FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP 7600 Wisconsin Avenue, 11th Floor Bethesda, Maryland 20814
Exhibit 10.2
FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Dated as of: December 29, 2009
KeyBank National Association,
as Administrative Agent
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
as Administrative Agent
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Re: Amendment No. 3 to Secured Term Loan Agreement
Ladies and Gentlemen:
We refer to the Secured Term Loan Agreement dated as of August 7, 2007 (as amended and in
effect from time to time, the “Credit Agreement”), by and among FIRST POTOMAC REALTY
INVESTMENT LIMITED PARTNERSHIP, a Delaware limited partnership (the “Borrower”), KEYBANK
NATIONAL ASSOCIATION and the other lending institutions which are parties thereto (individually, a
“Lender” and collectively, the “Lenders”), and KEYBANK NATIONAL ASSOCIATION, as
administrative agent for itself and each other Lender (the “Agent”). Capitalized terms
used in this letter of agreement (this “Amendment”) which are not defined herein, but which
are defined in the Credit Agreement, shall have the same meanings herein as therein, as the context
so requires.
We have requested the Lenders to make certain amendments to the Credit Agreement, and you have
advised us that the Lenders are prepared and would be pleased to make the amendments so requested
by us on the condition that we join in this Amendment.
In connection with this Amendment, PNC Bank, National Association (the “Exiting Bank”) is
being repaid by us an amount equal to $10,000,000 in satisfaction in full of the entire portion of
the outstanding Term Loan made by it to the Borrower under the Credit Agreement, such repayment to
be made on a non-pro rata basis; and upon repayment of such amounts and the effectiveness of this
Amendment, the Exiting Bank shall no longer be a Lender under the Credit Agreement. As a result,
as of the Effective Date (defined below), KeyBank National Association will be the sole Lender
under the Credit Agreement (in such capacity, the “Continuing Lender”).
In connection with the Amendment, we have also requested you to convert the outstanding Term
Loan (after giving effect to the repayment contemplated above) to four
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
separate and distinct term loans, each in the principal amount of $10,000,000, each such term loan
to have the maturity date set forth below in this Amendment (the “Term Loan Conversion”).
Accordingly, in consideration of these premises, the promises, mutual covenants and agreements
contained in this Amendment, and fully intending to be legally bound by this Amendment, we hereby
agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
Effective as of December 29, 2009, and subject to the fulfillment of the conditions contained
in Article II of this Amendment, the Credit Agreement is amended in each of the following respects:
(a) The term “Loan Documents” shall, wherever used in the Credit Agreement or any of the other
Loan Documents, be deemed to also mean and include this Amendment, each of the promissory notes
evidencing Term Loan A, Term Loan B, Term Loan C and Term Loan D, the Splitter Agreement relating
to the new promissory notes and any omnibus amendment and reaffirmation of the Security Documents
entered into in connection with this Amendment.
(b) §1.1 of the Credit Agreement is hereby amended as follows:
| (1) | The definition for “Applicable Base Rate Margin” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Applicable Base Rate Margin. From the Effective Date through December 31, 2010, the Applicable Base Rate Margin shall be one hundred twenty five (125) basis points. From January 1, 2011 through December 31, 2011, the Applicable Base Rate Margin shall be two hundred twenty five (225) basis points. From January 1, 2012 through December 31, 2012, the Applicable Base Rate Margin shall be three hundred twenty five (325) basis points. From and after January 1, 2013, the Applicable Base Rate Margin shall be four hundred twenty five (425) basis points.” | |||
| (2) | The definition for “Applicable Libor Margin” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Applicable Libor Margin. From the Effective Date through December 31, 2010, the Applicable Libor Margin shall be two hundred fifty (250) basis points. From January 1, 2011 through December 31, 2011, the Applicable Libor Margin shall be three |
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| hundred fifty (350) basis points. From January 1, 2012 through December 31, 2012, the Applicable Libor Margin shall be four hundred fifty (450) basis points. From and after January 1, 2013, the Applicable Libor Margin shall be five hundred fifty (550) basis points.” | |||
| (3) | The definition for “Base Rate” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Base Rate. As at any applicable date of determination, the greater of (i) the fluctuating annual rate of interest announced from time to time by the Agent at the Agent’s Head Office as its “prime rate” and (ii) one half of one percent (0.50%) plus the Federal Funds Rate. The Base Rate is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer. Any change in the rate of interest payable hereunder resulting in a change in the Base Rate shall become effective as of the opening of business on the day on which such change in the Base Rate becomes effective, without notice or demand of any kind” | |||
| (4) | The definition for “Capital Reserve” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Capital Reserve. As at any date of determination, a capital reserve equal to the weighted average of square feet of the Real Estate Assets during the applicable period, multiplied by $0.15 per annum.” | |||
| (5) | The definition for “Capitalization Rate” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Capitalization Rate. The Capitalization Rate shall be 8.50%.” | |||
| (6) | The definition for “Consolidated or consolidated” is hereby amended by deleting at the end thereof the following phrase: “in accordance with the terms of this Agreement” | ||
| (7) | The definition of “Commitment” is amended by deleting the reference to “the Term Loan” contained therein and by inserting in place thereof the following: “Term Loan A, Term Loan B, Term Loan C and Term Loan D”. | ||
| (8) | The definition for “Consolidated Fixed Charges” is hereby amended by adding the following at the end thereof: |
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| “, in each case adjusted to include the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of the foregoing items of any Partially-Owned Entity in such period, based on its percentage ownership interest in such Partially-Owned Entity (or such other amount for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement” | |||
| (9) | The definition for “Consolidated Gross Asset Value” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Consolidated Gross Asset Value. As of any date of determination, the sum of (i)(x) the Net Operating Income of all of the Real Estate Assets (except as provided below) for the most recent fiscal quarter, less the Management Fee Adjustment, with the sum thereof multiplied by (y) 4; with the product thereof being divided by (z) the Capitalization Rate; plus (ii) an amount equal to the Cost Basis Value of Real Estate Assets Under Development on such date, plus (iii) the Cost Basis Value of Land on such date, plus (iv) the Cost Basis Value of Mortgage Notes on such date, plus (v) the value of Cash and Cash Equivalents on such date, as determined in accordance with GAAP and approved by the Agent, provided that (i) Net Operating Income from Real Estate Assets acquired during the applicable fiscal quarter and the immediately preceding fiscal quarter shall be excluded, and such acquired Real Estate Assets shall be included at their Cost Basis Value, and (ii) Net Operating Income from Real Estate Assets sold or otherwise transferred during the applicable fiscal quarter shall be excluded, with Consolidated Gross Asset Value being adjusted to include the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of Net Operating Income (and the items comprising Net Operating Income) from any Partially-Owned Entity in such period, based on its percentage ownership interest in such Partially-Owned Entity (or such other amount to which the Borrower, the Trust or such Subsidiary is entitled based on an arm’s length agreement)” | |||
| (10) | The definition for “Consolidated Total Interest Expense” is hereby amended by adding the following at the end thereof: | ||
| “, in each case adjusted to include the Borrower’s, the Trust’s or any Subsidiary’s pro rata share of the foregoing items of any Partially-Owned Entity in such period, based on its percentage ownership interest in such Partially-Owned Entity (or such other amount for which the Borrower, the Trust or such Subsidiary is obligated based on an arm’s length agreement)” |
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| (11) | The definitions of “Extension”, “Increase” and “Increase Conditions” are hereby deleted in their entirety. | ||
| (12) | The definition for “Indebtedness” is hereby amended by deleting in subsection (b) the phrase, “mortgage, pledge, security interest, lien, charge,” and substituting in lieu thereof the word, “Lien”. | ||
| (13) | The definition for “Libor Rate” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Libor Rate. For any Libor Rate Loan for any Interest Period, the average rates as shown in Reuters Screen LIBOR01 Page (or any successor service) at which deposits in U.S. dollars are offered by first class banks in the London Interbank Market at approximately 11:00 a.m. (London time) on the day that is two (2) Libor Business Days prior to the first day of such Interest Period with a maturity approximately equal to such Interest Period and in an amount approximately equal to the amount to which such Interest Period relates, adjusted for reserves and taxes if required by future regulations. If Reuters no longer reports such rate or Agent determines in good faith that the rate so reported no longer accurately reflects the rate available to Agent in the London Interbank Market, then any and all outstanding Loans shall be Base Rate Loans and bear interest at the Base Rate plus the Applicable Base Rate Margin. For any period during which a Reserve Percentage shall apply, the Libor Rate with respect to Libor Rate Loans shall be equal to the amount determined above divided by an amount equal to 1 minus the Reserve Percentage.” | |||
| (14) | The definition for “Loan” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Loan. Any of Term Loan A, Term Loan B, Term Loan C or Term Loan D, as applicable, and/or all of such Term Loan A, Term Loan B, Term Loan C and Term Loan D together, as the context may require.” | |||
| (15) | The definition for “Maturity Date” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Maturity Date. (i) With reference to Term Loan A, January 15, 2011, (ii) with reference to Term Loan B, January 15, 2012, (iii) with reference to Term Loan C, January 15, 2013, and (iv) with reference to Term Loan D, January 15, 2014; in each case, or such |
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| earlier date on which any of such Term Loans shall become due and payable pursuant to the terms hereof.” | |||
| (16) | The definition for “Net Operating Income” is hereby amended by inserting in the fifth line thereof after the phrase “management fees” the following: “(or Overhead Allocation, as applicable)”. | ||
| (17) | The definition for “Notes” is hereby amended by deleting the reference to “the Total Commitment” and by inserting in place thereof the following: “Term Loan A, Term Loan B, Term Loan C and Term Loan D, respectively,”. | ||
| (18) | The definition of “Obligations” is hereby amended by inserting, immediately following the reference to “the Term Loan” contained therein, the following: “(including Term Loan A, Term Loan B, Term Loan C and Term Loan D)”. | ||
| (19) | The definition for “Real Estate Assets Under Development” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Real Estate Assets Under Development. Any Real Estate Assets for which the Borrower or any of its Subsidiaries is actively pursuing construction of one or more Buildings or other improvements and for which construction is proceeding to completion without undue delay from Permit denial, construction delays or otherwise, all pursuant to such Person’s ordinary course of business, provided that any such Real Estate Asset (or, if applicable, any Building comprising a portion of any such Real Estate Asset) will no longer be considered a Real Estate Asset Under Development on the date upon which a certificate of occupancy has issued for such Real Estate Asset (or Building) or such Real Estate Asset (or Building) may otherwise be lawfully occupied for its intended use.” | |||
| (20) | The definition of “Term Loan” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Term Loan. Collectively, each of Term Loan A, Term Loan B, Term Loan C and Term Loan D, and as the context so requires, each of such Term Loan A, Term Loan B, Term Loan C and Term Loan D individually. |
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| (21) | The definition of “Total Commitment” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Total Commitment. As of any date, the sum of the then current Commitments of the Lenders under each of Term Loan A, Term Loan B, Term Loan C and Term Loan D. As of the Effective Date, the Total Commitment shall be $40,000,000. | |||
| (22) | The definition of “Unsecured Revolver” is hereby amended by deleting the reference to “$125,000,000” contained therein and by replacing it with the following reference: “$175,000,000”. | ||
| (23) | The definition for “Unsecured Revolver Agreement” is hereby deleted in its entirety and the following substituted in lieu thereof: | ||
| “Unsecured Revolver Agreement. The Second Amended and Restated Revolving Credit Agreement dated as of December ___, 2009, among the Borrower and certain of its Subsidiaries, KeyBank National Association, individually and as administrative agent and certain other lenders, as the same may be modified, increased, amended or restated from time to time.” | |||
| (24) | The following definitions are hereby added to the Credit Agreement: | ||
| “Consolidated Debt Yield. In relation to the Borrower, the Trust and their respective Subsidiaries for any fiscal quarter, the percentage determined by dividing (i) Consolidated EBITDA for the most recent fiscal quarter, annualized by (ii) Consolidated Total Indebtedness as of the last day of such fiscal quarter” | |||
| “Effective Date. The Effective Date shall be the effective date of Amendment No. 3 to Loan Agreement, which is December ___, 2009.” | |||
| “Term Loan A. The Term Loan in the principal amount equal to $10,000,000 made by the Lenders to the Borrower and converted into Term Loan A on the Effective Date.” | |||
| “Term Loan B. The Term Loan in the principal amount equal to $10,000,000 made by the Lenders to the Borrower and converted into Term Loan B on the Effective Date.” |
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| “Term Loan C. The Term Loan in the principal amount equal to $10,000,000 made by the Lenders to the Borrower and converted into Term Loan C on the Effective Date.” | |||
| “Term Loan D. The Term Loan in the principal amount equal to $10,000,000 made by the Lenders to the Borrower and converted into Term Loan D on the Effective Date.” |
(c) §2.3(c) of the Credit Agreement is hereby amended to read in its entirety as follows:
“[Reserved.]”
(d) §2.9 of the Credit Agreement is hereby amended to read in its entirety as follows:
“[Reserved.]”
(e) §3.1 of the Credit Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
Ҥ3.1 Maturity. The Borrower promises to pay on the applicable Maturity
Date, and there shall become absolutely due and payable on the applicable Maturity
Date, all unpaid principal of each of Term Loan A, Term Loan B, Term Loan C and
Term Loan D outstanding on such date, together with any and all accrued and unpaid
interest thereon and any and all other unpaid amounts due under this Agreement, the
Notes or any other of the Loan Documents.”
(f) The first sentence of §3.2 of the Credit Agreement is hereby deleted in its entirety and
the following is substituted in lieu thereof:
“The Borrower shall have the right, at its election, to prepay the outstanding
amount of each Term Loan, in whole or in part, at any time without penalty or
premium; provided that (i) any such voluntary prepayment shall be applied
first to outstanding amounts under Term Loan A, then to outstanding amounts under
Term Loan B, then to the outstanding amounts under Term Loan C and then to
outstanding amounts under Term Loan D and (ii) the outstanding amount of any Libor
Rate Loans may not be prepaid on a date other than the last day of an Interest
Period unless the Borrower pays the Libor Breakage Costs for each Libor Rate Loan
so prepaid at the time of such prepayment.”
(g) §7.1(b) of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
§7.1(b) Capitalization. The outstanding equity of FPLP is comprised of a
general partner interest and limited partner interests, all of which have been duly
issued and are outstanding and fully paid and non-
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
assessable and, as of the Effective Date, are owned and held of record by the
Persons set forth on Schedule 7.1(b) attached hereto. All of the issued and
outstanding general partner interests of FPLP are owned and held of record by the
Trust. There are no outstanding securities or agreements exchangeable for or
convertible into or carrying any rights to acquire a general partner interest in
FPLP. There are no outstanding commitments, options, warrants, calls or other
agreements (whether written or oral) binding on FPLP or the Trust which require or
could require FPLP or the Trust to sell, grant, transfer, assign, mortgage, pledge
or otherwise dispose of any general partner interest in FPLP. Except as set forth
in the Agreement of Limited Partnership of FPLP, no general partner interests of
FPLP are subject to any restrictions on transfer or any partner agreements, voting
agreements, trust deeds, irrevocable proxies; or any other similar agreements or
interests (whether written or oral). FPLP owns, directly or indirectly, 100% (by
number of votes or controlling interests) of the outstanding voting interests and
of the economic interests in each Subsidiary Guarantor. All of the issued and
outstanding equity interests of each Subsidiary Guarantor are owned and held of
record by the Persons set forth on Schedule 7.1(b) attached hereto, and all of such
equity interests have been duly issued and are outstanding and fully paid and
non-assessable. There are no outstanding securities or agreements exchangeable for
or convertible into or carrying any rights to acquire any equity interests in any
Subsidiary Guarantor. There are no outstanding commitments, options, warrants,
calls or other agreements (whether written or oral) binding on any Subsidiary
Guarantor which require or could require any Subsidiary Guarantor to sell, grant,
transfer, assign, mortgage, pledge or otherwise dispose of any equity interest of
such Subsidiary Guarantor and any such commitments, options, warrants, calls or
other agreements relating to FPLP are set forth on Schedule 7.1(b). Except as
disclosed on Schedule 7.1(b) attached hereto, no equity interests of any Subsidiary
Guarantor are subject to any restrictions on transfer or any partner agreements,
voting agreements, trust deeds, irrevocable proxies; or any other similar
agreements or interests (whether written or oral) and any such restrictions or
other agreements relating to FPLP are asset forth on Schedule 7.1(b). All of the
Preferred Equity which exists as of the Effective Date, and each of the agreements
or other documents entered into and/or setting forth the terms, rights and
restrictions applicable to any such Preferred Equity, are listed and described on
Schedule 7.1(b) attached hereto. All of the agreements and other documents
relating to the Preferred Equity have been furnished to the Agent.
(h) §7.19 of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
Ҥ7.19. Subsidiaries. Schedule 7.19 sets forth, as of the Closing Date, all
of the respective Subsidiaries of FPLP, each Subsidiary Guarantor and the Trust,
together with the exact legal name of each of such entities (including the Trust)
and the tax identification number of each of such entities (including the Trust).”
(i) §8.6 of the Credit Agreement is hereby amended by adding the following at the end thereof:
“Without limitation of the foregoing, the business in which the Borrower and its
Subsidiaries are engaged will be limited to the acquisition, development, ownership
and operation of income-producing office, industrial and flex properties in the
Mid-Atlantic United States and any business activities and Investments permitted
under §9.3 incidental thereto”
(j) §9.1(f) is hereby amended as follows:
| (i) | by deleting in subsection (i) thereof, “ten percent (10%)” and substituting in lieu thereof the following, “fifteen percent (15%)”; and | ||
| (ii) | by deleting in subsection (iii) thereof, “fifty-five percent (55%)” and substituting in lieu thereof the following, “forty-five percent (45%)”. |
(k) §9.4(a) of the Credit Agreement is hereby amended by adding after the phrase, “so long as”
the following phrase, “, in each case,”.
(l) §9.6(a) of the Credit Agreement is hereby amended by adding after the phrase, “Borrower
shall not make” the following phrase, “or declare”.
(m) §10.1 of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
Ҥ10.1 Consolidated Total Leverage Ratio. At any time, (i) from the
Closing Date through the fiscal quarter ending September 30, 2010, Consolidated
Total Indebtedness as at the last day of the each fiscal quarter shall not exceed
sixty-five percent (65%) of Consolidated Gross Asset Value as of the last day of
such fiscal quarter, (ii) from the fiscal quarter ending December 31, 2010 through
the fiscal quarter ending September 30, 2011, Consolidated Total Indebtedness as at
the last day of each fiscal quarter shall not exceed sixty-two and one half of one
percent (62.5%) of Consolidated Gross Asset Value as of the last day of such fiscal
quarter, and (iii) from and after the fiscal quarter ending December
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
31, 2011, Consolidated Total Indebtedness as at the last day of the applicable
fiscal quarter shall not exceed sixty percent (60%) of Consolidated Gross Asset
Value as of the last day of such fiscal quarter. This covenant shall be tested
quarterly as of the last day of the applicable quarter.”
(n) §10.2 of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
Ҥ10.2 Consolidated Debt Yield. As at the end of any fiscal quarter (i)
from the Closing Date through the fiscal quarter ending September 30, 2010, the
Consolidated Debt Yield shall not be less than ten percent (10%), (ii) from the
fiscal quarter ending December 31, 2010 through the fiscal quarter ending September
30, 2011, the Consolidated Debt Yield shall not be less than ten and one half of
one percent (10.5%), and (iii) from and after the fiscal quarter ending December
31, 2011, the Consolidated Debt Yield shall not be less than eleven percent (11%).”
(o) §10.5 of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
Ҥ10.5 Borrowing Base Pool Leverage. As at the end of any fiscal quarter
or any other date of measurement, (i) from the Closing Date through the fiscal
quarter ending December 31, 2010, Borrower shall not permit Consolidated Borrowing
Base Indebtedness to exceed sixty-seven and one-half of one percent (67.5%) of the
aggregate Value of Eligible Borrowing Base Properties, (ii) from the fiscal quarter
ending March 31, 2011 through the fiscal quarter ending December 31, 2011, Borrower
shall not permit Consolidated Borrowing Base Indebtedness to exceed sixty-five
percent (65%) of the aggregate Value of Eligible Borrowing Base Properties, (iii)
from the fiscal quarter ending March 31, 2012 through the fiscal quarter ending
December 31, 2012, Borrower shall not permit Consolidated Borrowing Base
Indebtedness to exceed sixty-two and one-half of one percent (62.5%) of the
aggregate Value of Eligible Borrowing Base Properties, and (iv) from and after the
fiscal quarter ending March 31, 2013, Borrower shall not permit Consolidated
Borrowing Base Indebtedness to exceed sixty percent (60%) of the aggregate Value of
Eligible Borrowing Base Properties.”
(p) §10.6 of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
Ҥ10.6 Borrowing Base Pool Debt Service Coverage Ratio. As at the end of
any fiscal quarter or any other date of measurement, the ratio of (i) Adjusted Net
Operating Income for the applicable quarter, annualized;
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
divided by (ii) Implied Debt Service for the applicable period shall not be less
than (a) from the Closing Date through the fiscal quarter ending December 31, 2010,
1.40 to 1.00, (b) from the fiscal quarter ending March 31, 2011 through the fiscal
quarter ending December 31, 2011, 1.45 to 1.00, (c) from the fiscal quarter ending
March 31, 2012 through the fiscal quarter ending December 31, 2012, 1.50 to 1.00,
and (d) from and after the fiscal quarter ending March 31, 2013, 1.55 to 1.00.”
(q) §14.1(a) of the Credit Agreement is hereby amended by deleting the reference therein to
“any Loans” and by inserting in place thereof the following: “Term Loan A, Term Loan B, Term Loan
C or Term Loan D”.
(r) §14.1(b) of the Credit Agreement is hereby amended by deleting the reference therein to
“the Loans” and by inserting in place thereof the following: “Term Loan A, Term Loan B, Term Loan
C or Term Loan D”.
(s) §14.1(i) of the Credit Agreement is hereby amended by deleting the number “$322,201,600”
and substituting in lieu thereof, the number “370,000,000”.
(t) §14.1(n) of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
“(n) the occurrence of any transaction in which any “person” or “group” (within
the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934)
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of
all classes of stock then outstanding of the Trust ordinarily entitled to vote in
the election of directors, empowering such “person” or “group” to elect a majority
of the Board of Directors or Board of Trustees of the Trust, who did not have such
power before such transaction; or during any twelve-month period on or after the
Closing Date, individuals who at the beginning of such period constituted the Board
of Trustees of the Trust (together with any new directors whose election by the
Board of Trustees or whose nomination for election by the shareholders of the Trust
was approved by a vote of at least a majority of the members of the Board of
Trustees then in office who either were members of the Board of Trustees at the
beginning of such period or whose election or nomination for election was
previously so approved) ceased for any reason to constitute a majority of the
members of the Board of Trustees of the Trust then in office; or”
(u) §14.1(o) of the Credit Agreement is hereby deleted in its entirety and the following
substituted in lieu thereof:
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
“(o) without limitation of the other provisions of this §14.1, the Trust shall at
any time fail to be the sole general partner of FPLP (or shall enter into any
agreement to permit any other Person to acquire a general partner interest in FPLP)
or shall at any time be in contravention of any of the requirements contained in
the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last
paragraph of §9.3)”
(v) Exhibit C of the Credit Agreement is hereby amended in its entirety as set forth on Annex
1 attached hereto.
(w) Schedule 7.1(b) of the Credit Agreement is hereby amended in its entirety as set forth on
Annex 2 attached hereto.
(x) Schedule 7.19 of the Credit Agreement is hereby amended in its entirety as set forth on
Annex 3 attached hereto.
ARTICLE II
CONVERSION OF EXISTING TERM LOAN AND
PAYMENT OF EXITING LENDER
PAYMENT OF EXITING LENDER
(a) The Borrower has requested, and the Continuing Lender has agreed, to convert the
outstanding Term Loan under the Credit Agreement into four separate and distinct term loans. As of
the Effective Date, the Term Loan shall be converted to Term Loan A, Term Loan B, Term Loan C and
Term Loan D, all as more fully described in the Credit Agreement, as amended hereby. Each of Term
Loan A, Term Loan B, Term Loan C and Term Loan D shall be evidenced by a separate promissory note
of the Borrower to each Lender. The Borrower, the Continuing Lender and the Administrative Agent
shall enter into a Splitter Agreement on the date hereof in connection with the foregoing.
(b) On the Effective Date, the Borrower shall pay to the Exiting Bank an amount equal to
$10,000,000, together with all accrued and unpaid interest thereon and any other amounts due to the
Exiting Bank under the Credit Agreement. By its countersignature below, the Continuing Lender
hereby consents to such non-pro rata payment under the Credit Agreement notwithstanding the
provisions thereof.
ARTICLE III
CONDITIONS PRECEDENT TO AMENDMENT
The Lenders’ agreement herein to amend the Credit Agreement as of the Amendment Date is
subject to the fulfillment to the satisfaction of the Lenders of the following conditions precedent
on or prior to such date:
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
(a) The Borrower shall have executed and delivered to the Agent a counterpart of this
Amendment, which shall be in form and substance satisfactory to the Lenders;
(b) The Borrower shall have executed and delivered to the Continuing Lender a promissory note
evidencing each of Term Loan A, Term Loan B, Term Loan C and Term Loan D and a Splitter Agreement
in connection therewith;
(c) The Trust and the Subsidiary Guarantors shall have acknowledged and consented to the
provisions of this Amendment;
(d) The Borrower shall have made the principal, interest and any other payment required
pursuant to this Amendment and PNC Bank, National Association shall have ceased to be a Lender
under the Credit Agreement (and shall have acknowledged such event to the Agent);
(e) The Borrower shall have paid to the Administrative Agent, for the accounts of the
Continuing Lender or for its own account, as applicable, the fees and expenses payable as of the
Closing Date in accordance with this Amendment, the Credit Agreement or any separate fee letter
entered into by the Borrower and the Trust and the Administrative Agent; and
(f) The Agent and the Majority Lenders shall have executed this Amendment.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower and the Guarantor hereby represent and warrant to you as follows:
(a) Representations and Warranties. Each of the representations and warranties made
by the Borrower and the Guarantor, as applicable, to the Agent and the Lenders in the Credit
Agreement and other Loan Documents, as applicable, was true, correct and complete when made and is
true, correct and complete on and as of the date hereof with the same full force and effect as if
each of such representations and warranties had been made by the Borrower and the Guarantor on the
date hereof and in this Amendment, except to the extent that such representations and warranties
relate solely to a prior date.
(b) No Defaults or Events of Default. No Default or Event of Default exists on the
date hereof, after giving effect to this Amendment, and no condition exists on the date hereof
which would, with notice or the lapse of time, or both, constitute a Default or an Event of Default
under the Credit Agreement.
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
(c) Binding Effect of Documents. This Amendment has been duly authorized, executed
and delivered to you by the Borrower and the Guarantor and is in full force and effect as of the
date hereof, and the agreements and obligations of the Borrower and the Guarantor contained herein
and therein constitute the legal, valid and binding obligations of the Borrower and Guarantor
enforceable against the Borrower and Guarantor in accordance with their respective terms.
ARTICLE V
MISCELLANEOUS
This Amendment may be executed in any number of counterparts, each of which when executed and
delivered shall be deemed an original, but all of which together shall constitute one instrument.
In making proof of this Amendment, it shall not be necessary to produce or account for more than
one counterpart thereof signed by each of the parties hereto. Except to the extent specifically
amended and supplemented hereby, all of the terms, conditions and the provisions of the Credit
Agreement and each of the other Loan Documents shall otherwise remain unmodified, and the Credit
Agreement and each of the other Loan Documents, as amended and supplemented by this Amendment, are
confirmed as being in full force and effect, and the Borrower and the Guarantor hereby ratify and
confirm all of its agreements and obligations contained therein, as applicable.
[Remainder of Page Intentionally Left Blank]
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
If you are in agreement with the foregoing, please sign the form of acceptance on the enclosed
counterpart of this Amendment, whereupon this Amendment, as so accepted by you, shall become a
binding agreement between you and the undersigned.
| Very truly yours, FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP |
||||
| By: | First Potomac Realty Trust, | |||
| its sole general partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Xxxxx X. Xxxx, | ||||
| Chief Financial Officer and Executive Vice President |
||||
(Signatures continued on next page)
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
[Consent to Amendment No. 3 to Secured Term Loan Agreement]
CONSENT OF TRUST GUARANTOR
FIRST POTOMAC REALTY TRUST (the “Guarantor”) has guaranteed the Obligations (as
defined in the Guaranty by the Guarantor in favor of the Lenders and the Agent, dated as of August
7, 2007 (the “Guaranty”). By executing this consent, the Guarantor hereby absolutely and
unconditionally reaffirms to the Agent and the Lenders that the Guarantor’s Guaranty remains in
full force and effect and that the Obligations (as defined in the Guaranty) include, without
limitation, each of Term Loan A, Term Loan B, Term Loan C and Term Loan D. In addition, the
Guarantor hereby acknowledges and agrees to the terms and conditions of this Amendment and the
Credit Agreement as amended hereby (including, without limitation, the making of the
representations and warranties and the performance of the covenants applicable to it herein or
therein).
| GUARANTOR: FIRST POTOMAC REALTY TRUST |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Xxxxx Xxxx, Executive Vice President and | ||||
| Chief Financial Officer | ||||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
[Consent to Amendment No. 3 to Secured Term Loan Agreement]
CONSENT OF SUBSIDIARY GUARANTORS
Each of the Subsidiary Guarantors listed on Annex 3 attached hereto (the “Subsidiary
Guarantors”) has guaranteed the Obligations (as defined in the Subsidiary Guaranty by the
Subsidiary Guarantors in favor of the Lenders and the Agent, dated as of August 7, 2007 (the
“Subsidiary Guaranty”). By executing this consent, each of the Subsidiary Guarantors
hereby absolutely and unconditionally reaffirms to the Agent and the Lenders that the Subsidiary
Guarantor’s Subsidiary Guaranty remains in full force and effect and that the Obligations (as
defined in the Subsidiary Guaranty) include, without limitation, each of Term Loan A, Term Loan B,
Term Loan C and Term Loan D. In addition, each of the Subsidiary Guarantors hereby acknowledges
and agrees to the terms and conditions of this Amendment and the Credit Agreement as amended hereby
(including, without limitation, the making of the representations and warranties and the
performance of the covenants applicable to it herein or therein).
| SUBSIDIARY GUARANTORS: FP AIRPARK AB, LLC |
||||
| By: | FPR Holdings Limited Partnership | |||
| Its Sole Member | ||||
| By: | FPR General Partner, LLC | |||
| Its General Partner | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| 0000 XXXXXXXXX XXXXXXXXX I, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| 0000 XXXXXXXXX XXXXXXXXX II, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| CROSSWAYS ASSOCIATES LLC | ||||
| By: | Xxxxxxxx Way Investments LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| FP CHESTERFIELD ABEF, LLC | ||||
| By: | FPR Holdings Limited Partnership | |||
| Its Sole Member | ||||
| By: | FPR General Partner, LLC | |||
| Its General Partner | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| FP CHESTERFIELD CDGH, LLC | ||||
| By: | FPR Holdings Limited Partnership | |||
| Its Sole Member | ||||
| By: | FPR General Partner, LLC | |||
| Its General Partner | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| ENTERPRISE CENTER I, LLC | ||||
| By: | Enterprise Center Manager, LLC | |||
| Its Managing Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| GATEWAY MANASSAS I, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| 403 & 405 XXXXX DRIVE, LLC | ||||
| By: | 403 & 000 Xxxxx Xxxxx Manager, LLC | |||
| Its Managing Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| FP HANOVER C, LLC | ||||
| By: | FPR Holdings Limited Partnership | |||
| Its Sole Member | ||||
| By: | FPR General Partner, LLC | |||
| Its General Partner | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| FP HANOVER D, LLC | ||||
| By: | FPR Holdings Limited Partnership | |||
| Its Sole Member | ||||
| By: | FPR General Partner, LLC | |||
| Its General Partner | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| LINDEN I, LLC | ||||
| By: | Linden I Manager, LLC | |||
| Its Managing Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| XX XXXX, LLC | ||||
| By: | XX Xxxx Manager | |||
| Its Managing Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| NEWINGTON TERMINAL ASSOCIATES LLC | ||||
| By: | Newington Terminal, LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| LANDOVER XXXXXX XXXXX, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| FP PROSPERITY, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| PLAZA 500, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| AP INDIAN CREEK, LLC | ||||
| By: | FP Indian Creek, LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| INDIAN CREEK INVESTORS, LLC | ||||
| By: | FP Indian Creek, LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| NORFOLK FIRST LLC | ||||
| By: | Greenbrier Holding Associates LLC | |||
| Its Sole Member | ||||
| By: | Greenbrier/Norfolk Investment LLC | |||
| Its Sole Member | ||||
| By: | Greenbrier/Norfolk Holding LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| GTC II FIRST LLC | ||||
| By: | Greenbrier Holding Associates LLC | |||
| Its Sole Member | ||||
| By: | Greenbrier/Norfolk Investment LLC | |||
| Its Sole Member | ||||
| By: | Greenbrier/Norfolk Holding LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| XXXXXX FIRST LLC | ||||
| By: | First Xxxxxx LLC | |||
| Its Sole Member | ||||
| By: | Columbia Holding Associates LLC | |||
| Its Sole Member | ||||
| By: | Xxxxxx/Xxxxxxx Investment LLC | |||
| Its Sole Member | ||||
| By: | Xxxxxx/Xxxxxxx Holding LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| XXXXXXX FIRST LLC | ||||
| By: | First Xxxxxxx LLC | |||
| Its Sole Member | ||||
| By: | Columbia Holding Associates LLC | |||
| Its Sole Member | ||||
| By: | Xxxxxx/Xxxxxxx Investment LLC | |||
| Its Sole Member | ||||
| By: | Xxxxxx/Xxxxxxx Holding LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
| AQUIA ONE, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| XX XXX XXXXX, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| ACP EAST, LLC | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
ACCEPTED AND AGREED AS OF DECEMBER 29, 2009:
| KEYBANK NATIONAL ASSOCIATION, Individually and as Administrative Agent |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President | |||
(End of signatures)
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
ANNEX 1
Exhibit C
Compliance Certificate
ANNEX 2
Schedule 7.1(b)
Capitalization
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
ANNEX 3
Schedule 7.19
Subsidiaries
Signature Page to Amendment No. 3 to Secured Term Loan Agreement
