverse Change.
(ee) Insurance. The Company and each of the Subsidiaries are insured by recognized and
reputable institutions with policies in such amounts and with such deductibles and covering such
risks as are generally deemed in the Company’s industry to be adequate and customary for their
businesses, including, but not limited to, policies covering real and personal property owned or
leased by the Company and the Subsidiaries against theft, damage, destruction, environmental
liabilities, acts of vandalism, terrorism, floods and, with respect to the Properties, defects in
title in amounts at least equal to the greater of (i) the cost of acquisition of such Property or
(ii) the replacement cost of the improvements located on such Property. The Company has no reason
to believe that it or any of the Subsidiaries will not be able (i) to renew its existing insurance
coverage as and when such policies expire or (ii) to obtain reasonably comparable coverage from
similar institutions as may be necessary or appropriate to conduct its business as now conducted or
as proposed to be conducted as described in the Prospectus and at a cost that would not result in a
Material Adverse Change.
(ff) ERISA Compliance. The Company and any “employee benefit plan” (as defined under
the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by the
Company or its ERISA Affiliates (as defined below) are in compliance in all material respects with
ERISA. “ERISA Affiliate” means, with respect to the Company, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the Code of which the Company is a
member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to
occur with respect to any “employee benefit plan” established or maintained by the Company or any
of its ERISA Affiliates. No “employee benefit plan” established or maintained by the Company or any
of its ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of
unfunded benefit liabilities” (as defined under ERISA). Neither the Company nor any of its ERISA
Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any “employee benefit plan” or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each “employee benefit plan” established or
maintained by the Company or any of its ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is a prototype plan and the sponsor of the prototype plan document has
received a favorable determination letter from the Internal Revenue Service of the United States
that such plan document is so qualified and to the Company’s knowledge, nothing has occurred,
whether by action or failure to act, which would cause the loss of such qualification.
15
(gg) Labor and Employment. The Company and its Subsidiaries have complied and will
comply in all material respects with wage and hour determinations issued by the U.S. Department of
Labor under the Service Contract Act of 1965 and the Fair Labor Standards Act in paying its
employees’ salaries, fringe benefits and other compensation for the performance of work or other
duties in connection with contracts with the U.S. government, except where the failure to do so
would not result in Material Adverse Change, and have complied and will comply in all material
respects with the requirements of the Americans with Disabilities Act of 1990, the Family and
Medical Leave Act of 1993, the Civil Rights Act of 1964 (Title VII), the National Labor Relations
Act, the Vietnam Era Veteran’s Readjustment Act, the Age Discrimination in Employment Act, as
amended by the Older Workers’ Benefit Protection Act, and federal, state and local labor laws, each
as amended except where the failure to comply with any such requirements has not, and will not,
result in a Material Adverse Change.
(hh) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Compliance. The principal executive officer and principal
financial officer of the Company have made all certifications required by Sections 302 and 906 of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith
(the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) with respect to all reports, schedules, forms, statements and
other documents required to be filed by it with the Commission, and the statements contained in any
such certification are complete and correct. The Company, and to the Company’s knowledge, each of
the Company’s directors or officers, in their capacities as such, are in compliance in all material
respects with all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(ii) Brokers and Finders. Neither the Company nor any Subsidiary has incurred any
liability for a fee, commission or other compensation on account of the employment of a broker or
finder in connection with the transactions contemplated by this Agreement other than as
contemplated hereby.
(jj) Purchase and Sale of Common Shares by CF&Co. The Company acknowledges and agrees
that CF&Co has informed the Company that CF&Co may, to the extent permitted under the Securities
Act and the Exchange Act, purchase and sell shares of Common Shares for its own account while this
Agreement is in effect; provided, that (i) no such purchase or sales shall take place while a
Placement Notice is in effect (except to the extent CF&Co may engage in sales of Placement Shares
purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity)
and (ii) the Company shall not be deemed to have authorized or consented to any such purchases or
sales by CF&Co.
(kk) Company Not Ineligible Issuer. As of the date of the execution and delivery of
this Agreement (with such date being used as the determination date for purposes of this clause),
the Company was not and is not an “ineligible issuer” (as defined in Rule 405 under the Securities
Act), without taking account of any determination by the Commission pursuant to Rule 405 under the
Securities Act that it is not necessary that the Company be considered an ineligible issuer.
(ll) Exhibits; Material Contracts. There are no contracts or other documents required
to be described in the Prospectus or to be filed as exhibits to the Registration Statement
16
which have not been described or filed as required. The contracts so described in the
Prospectus to which the Company is a party have been duly authorized, executed and delivered by the
Company, constitute valid and binding agreements of the Company, and are enforceable against and,
to the Company’s knowledge by, the Company in accordance with their respective terms, except to the
extent that the indemnification and contribution provisions set forth in Section 9 of this
Agreement may be limited by the federal and state securities laws and public policy considerations
in respect thereof, and except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of creditors’ rights
generally. To the Company’s knowledge, no other party is in material breach of or material default
under any of such contracts.
(mm) Doing Business with Cuba. The Company is in compliance with all provisions of
Florida Statutes Section 517.075 and the regulations thereunder, relating to issuers doing business
with Cuba.
(nn) No Prohibition on Subsidiaries from Paying Dividends or Making Other
Distributions. Except as disclosed in the Registration Statement and the Prospectus, no
Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such Subsidiary’s capital stock or other equity
interests, from repaying to the Company any loans or advances to such Subsidiary from the Company
or from transferring any of such Subsidiary’s property or assets to the Company or any other
Subsidiary.
(oo) Officer’s Certificates. Any certificate signed by an officer of the Company and
delivered to CF&Co or to counsel for CF&Co shall be deemed to be a representation and warranty by
the Company to CF&Co as to the matters set forth therein.
(pp) Opinions. The Company and the Operating Partnership acknowledge that CF&Co and,
for purposes of the opinions to be delivered pursuant to Section 7 hereof, counsel to the
Company and counsel to CF&Co, will rely upon the accuracy and truthfulness of the foregoing
representations and hereby consents to such reliance.
7. Covenants of the Company. The Company and the Operating Partnership, jointly and
severally, covenant and agree with CF&Co that:
(a) Registration Statement Amendments; Payment of Fees. After the date of this
Agreement and during any period in which a Prospectus relating to any Placement Shares is required
to be delivered by CF&Co under the Securities Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will
notify CF&Co promptly of the time when any subsequent amendment to the Registration Statement,
other than documents incorporated by reference, has been filed with the Commission and/or has
become effective or any subsequent supplement to the Prospectus has been filed and of any comment
letter from the Commission or any request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon CF&Co’s request, any amendments or supplements to the
Registration Statement or Prospectus
17
that, in CF&Co’s reasonable judgment, may be necessary or advisable in connection with the
distribution of the Placement Shares by CF&Co (provided, however, that the failure of CF&Co to make
such request shall not relieve the Company of any obligation or liability hereunder, or affect
CF&Co’s right to rely on the representations and warranties made by the Company in this Agreement
other than to the extent any such amendment or supplement is necessary or advisable due to
information that must be disclosed strictly with regard to CF&Co); (iii) the Company will not file
any amendment or supplement to the Registration Statement or Prospectus, other than documents
incorporated by reference, relating to the Placement Shares unless a copy thereof has been
submitted to CF&Co within a reasonable period of time before the filing and CF&Co has not
reasonably objected thereto (provided, however, that the failure of CF&Co to make such objection
shall not relieve the Company of any obligation or liability hereunder, or affect CF&Co’s right to
rely on the representations and warranties made by the Company in this Agreement except to the
extent such objection would have been necessary or advisable due to information that must be
disclosed strictly with regard to CF&Co) and the Company will furnish to CF&Co at the time of
filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via ▇▇▇▇▇; and
(iv) the Company will cause each amendment or supplement to the Prospectus, other than documents
incorporated by reference, to be filed with the Commission as required pursuant to the applicable
paragraph of Rule 424(b) of the Securities Act (without reliance on Rule 424(b)(8) of the
Securities Act, the determination to file or not file any amendment or supplement with the
Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable
objections, shall be made exclusively by the Company).
(b) Notice of Commission Stop Orders. The Company will advise CF&Co, promptly after
it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or any
other order preventing or suspending the use of the Prospectus, of the suspension of the
qualification of the Placement Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose or any examination pursuant to
Section 8(e) of the Securities Act, or if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the offering of the Shares, and it will
promptly use its commercially reasonable efforts to prevent the issuance of any stop or other order
or to obtain its withdrawal if such a stop or other order should be issued.
(c) Delivery of Prospectus; Subsequent Changes. During any period in which a
Prospectus relating to the Placement Shares is required to be delivered by CF&Co under the
Securities Act with respect to a pending sale of the Placement Shares, (including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company
will comply with all requirements imposed upon it by the Securities Act, as from time to time in
force, so far as necessary to permit the continuance of the sale of the Placement Shares during
such period in accordance with the provisions hereof and the Prospectus, and to file on or before
their respective due dates all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14, 15(d) or any
other provision of or under the Exchange Act. If during such period any event occurs as a result
of which the Prospectus as then amended or
18
supplemented would include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the Company will promptly notify CF&Co
to suspend the offering of Placement Shares during such period and the Company will promptly amend
or supplement the Registration Statement or Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(d) Listing of Placement Shares. During any period in which the Prospectus relating
to the Placement Shares is required to be delivered by CF&Co under the Securities Act with respect
to a pending sale of the Placement Shares (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially
reasonable efforts to cause the Placement Shares to be listed on the Exchange and to qualify the
Placement Shares for sale under the securities laws of such jurisdictions as CF&Co reasonably
designates and to continue such qualifications in effect so long as required for the distribution
of the Placement Shares; provided, however, that the Company shall not be required in connection
therewith to qualify as a foreign entity or dealer in securities, or file a general consent to
service of process in any jurisdiction.
(e) Filings with the Exchange. The Company will timely file with the Exchange all
material documents and notices required by the Exchange of companies that have or will issue
securities that are traded on the Exchange.
(f) Delivery of Registration Statement and Prospectus. The Company will furnish to
CF&Co and its counsel (at the expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during
any period in which a Prospectus relating to the Shares is required to be delivered under the
Securities Act (including all documents filed with the Commission during such period that are
deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and
in such quantities as CF&Co may from time to time reasonably request and, at CF&Co’s request, will
also furnish copies of the Prospectus to each exchange or market on which sales of the Placement
Shares may be made; provided, however, that the Company shall not be required to furnish any
document (other than the Prospectus) to CF&Co to the extent such document is available on ▇▇▇▇▇.
(g) Earnings Statement. The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15 months after the end of the
Company’s current fiscal quarter, an earnings statement covering a 12-month period that satisfies
the provisions of Section 11(a) and Rule 158 of the Securities Act. “Earnings statement” and “make
generally available” will have the meanings contained in Rule 158 under the Securities Act.
(h) Expenses. The Company, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, in accordance with the provisions of Section 11
hereunder, will pay all expenses incident to the performance of its obligations
19
hereunder, including, but not limited to, expenses relating to (i) the preparation, printing
and filing of the Registration Statement and each amendment and supplement thereto, of each
Prospectus and of each amendment and supplement thereto, (ii) the preparation, issuance and
delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities
laws in accordance with the provisions of Section 7(d) of this Agreement, including filing
fees, (iv) the printing and delivery to CF&Co of copies of the Prospectus and any amendments or
supplements thereto, and of this Agreement, (v) the fees and expenses incurred in connection with
the listing or qualification of the Placement Shares for trading on the Exchange, and (vi) filing
fees and expenses, if any, of the Commission and the FINRA Corporate Financing Department.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares to be sold by it hereunder in accordance in all material respects with the statements under
the caption “Use of Proceeds” in the Prospectus. The Company will effect the issuance to the
Company by the Operating Partnership of a number of Units equal to the number of Shares sold
pursuant to this Agreement upon the Company’s contribution to the Operating Partnership of the
proceeds from the sale of the Shares.
(j) Notice of Other Sales. During the pendency of any Placement Notice given
hereunder, the Company shall provide CF&Co notice as promptly as reasonably possible before it
offers to sell, contracts to sell, sells, grants any option to sell or otherwise disposes of any
Common Shares (other than Placement Shares offered pursuant to the provisions of this Agreement) or
securities convertible into or exchangeable for Common Shares, warrants or any rights to purchase
or acquire Common Shares; provided, that such notice shall not be required in connection with the
(i) issuance, grant or sale of the Common Shares, options to purchase the Common Shares or the
Common Shares issuable upon the exercise of options or other equity awards pursuant to any stock
option, stock bonus or other stock or compensatory plan or arrangement described in the Prospectus,
(ii) the issuance of securities in connection with an acquisition, merger or sale or purchase of
assets of the Company or any Subsidiaries, (iii) the issuance or sale of the Common Shares pursuant
to any dividend reinvestment plan that the Company maintains or may adopt from time to time
provided the implementation of such is disclosed to CF&Co in advance, (iv) any of the Common Shares
issuable upon the redemption of outstanding Units in accordance with the Partnership Agreement, (v)
the issuance of Units by the Operating Partnership in exchange for properties and (vi) the issuance
of Common Shares in exchange for the Operating Partnership’s 4% Exchangeable Senior Notes due 2011.
(k) Change of Circumstances. The Company will, at any time during a fiscal quarter in
which the Company intends to tender a Placement Notice or sell Placement Shares, advise CF&Co
promptly after it shall have received notice or obtained knowledge thereof, of any information or
fact that would alter or affect in any material respect any opinion, certificate, letter or other
document to be provided to CF&Co pursuant to this Agreement.
(l) Due Diligence Cooperation. The Company and the Operating Partnership will
cooperate with any reasonable due diligence review conducted by CF&Co or its agents in connection
with the transactions contemplated hereby, including, without limitation, providing
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information and making available documents and senior officers, during regular business hours
and at the Company’s principal offices, as CF&Co may reasonably request.
(m) Required Filings Relating to Placement of Placement Shares. The Company agrees
that on such dates as the Securities Act shall require, the Company will (i) file a prospectus
supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities
Act, which prospectus supplement will set forth, within the relevant period, the amount of
Placement Shares sold through CF&Co, the Net Proceeds to the Company and the compensation payable
by the Company to CF&Co with respect to such Placement Shares, and (ii) deliver such number of
copies of each such prospectus supplement to each exchange or market on which such sales were
effected as may be required by the rules or regulations of such exchange or market.
(n) Representation Dates; Certificate. On or prior to the date that the first Shares
are sold pursuant to the terms of this Agreement and each time the Company (i) files the Prospectus
relating to the Placement Shares or amends or supplements the Registration Statement or the
Prospectus relating to the Placement Shares (other than a prospectus supplement filed in accordance
with Section 7(m) of this Agreement) by means of a post-effective amendment, sticker, or
supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Shares; (ii) files an annual report on Form
10-K under the Exchange Act; (iii) files its quarterly reports on Form 10-Q under the Exchange Act;
or (iv) files a report on Form 8-K containing amended financial information (other than an earnings
release, to “furnish” information pursuant to Items 2.02 or 7.01 of Form 8-K or to provide
disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassifications of certain
properties as discontinued operations in accordance with Statement of Financial Accounting
Standards No. 144) under the Exchange Act (each date of filing of one or more of the documents
referred to in clauses (i) through (iv) shall be a “Representation Date”);
the Company shall furnish CF&Co with a certificate, in the form attached hereto as Exhibit 7(n),
within three (3) Trading Days of any Representation Date if requested by CF&Co. The requirement to
provide a certificate under this Section 7(n) shall be waived for any Representation Date occurring
at a time at which no Placement Notice is pending, which waiver shall continue until the earlier to
occur of the date the Company delivers a Placement Notice hereunder (which for such calendar
quarter shall be considered a Representation Date) and the next occurring Representation Date;
provided, however, that such waiver shall not apply for any Representation Date on which the
Company files its annual report on Form 10-K. Notwithstanding the foregoing, if the Company
subsequently decides to sell Placement Shares following a Representation Date when the Company
relied on such waiver and did not provide CF&Co with a certificate under this Section 7(n), then
before the Company delivers the Placement Notice or CF&Co sells any Placement Shares, the Company
shall provide CF&Co with a certificate, in the form attached hereto as Exhibit 7(n), dated the date
of the Placement Notice.
(o) Legal Opinion. On or prior to the date that the first Shares are sold pursuant to
the terms of this Agreement, the Company shall cause to be furnished to CF&Co (i) a written opinion
of Hunton & ▇▇▇▇▇▇▇▇ LLP (“Company Counsel”), or other counsel satisfactory to CF&Co, in
form and substance satisfactory to CF&Co and its counsel, dated the date that the
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opinion is required to be delivered, substantially similar to the form attached hereto as
Exhibit 7(o)(1)(a), (ii) a letter of Company Counsel or other counsel satisfactory to
CF&Co, in form and substance satisfactory to CF&Co and its counsel, dated the date that the letter
is required to be delivered, substantially similar to the form attached hereto as
Exhibit 7(o)(1)(b) and (iii) a written opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel of
the Company (“General Counsel”), in form and substance satisfactory to CF&Co and its
counsel, dated the date that the opinion is required to be delivered, substantially similar to the
form attached hereto as Exhibit 7(o)(1)(c). Within three (3) Trading Days of each
Representation Date with respect to which the Company is obligated to deliver a certificate in the
form attached hereto as Exhibit 7(n) for which no waiver is applicable, the Company shall
cause to be furnished to CF&Co a letter of Company Counsel or other counsel satisfactory to CF&Co,
in form and substance satisfactory to CF&Co and its counsel, dated the date that the letter is
required to be delivered, substantially similar to the form attached hereto as
Exhibit 7(o)(1)(d) modified, as necessary, to relate to the Registration Statement and the
Prospectus as then amended or supplemented; provided, however, that in lieu of such letters for
subsequent Representation Dates, Company Counsel may furnish CF&Co with a letter (a “Reliance
Letter”) to the effect that CF&Co may rely on a prior letter delivered under this Section
7(o) to the same extent as if it were dated the date of such letter (except that statements in
such prior letter shall be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented at such Representation Date).
(p) Comfort Letter. On or prior to the date that the first Shares are sold pursuant
to the terms of this Agreement and within three (3) Trading Days of each Representation Date with
respect to which the Company is obligated to deliver a certificate in the form attached hereto as
Exhibit 7(n) for which no waiver is applicable, the Company shall cause its independent
accountants (and any other independent accountants whose report is included in the Registration
Statement or the Prospectus) to furnish CF&Co letters (the “Comfort Letters”), dated the
date the Comfort Letter is delivered, in form and substance satisfactory to CF&Co, (i) confirming
that they are an independent registered public accounting firm within the meaning of the Securities
Act, the Exchange Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of
such firm with respect to the financial information and other matters ordinarily covered by
accountants’ “comfort letters” to underwriters in connection with registered public offerings (the
first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort
Letter with any information that would have been included in the Initial Comfort Letter had it been
given on such date and modified as necessary to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter.
(q) Non-Delivery of Materials . Failure to deliver any of the certificates, opinion,
letters or comfort letters required by and at the times set forth in paragraphs (m),
(n), (o) or (p) above shall be deemed as the delivery by the Company of a
Suspension Notice.
(r) Market Activities. The Company will not, directly or indirectly, (i) take any
action designed to cause or result in, or that constitutes or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares to be
issued
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and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases
of the Shares to be issued and sold pursuant to this Agreement other than CF&Co; provided, however,
that the Company may bid for and purchase its Common Shares in accordance with Rule 10b-18 under
the Exchange Act.
(s) Insurance. The Company and Subsidiaries shall maintain, or cause to be
maintained, insurance in such amounts and covering such risks as is reasonable and customary for
companies engaged in similar businesses in similar industries.
(t) Compliance with Laws. The Company and each of its Subsidiaries shall use its
commercially reasonable efforts to maintain, or cause to be maintained, all material environmental
permits, licenses and other authorizations required by federal, state and local law in order to
conduct their businesses as described in the Prospectus, and the Company and each of its
Subsidiaries shall use its commercially reasonable efforts to conduct their businesses, or cause
their businesses to be conducted, in substantial compliance with such permits, licenses and
authorizations and with applicable environmental laws, except where the failure to maintain or be
in compliance with such permits, licenses and authorizations could not reasonably be expected to
result in a Material Adverse Change.
(u) REIT Treatment. The Company will use all commercially reasonable efforts to
enable the Company to continue to meet the requirements for qualification and taxation as a REIT
under the Code for subsequent tax years for so long as the Company’s Board of Trustees deems such
qualification and taxation to be in the best interests of the shareholders.
(v) Investment Company Act. The Company will use its commercially reasonable efforts
to conduct its affairs in such a manner so as to ensure that neither it nor the Operating
Partnership will be rquired, at any time prior to the termination of this Agreement, to register as
an “investment company” under the Investment Company Act, assuming no change in the Commission’s
current interpretation as to entities that are not required to register as an investment company.
(w) Securities Act and Exchange Act. The Company will use its commercially reasonable
efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange Act
as from time to time in force, so far as necessary to permit the continuance of sales of, or
dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus.
(x) No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405
under the Securities Act) approved in advance in writing by the Company and CF&Co in its capacity
as principal or agent hereunder, neither CF&Co nor the Company (including its agents and
representatives, other than CF&Co in its capacity as such) will, directly or indirectly, make, use,
prepare, authorize, approve or refer to any free writing prospectus relating to the Shares to be
sold by CF&Co as principal or agent hereunder.
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(y) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company and the Subsidiaries will use their reasonable
best efforts to comply with all effective applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and the rules and regulations promulgated in connection therewith.
(z) Transfer Agent. The Company shall maintain, at its expense, a registrar and
transfer agent for the Common Shares.
8. Conditions to CF&Co’s Obligations. The obligations of CF&Co hereunder with respect
to a Placement will be subject to the continuing accuracy and completeness of the representations
and warranties made by the Company and the Operating Partnership herein, to the due performance by
the Company and the Operating Partnership of their respective obligations hereunder, to the
completion by CF&Co of a due diligence review satisfactory to CF&Co in its reasonable judgment, and
to the continuing satisfaction (or waiver by CF&Co in its sole discretion) of the following
additional conditions:
(a) Registration Statement Effective. The Registration Statement shall be effective
and shall be available for (i) all sales of Placement Shares issued pursuant to all prior Placement
Notices and (ii) the sale of all Placement Shares contemplated to be issued by any Placement
Notice.
(b) No Material Notices. None of the following events shall have occurred and be
continuing: (i) receipt by the Company or any of its subsidiaries of any request for additional
information from the Commission or any other federal or state governmental authority during the
period of effectiveness of the Registration Statement, the response to which would require any
post-effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the
issuance by the Commission or any other federal or state governmental authority of any stop order
suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose; (iii) receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Placement Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the
occurrence of any event that makes any material statement made in the Registration Statement or the
Prospectus untrue in any material respect or that requires the making of any changes in the
Registration Statement, related Prospectus or such documents so that, in the case of the
Registration Statement, it will not contain any materially untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading and, that in the case of the Prospectus, it will not contain any materially
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) No Misstatement or Material Omission. CF&Co shall not have advised the Company
that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in CF&Co’s reasonable opinion is material, or omits to state a fact
that in CF&Co’s opinion is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
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(d) Material Changes. Except as contemplated in the Prospectus, there shall not have
been any material adverse change, on a consolidated basis, in the authorized capital stock of the
Company or the Operating Partnership or result in a Material Adverse Change, or any development
that could reasonably be expected to result in a Material Adverse Change, or any downgrading in or
withdrawal of the rating assigned to any of the Company’s or the Operating Partnership’s securities
(other than asset-backed securities) by any rating organization or a public announcement by any
rating organization that it has under surveillance or review its rating of any of the Company’s or
the Operating Partnership’s securities (other than asset-backed securities), the effect of which,
in the case of any such action by a rating organization described above, in the reasonable judgment
of CF&Co (without relieving the Company or the Operating Partnership of any obligation or liability
it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with
the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal Opinions and Letter. CF&Co shall have received the opinions of Company
Counsel and General Counsel and letter of Company Counsel, each as required to be delivered
pursuant Section 7(o) on or before the date on which such delivery of such opinion is
required pursuant to Section 7(o).
(f) Comfort Letter. CF&Co shall have received the Comfort Letter required to be
delivered pursuant Section 7(p) on or before the date on which such delivery of such
opinion is required pursuant to Section 7(p).
(g) Representation Certificate. CF&Co shall have received the certificate required to
be delivered pursuant to Section 7(n) on or before the date on which delivery of such
certificate is required pursuant to Section 7(n).
(h) No Suspension. Trading in the Shares shall not have been suspended on the
Exchange.
(i) Other Materials. On each date on which the Company is required to deliver a
certificate pursuant to Section 7(n), the Company and the Operating Partnership shall have
furnished to CF&Co such appropriate further information, certificates and documents as CF&Co may
have reasonably requested. All such opinions, certificates, letters and other documents shall have
been in compliance with the provisions hereof. The Company and the Operating Partnership shall
have furnished CF&Co with such conformed copies of such opinions, certificates, letters and other
documents as CF&Co shall have reasonably requested.
(j) Securities Act Filings Made. All filings with the Commission required by Rule 424
under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder
shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) Approval for Listing. The Placement Shares shall either have been (i) approved
for listing on the Exchange, subject only to notice of issuance, or (ii) the Company
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shall have filed an application for listing of the Placement Shares on the Exchange at, or
prior to, the issuance of any Placement Notice.
(l) No Termination Event. There shall not have occurred any event that would permit
CF&Co to terminate this Agreement pursuant to Section 11(a).
9. Indemnification and Contribution.
(a) Company and Operating Partnership Indemnification. The Company and the Operating
Partnership, jointly and severally, agree to indemnify and hold harmless CF&Co, the directors,
officers, partners, employees and agents of CF&Co and each person, if any, who (i) controls CF&Co
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is
controlled by or is under common control with CF&Co (a “CF&Co Affiliate”) from and against
any and all losses, claims, liabilities, expenses and damages (including, but not limited to, any
and all reasonable investigative, legal and other expenses incurred in connection with, and any
and all amounts paid in settlement (in accordance with Section 9(c)) of, any action, suit
or proceeding between any of the indemnified parties and any indemnifying parties or between any
indemnified party and any third party, or otherwise, or any claim asserted), as and when incurred,
to which CF&Co, or any such person, may become subject under the Securities Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based, directly or indirectly,
on (x) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus or in any application or other document executed by or on behalf of the
Company or the Operating Partnership or based on written information furnished by or on behalf of
the Company or the Operating Partnership filed in any jurisdiction in order to qualify the Shares
under the securities laws thereof or filed with the Commission, (y) the omission or alleged
omission to state in any such document a material fact required to be stated in it or necessary to
make the statements in it not misleading or (z) any breach by any of the indemnifying parties of
any of their respective representations, warranties and agreements contained in this Agreement;
provided, however, that this indemnity agreement shall not apply to the extent that such loss,
claim, liability, expense or damage arises from the sale of the Placement Shares pursuant to this
Agreement and is caused directly or indirectly by an untrue statement or omission made in reliance
upon and in conformity with written information relating to CF&Co and furnished to the Company by
CF&Co expressly for inclusion in any document as described in clause (x) of this Section
9(a). This indemnity agreement will be in addition to any liability that the Company or the
Operating Partnership might otherwise have.
(b) CF&Co Indemnification. CF&Co agrees to indemnify and hold harmless the Company,
its directors, each officer of the Company that signed the Registration Statement, the Operating
Partnership and each person, if any, who (i) controls the Company or the Operating Partnership
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or (ii) is
controlled by or is under common control with the Company or the Operating Partnership (a
“Company Affiliate”) against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 9(a), as incurred, but only with
26
respect to untrue statements or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendments thereto) or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information relating to CF&Co
and furnished to the Company by CF&Co expressly for inclusion in any document as described in
clause (x) of Section 9(a).
(c) Procedure. Any party that proposes to assert the right to be indemnified under
this Section 9 will, promptly after receipt of notice of commencement of any action against
such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 9, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such indemnifying party will
not relieve the indemnifying party from (i) any liability that it might have to any indemnified
party otherwise than under this Section 9 and (ii) any liability that it may have to any
indemnified party under the foregoing provision of this Section 9 unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be entitled to participate
in and, to the extent that it elects by delivering written notice to the indemnified party promptly
after receiving notice of the commencement of the action from the indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense of the action, with counsel
reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to
the indemnified party of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except as provided below and except
for the reasonable costs of investigation subsequently incurred by the indemnified party in
connection with the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (i) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the indemnifying
party, (iii) a conflict or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case the indemnifying
party will not have the right to direct the defense of such action on behalf of the indemnified
party) or (iv) the indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one
separate firm admitted to practice in such jurisdiction at any one time for all such indemnified
party or parties. All such fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. An indemnifying party will not, in any event, be
liable for any settlement of any action or claim effected without its written consent. No
indemnifying party shall, without the prior written consent of each indemnified party, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated by this Section 9
27
(whether or not any indemnified party is a party thereto), unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all liability arising
or that may arise out of such claim, action or proceeding.
(d) Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing paragraphs of this
Section 9 is applicable in accordance with its terms but for any reason is held to be
unavailable from the Company, the Operating Partnership or CF&Co, the Company and CF&Co will
contribute to the total losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company or the Operating Partnership from persons other than CF&Co,
such as persons who control the Company or the Operating Partnership within the meaning of the
Securities Act, officers of the Company who signed the Registration Statement and directors of the
Company, who also may be liable for contribution) to which the Company, the Operating Partnership
and CF&Co may be subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Operating Partnership, on the one hand, and CF&Co, on the
other. The relative benefits received by the Company and the Operating Partnership, on the one
hand, and CF&Co, on the other, shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Placement Shares (before deducting expenses) received by the Company
bear to the total compensation received by CF&Co from the sale of Placement Shares on behalf of the
Company. If, but only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion as is appropriate
to reflect not only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company and the Operating Partnership, on the one hand, and CF&Co, on the
other, with respect to the statements or omission that resulted in such loss, claim, liability,
expense or damage, or action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Operating Partnership, on the one hand, or CF&Co, on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Operating Partnership and CF&Co agree that it
would not be just and equitable if contributions pursuant to this Section 9(d) were to be
determined by pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense, or damage, or action in
respect thereof, referred to above in this Section 9(d) shall be deemed to include, for the
purpose of this Section 9(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim to the
extent consistent with Section 9(c) hereof. Notwithstanding the foregoing provisions of
this Section 9(d), CF&Co shall not be required to contribute any amount in excess of the
commissions received by it under this Agreement and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 9(d), any person who controls a party to this Agreement within the
28
meaning of the Securities Act, and any officers, directors, partners, employees or agents of
CF&Co, will have the same rights to contribution as that party, and each officer of the Company who
signed the Registration Statement will have the same rights to contribution as the Company, subject
in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt
of notice of commencement of any action against such party in respect of which a claim
for contribution may be made under this Section 9(d), will notify any such party or
parties from whom contribution may be sought, but the omission to so notify will not relieve that
party or parties from whom contribution may be sought from any other obligation it or they may have
under this Section 9(d) except to the extent that the failure to so notify such other party
materially prejudiced the substantive rights or defenses of the party from whom contribution is
sought. Except for a settlement entered into pursuant to the last sentence of Section 9(c)
hereof, no party will be liable for contribution with respect to any action or claim settled
without its written consent if such consent is required pursuant to Section 9(c) hereof.
10. Representations and Agreements to Survive Delivery. The indemnity and
contribution agreements contained in Section 9 of this Agreement and all representations
and warranties of the Company and the Operating Partnership herein or in certificates delivered
pursuant hereto shall survive, as of their respective dates, regardless of (i) any investigation
made by or on behalf of CF&Co, any controlling persons, or the Company or the Operating Partnership
(or any of their respective officers, directors or controlling persons), (ii) delivery and
acceptance of the Placement Shares and payment therefor or (iii) any termination of this Agreement.
11. Termination.
(a) CF&Co shall have the right by giving notice as hereinafter specified at any time to
terminate this Agreement if (i) any Material Adverse Change, or any development that could
reasonably be expected to result in a Material Adverse Change has occurred, that, in the reasonable
judgment of CF&Co, may materially impair the ability of CF&Co to sell the Placement Shares
hereunder; (ii) the Company or the Operating Partnership shall have failed, refused or been unable
to perform any agreement on its part to be performed hereunder; provided, however, in the case of
any failure of the Company to deliver (or cause another person to deliver) any certification,
opinion, or letter required under Sections 7(n), 7(o), or 7(p),
CF&Co’s right to terminate shall not arise unless such failure to deliver (or cause to be
delivered) continues for more than thirty (30) days from the date such delivery was required; or
(iii) any other condition of CF&Co’s obligations hereunder is not fulfilled; or (iv) any suspension
or limitation of trading in the Placement Shares or in securities generally on the Exchange shall
have occurred. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 7(h) (Expenses), Section 9 (Indemnification),
Section 10 (Survival of Representations), Section 16 (Applicable Law; Consent to
Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall remain in full force and
effect notwithstanding such termination.
(b) The Company and the Operating Partnership shall have the right, by giving ten (10) days’
notice as hereinafter specified to terminate this Agreement in their sole discretion at any time
after the date of this Agreement. Any such termination shall be without
29
liability of any party to
any other party except that the provisions of Sections 7(h), 9, 10,
16 and 17 hereof shall remain in full force and effect notwithstanding such
termination.
(c) CF&Co shall have the right, by giving ten (10) days’ notice as hereinafter specified to
terminate this Agreement in its sole discretion at any time after the date of this
Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Sections 7(h), 9, 10, 16 and
17 hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless earlier terminated pursuant to this Section 11, this Agreement shall
automatically terminate upon the issuance and sale of all of the Placement Shares through CF&Co on
the terms and subject to the conditions set forth herein; provided that the provisions of
Sections 7(h), 9, 10, 16 and 17 hereof shall remain in full
force and effect notwithstanding such termination.
(e) This Agreement shall remain in full force and effect unless terminated pursuant to
Sections 11(a), (b), (c), or (d) above or otherwise by mutual
agreement of the parties; provided, however, that any such termination by mutual agreement shall in
all cases be deemed to provide that Sections 7(h), 9, 10, 16 and
17 shall remain in full force and effect.
(f) Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided, however, that such termination shall not be effective until the close of
business on the date of receipt of such notice by CF&Co or the Company, as the case may be. If
such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this Agreement.
12. Notices. All notices or other communications required or permitted to be given by
any party to any other party pursuant to the terms of this Agreement shall be in writing, unless
otherwise specified in this Agreement, and if sent to CF&Co, shall be delivered to CF&Co at Cantor
▇▇▇▇▇▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
ITD-Investment Banking, with copies to ▇▇▇▇ ▇▇▇▇▇, Managing Director, at the same address, and DLA
Piper LLP (US), ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇; or if sent to the Company or the Operating Partnership, shall be delivered to
First Potomac Realty Trust, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax no.
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, with a copy to Hunton & ▇▇▇▇▇▇▇▇ LLP, Riverfront
Plaza, East Tower, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Each party to this Agreement may change such address for notices
by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally or by
verifiable facsimile transmission (with an original to follow) on or before 4:30 p.m., New York
City time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business
Day, (ii) on the next Business Day after timely delivery to a nationally recognized overnight
courier and (iii) on the Business Day actually received if deposited in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid). For purposes of this Agreement,
“Business Day” shall mean
30
any day on which the Exchange and commercial banks in the City of
New York are open for business.
13. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the Company, the Operating Partnership and CF&Co and their respective
successors and the affiliates, controlling persons, officers and directors referred to in
Section 9 hereof. References to any of the parties contained in this Agreement shall be
deemed to include the successors and permitted assigns of such party. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may
assign its rights or obligations under this Agreement without the prior written consent of the
other party; provided, however, that CF&Co may assign its rights and obligations hereunder to an
affiliate of CF&Co without obtaining the Company’s consent.
14. Adjustments for Stock Splits. The parties acknowledge and agree that all
stock-related numbers contained in this Agreement shall be adjusted to take into account any stock
split, stock dividend or similar event effected with respect to the Shares.
15. Entire Agreement; Amendment; Severability. This Agreement (including all
schedules and exhibits attached hereto and Placement Notices issued pursuant hereto) constitutes
the entire agreement and supersedes all other prior and contemporaneous agreements and
undertakings, both written and oral, among the parties hereto with regard to the subject matter
hereof. Neither this Agreement nor any term hereof may be amended except pursuant to a written
instrument executed by the Company and CF&Co. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or
unenforceable as written by a court of competent jurisdiction, then such provision shall be given
full force and effect to the fullest possible extent that it is valid, legal and enforceable, and
the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or
unenforceable term or provision was not contained herein, but only to the extent that giving effect
to such provision and the remainder of the terms and provisions hereof shall be in accordance with
the intent of the parties as reflected in this Agreement.
16. Applicable Law; Consent to Jurisdiction. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York without regard to the
principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan,
for the adjudication of any dispute hereunder or in connection with any transaction contemplated
hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by mailing a copy thereof
(certified or registered mail, return receipt requested) to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall constitute good and
sufficient
31
service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law.
17. Waiver of Jury Trial. The Company, the Operating Partnership and CF&Co each
hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or any transaction contemplated hereby.
18. Absence of Fiduciary Relationship. The Company and the Operating Partnership
jointly and severally acknowledge and agree that:
(a) CF&Co has been retained solely to act as underwriter in connection with the sale of the
Shares that no fiduciary, advisory or agency relationship between the Company and CF&Co has been
created in respect of any of the transactions contemplated by this Agreement, irrespective of
whether CF&Co has advised or is advising the Company on other matters;
(b) each of the Company and the Operating Partnership is capable of evaluating and
understanding and understand and accept the terms, risks and conditions of the transactions
contemplated by this Agreement;
(c) each of the Company and the Operating Partnership has been advised that CF&Co and its
affiliates are engaged in a broad range of transactions which may involve interests that differ
from those of the Company or the Operating Partnership and that CF&Co has no obligation to disclose
such interests and transactions to the Company or the Operating Partnership by virtue of any
fiduciary, advisory or agency relationship; and
(d) each of the Company and the Operating Partnership waives, to the fullest extent permitted
by law, any claims it may have against CF&Co, for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that CF&Co shall have no liability (whether direct or indirect) to the
Company or the Operating Partnership in respect of such a fiduciary claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company or the Operating
Partnership, including stockholders, partners, employees or creditors of the Company or the
Operating Partnership.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile
transmission.
20. Definitions. As used in this Agreement, the following terms have the respective
meanings set forth below:
(a) “Applicable Time” means 11:00 P.M. (Eastern Time) on the date of this Agreement or
such other time as agreed to by the Company and CF&Co.
(b) “GAAP” means United States generally accepted accounting principles.
32
(c) “Organizational Documents” means (a) in the case of a corporation, its charter and
by-laws; (b) in the case of a limited or general partnership, its partnership certificate,
certificate of formation or similar organizational document and its partnership agreement; (c) in
the case of a limited liability company, its articles of organization, certificate of formation or
similar organizational documents and its operating agreement, limited liability company agreement,
membership agreement or other similar agreement; (d) in the case of a trust, its certificate of
trust, certificate of formation or similar organizational document and its trust
agreement or other similar agreement; and (e) in the case of any other entity, the
organizational and governing documents of such entity.
[Remainder of Page Intentionally Blank]
33
If the foregoing correctly sets forth the understanding among the Company, the Operating
Partnership and CF&Co, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company, the Operating Partnership and
CF&Co.
| Very truly yours, FIRST POTOMAC REALTY TRUST |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title: | EVP & CFO | |||
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP |
||||
| By: | First Potomac Realty Trust, | |||
| its general partner | ||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title: | EVP & CFO | |||
| ACCEPTED as of the date first-above written: CANTOR ▇▇▇▇▇▇▇▇▇▇ & CO. |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: | Managing Director | |||
SCHEDULE 1
FORM OF PLACEMENT NOTICE
From:
|
[ ] | |
Cc:
|
[ ] | |
To:
|
[ ] |
Subject: Controlled Equity Offering—Placement Notice
Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Controlled Equity
OfferingSM Sales Agreement among First Potomac Realty Trust (the “Company”),
First Potomac Realty Investment Limited Partnership and Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. (“CF&Co”)
dated November 11, 2008 (the “Agreement”), I hereby request on behalf of the Company that
CF&Co sell up to [___] of the Company’s common shares of beneficial interest, par value $0.001 per
share, at a minimum market price of $[___] per share. I further request that no more than [___] of
the Company’s common shares of beneficial interest be sold during any one Trading Day and that none
of the shares be sold at any time after [ ].
This Placement Notice cancels and supersedes in their entirety all Placement Notices delivered on
or prior to the date hereof.
SCHEDULE 2
CANTOR ▇▇▇▇▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
SCHEDULE 3
COMPENSATION
CF&Co shall be paid compensation of two and one half percent (2.5 %) of the gross proceeds
from the sales on the first 1,500,000 Shares sold pursuant to the terms of this Agreement and two
percent (2.0%) of the gross proceeds from the sales on any sales in excess of 1,500,000 Shares sold
pursuant to the terms of this Agreement.
SCHEDULE 4
SUBSIDIARIES OF COMPANY
403 & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, LLC
403 & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Manager, LLC
1400 Cavalier, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ II, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLC
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC
4212 Tech Court, LLC
ACP East, LLC
ACP East Finance, LLC
AP Indian Creek, LLC
Airpark Place, LLC
Airpark Place Holdings, LLC
Aquia One, LLC
Aquia Two, LLC
Bren Mar, LLC
Bren Mar Holdings, LLC
Columbia Holdings Associates, LLC
Crossways Associates, LLC
Crossways II, LLC
Crossways Land, LLC
Enterprise Center I, LLC
Enterprise Center Manager, LLC
EON Group, LLC
EON Group, Ltd
First Potomac Management, LLC
First Potomac Realty Investment Limited Partnership
First Potomac TRS Holdings, Inc.
First ▇▇▇▇▇▇, LLC
First ▇▇▇▇▇▇▇, LLC
FP 500 & 600 HP Way, LLC
FP ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, LLC
FP ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, LLC
FP ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
FP ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, LLC
FP Airpark AB, LLC
FP Ammendale Commerce Center, LLC
FP Campostella Road, LLC
FP Chesterfield ABEF, LLC
FP Chesterfield CDGH, LLC
FP Cronridge Drive, LLC
▇▇ ▇▇▇▇▇ Drive Lot 5, LLC
403 & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Manager, LLC
1400 Cavalier, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ II, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLC
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC
4212 Tech Court, LLC
ACP East, LLC
ACP East Finance, LLC
AP Indian Creek, LLC
Airpark Place, LLC
Airpark Place Holdings, LLC
Aquia One, LLC
Aquia Two, LLC
Bren Mar, LLC
Bren Mar Holdings, LLC
Columbia Holdings Associates, LLC
Crossways Associates, LLC
Crossways II, LLC
Crossways Land, LLC
Enterprise Center I, LLC
Enterprise Center Manager, LLC
EON Group, LLC
EON Group, Ltd
First Potomac Management, LLC
First Potomac Realty Investment Limited Partnership
First Potomac TRS Holdings, Inc.
First ▇▇▇▇▇▇, LLC
First ▇▇▇▇▇▇▇, LLC
FP 500 & 600 HP Way, LLC
FP ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, LLC
FP ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, LLC
FP ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
FP ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, LLC
FP Airpark AB, LLC
FP Ammendale Commerce Center, LLC
FP Campostella Road, LLC
FP Chesterfield ABEF, LLC
FP Chesterfield CDGH, LLC
FP Cronridge Drive, LLC
▇▇ ▇▇▇▇▇ Drive Lot 5, LLC
FP Diamond Hill, LLC
FP Gateway 270, LLC
FP Gateway West II, LLC
FP Gateway Center, LLC
▇▇ ▇▇▇▇▇▇ Business Center, LLC
▇▇ ▇▇▇▇▇▇ Place, LLC
FP Goldenrod Lane, LLC
FP Greenbrier Circle, LLC
FP Greenbrier Circle II, LLC
FP Greenbrier Circle III, LLC
▇▇ ▇▇▇▇, LLC
▇▇ ▇▇▇▇ Manager, LLC
FP Hanover AB, LLC
FP Hanover C, LLC
FP Hanover D, LLC
FP Indian Creek, LLC
FP Navistar Investors, LLC
FP Navistar Manager, LLC
FP Northridge, LLC
FP Park Central I, LLC
FP Park Central II, LLC
FP Park Central V, LLC
▇▇ ▇▇▇▇▇▇▇ Center, LLC
FP ▇▇▇▇ ▇▇▇▇, LLC
FP Properties, LLC
FP Properties II, LLC
FP Prosperity, LLC
FP Realty Investment Manager, LLC
▇▇ ▇▇▇▇▇▇ Bend, LLC
FP River’s Bend Land, LLC
▇▇ ▇▇▇▇▇▇ Park I, LLC
▇▇ ▇▇▇▇▇▇ Park II, LLC
▇▇ ▇▇▇▇▇▇▇▇ Park I, LLC
▇▇ ▇▇▇▇▇▇▇▇ Park II, LLC
FP Triangle , LLC
▇▇ ▇▇▇ ▇▇▇▇▇, LLC
▇▇ ▇▇▇▇ Park, LLC
FPR General Partner, LLC
FPR Holdings Limited Partnership
Gateway Hampton Roads, LLC
Gateway Manassas I, LLC
Gateway Manassas II, LLC
▇▇▇▇▇ ▇▇▇▇ Business Center, LLC
Greenbrier Holding Associates, LLC
Greenbrier Land, LLC
FP Gateway 270, LLC
FP Gateway West II, LLC
FP Gateway Center, LLC
▇▇ ▇▇▇▇▇▇ Business Center, LLC
▇▇ ▇▇▇▇▇▇ Place, LLC
FP Goldenrod Lane, LLC
FP Greenbrier Circle, LLC
FP Greenbrier Circle II, LLC
FP Greenbrier Circle III, LLC
▇▇ ▇▇▇▇, LLC
▇▇ ▇▇▇▇ Manager, LLC
FP Hanover AB, LLC
FP Hanover C, LLC
FP Hanover D, LLC
FP Indian Creek, LLC
FP Navistar Investors, LLC
FP Navistar Manager, LLC
FP Northridge, LLC
FP Park Central I, LLC
FP Park Central II, LLC
FP Park Central V, LLC
▇▇ ▇▇▇▇▇▇▇ Center, LLC
FP ▇▇▇▇ ▇▇▇▇, LLC
FP Properties, LLC
FP Properties II, LLC
FP Prosperity, LLC
FP Realty Investment Manager, LLC
▇▇ ▇▇▇▇▇▇ Bend, LLC
FP River’s Bend Land, LLC
▇▇ ▇▇▇▇▇▇ Park I, LLC
▇▇ ▇▇▇▇▇▇ Park II, LLC
▇▇ ▇▇▇▇▇▇▇▇ Park I, LLC
▇▇ ▇▇▇▇▇▇▇▇ Park II, LLC
FP Triangle , LLC
▇▇ ▇▇▇ ▇▇▇▇▇, LLC
▇▇ ▇▇▇▇ Park, LLC
FPR General Partner, LLC
FPR Holdings Limited Partnership
Gateway Hampton Roads, LLC
Gateway Manassas I, LLC
Gateway Manassas II, LLC
▇▇▇▇▇ ▇▇▇▇ Business Center, LLC
Greenbrier Holding Associates, LLC
Greenbrier Land, LLC
Greenbrier/Norfolk Holding, LLC
Greenbrier/Norfolk Investment, LLC
GTC I Second, LLC
GTC II First, LLC
▇▇▇▇▇▇▇ Corporate Center, LLC
Indian Creek Investors, LLC
Interstate Plaza Holding, LLC
Interstate Plaza Operating, LLC
▇▇▇▇▇▇▇▇ Way Investments, LLC
Landover ▇▇▇▇▇▇ ▇▇▇▇▇, LLC
Linden I, LLC
Linden I Manager, LLC
▇▇▇▇▇▇ ▇▇, LLC
Linden III, LLC
▇▇▇▇▇ Way ▇▇▇▇▇▇▇, LLC
Newington Terminal Associates, LLC
Newington Terminal, LLC
Norfolk Commerce Park, LLC
Norfolk First, LLC
Norfolk Land, LLC
Plaza 500, LLC
Reston Business Campus, LLC
▇▇▇▇▇▇ First, LLC
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Holding, LLC
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Investment, LLC
▇▇▇▇▇▇▇ First, LLC
Tech Court, LLC
Virginia Center, LLC
Virginia FP Virginia, LLC
Windsor at Battlefield, LLC
Greenbrier/Norfolk Investment, LLC
GTC I Second, LLC
GTC II First, LLC
▇▇▇▇▇▇▇ Corporate Center, LLC
Indian Creek Investors, LLC
Interstate Plaza Holding, LLC
Interstate Plaza Operating, LLC
▇▇▇▇▇▇▇▇ Way Investments, LLC
Landover ▇▇▇▇▇▇ ▇▇▇▇▇, LLC
Linden I, LLC
Linden I Manager, LLC
▇▇▇▇▇▇ ▇▇, LLC
Linden III, LLC
▇▇▇▇▇ Way ▇▇▇▇▇▇▇, LLC
Newington Terminal Associates, LLC
Newington Terminal, LLC
Norfolk Commerce Park, LLC
Norfolk First, LLC
Norfolk Land, LLC
Plaza 500, LLC
Reston Business Campus, LLC
▇▇▇▇▇▇ First, LLC
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Holding, LLC
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Investment, LLC
▇▇▇▇▇▇▇ First, LLC
Tech Court, LLC
Virginia Center, LLC
Virginia FP Virginia, LLC
Windsor at Battlefield, LLC