FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP 7600 Wisconsin Avenue, 11th Floor Bethesda, Maryland 20814
EXHIBIT 10.40
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: October
27, 2010
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. 4 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 (i) to make certain amendments to the Credit Agreement,
including that the covenant relating to Restrictions on Indebtedness be amended to permit the
Borrower to incur unsecured Indebtedness subject to certain conditions and (ii) to provide certain
consents under the Credit Agreement, including that the Borrower be permitted to make a minority
investment, as more fully described in Annex 1 (the “950 F Street Investment”), and you
have advised us that the Lenders are prepared and would be pleased to make the amendments and
provide the consents so requested by us on the condition that we join in this Amendment.
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 October
27, 2010 (the “Amendment Date”), and subject to the
fulfillment of the conditions contained in Article III 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.
(b) Clause (iii) of the proviso contained in Section 9.1(f) of the Credit Agreement is amended
to read in its entirety as follows:
“(iii) such Indebtedness, in the aggregate, does not exceed forty percent (40%) of
Consolidated Gross Asset Value (it being acknowledged, for the avoidance of doubt, that the
outstanding Indebtedness hereunder and under the 2008 Term Loan shall count against the fifteen
percent (15%) basket referred to in clause (i) above)”.
(c) Section 9.1 of the Credit Agreement is further amended (x) by inserting a new clause (i)
immediately following clause (h) thereof (and by deleting the word “and” at the end of clause (g)
and inserting “; and” at the end of clause (h) in place of the period) and (y) by inserting the
following sentence after such new clause (i):
“(i) unsecured Indebtedness of the Borrower (including subsidiary guarantees by any
Subsidiary of FPLP) and unsecured guarantees by the Trust with respect to such unsecured
Indebtedness, provided that (i) such Indebtedness shall at all times remain
unsecured in all respects (including, for the avoidance of doubt, that the Equity Interests
of the Borrower or any Subsidiary Guarantor shall not be pledged as security for any such
Indebtedness), (ii) both before and immediately after giving effect to any such unsecured
Indebtedness, no Default or Event of Default has occurred or is continuing, (iii) prior to
incurring any such unsecured Indebtedness, the Borrower has provided the Agent with a
certificate in the form of Exhibit C-2 evidencing compliance with each of the
financial covenants set xxxxx xx §00 of the Credit Agreement on a pro forma
basis immediately after giving effect to such unsecured Indebtedness, and (iv) such
unsecured Indebtedness shall not be in the nature of a revolving credit facility.
For the avoidance of doubt, the Indebtedness under the Unsecured Revolver Agreement and the
2008 Term Loan (as defined in the Unsecured Revolver Agreement) are also permitted
Indebtedness under this §9.1.”
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ARTICLE II
CONSENT TO 000 X XXXXXX INVESTMENT
As more particularly described in Annex 1 attached hereto, FPLP, through a Subsidiary, intends
to aquire a preferred equity interest in Jemal LLC (as defined in Annex 1). Jemal LLC is the sole
managing member of a special purpose limited liability company (“SPE”) that owns the office
building located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX (the “F Street Office Building”). The
000 X Xxxxxx Investment will be made substantially on the terms outlined by the Borrower in Annex
1. In addition, the 000 X Xxxxxx Xxxxxxxxxx will, in accordance with GAAP, be treated as
Indebtedness by the Borrower, and accordingly, the Borrower has requested that for purposes of the
Credit Agreement, including the financial covenants and related definitions contained therein, the
000 X Xxxxxx Investment be treated as an acquisition of Indebtedness and accounted for at its cost
basis (similar to the treatment of an acquisition of a Mortgage Note) and not be treated as an
Investment in a Partially-Owned Entity (the “Cost Basis Treatment”).
The Borrower has requested that the Lenders consent to (i) the 000 X Xxxxxx Investment for
purposes of the Credit Agreement, including Section 9.3 thereof and (ii) the Cost Basis Treatment
for the 000 X Xxxxxx Xxxxxxxxxx.
The Lenders hereby consent to (x) the 000 X Xxxxxx Investment and (y) the Cost Basis Treatment
for the 000 X Xxxxxx Investment, subject in each case to the following conditions: (i) at the time
of the 000 X Xxxxxx Investment and after giving effect thereto (and after giving effect to this
consent), no Default or Event of Default shall have occurred or be continuing, (ii) the F Street
Office Building shall at all times be a Permitted Property, (iii) the 000 X Xxxxxx Investment be
made on terms substantially consistent with the terms outlined in Annex 1, (iv) the Cost Basis
Treatment for the 000 X Xxxxxx Investment is permitted under GAAP, (v) after giving effect to the
Cost Basis Treatment for the 000 X Xxxxxx Xxxxxxxxxx, the Borrowers are in compliance with Section
9.3(h) of the Credit Agreement (it being agreed that, for so long as it remains outstanding, the
000 X Xxxxxx Investment shall be deemed to be a “Mortgage Note” for purposes of determining
compliance with Section 9.3(h) of the Credit Agreement), (vi) any Indebtedness to which the F
Street Office Building, the SPE or Jemal LLC is subject is and remains Without Recourse to FPLP or
any of its Subsidiaries and neither FPLP nor any of its Subsidiaries pledges any of its respective
assets or properties in support of any such Indebtedness, and (vii) FPLP delivering to the Agent,
at its request, copies of each of the agreements and documents evidencing the 000 X Xxxxxx
Investment and the transactions relating thereto (including, without limitation, operating
agreements and loan documents of the SPE).
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ARTICLE III
CONDITIONS PRECEDENT TO AMENDMENT AND CONSENT
The Lenders’ agreement herein to amend the Credit Agreement and provide the consents hereunder
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:
(a) The Borrower shall have executed and delivered (or caused to be delivered) to the Agent a
counterpart of this Amendment, which shall be in form and substance satisfactory to the Lender;
(b) Each of the Trust and the Subsidiary Guarantors (collectively, the “Guarantors”) shall
have acknowledged and consented to the provisions of this Amendment;
(c) The Agent and the Required Lenders shall have executed this Amendment;
(d) The representations and warranties of the Borrower set forth herein shall be true and
correct;
(e) The Borrower shall have furnished to the Agent and the Lenders a pro forma Compliance
Certificate evidencing compliance with the covenants set forth in Section 10 of the Credit
Agreement after giving effect to the 000 X Xxxxxx Investment and the unsecured private placement
indebtedness currently contemplated by the Borrowers; and
(f) The Agent shall have received such other documentation and information as it may
reasonably request regarding the 000 X Xxxxxx Investment, all of which shall be in form and
substance satisfactory to the Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Guarantors hereby represents and warrants to you as follows:
(a) Representations and Warranties. Each of the representations and warranties made
by the Borrower and the Guarantors, as applicable, to the Agent and the Lenders in this Amendment,
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 Amendment Date with the same full force and
effect as if each of such representations and warranties had been made by the Borrower and the
Guarantors on the
Amendment Date and in this Amendment, except to the extent that such representations and warranties
relate solely to a prior date. The Borrower hereby represents and warrants that the description of
the 000 X Xxxxxx Investment made herein and in Annex 1 provided by the Borrower is accurate in all
material respects as of the date hereof.
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(b) No Defaults or Events of Default. No Default or Event of Default exists on the
Amendment Date, 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.
(c) Binding Effect of Documents. This Amendment has been duly authorized, executed
and delivered to you by each of the Borrower and the Guarantors and is in full force and effect as
of the date hereof, and the agreements and obligations of each of the Borrower and the Guarantors
contained herein and therein constitute the legal, valid and binding obligations of such Borrower
and Guarantors enforceable against such Borrower and Guarantors in accordance with their respective
terms.
(d) No Implied Waiver. Except as expressly set forth in this Amendment, this
Amendment shall not, by implication or otherwise, limit, impair, constitute a waiver of or
otherwise affect any rights or remedies of the Agent or the Lenders under the Credit Agreement or
the other Loan Documents, nor alter, modify, amend or in any way affect any of the terms,
obligations or covenants contained in the Credit Agreement or the Loan Documents, all of which
shall continue in full force and effect. Nothing in this Amendment shall be construed to imply any
willingness on the part of the Agent or the Lenders to grant any similar or future consent or
waiver of any of the terms and conditions of the Credit Agreement or the other Loan Documents.
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 each of the Borrower and the Guarantors hereby
ratifies and confirms all of its agreements and obligations contained therein, as applicable.
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(Remainder of page left blank)
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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 General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
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(Signatures continued on next page)
[Consent to Amendment No. 4 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 X. Xxxx | |||
| Xxxxx X. Xxxx, Executive Vice President and | ||||
| Chief Financial Officer | ||||
[Consent to Amendment No. 4 to Secured Term Loan Agreement]
CONSENT OF SUBSIDIARY GUARANTORS
Each of the Subsidiary Guarantors (as defined in the Credit Agreement) has guaranteed the
Obligations (as defined in the Subsidiary Guaranty (as defined in the Credit Agreement. 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 |
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| 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 |
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| 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 |
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| 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 |
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| FP CHESTERFIELD ABEF, LLC |
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| 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 |
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| FP CHESTERFIELD CDGH, LLC |
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| 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 |
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(Signatures continued on next page)
| 403 & 000 XXXXX XXXXX, LLC |
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| 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 |
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| FP HANOVER C, LLC |
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| 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 |
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| FP HANOVER D, LLC |
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| 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 |
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(Signatures continued on next page)
| FP PROSPERITY, LLC |
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| 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 |
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| XXXXXXX FIRST LLC |
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| 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 |
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(Signatures continued on next page)
| FPR HOLDINGS LIMITED PARTNERSHIP |
||||
| By: | FPR General Partner, LLC | |||
| Its General Partner | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
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| NEWINGTON TERMINAL LLC |
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| 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 |
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| XXXXXXXX WAY INVESTMENTS LLC |
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| 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 |
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(Signatures continued on next page)
| COLUMBIA HOLDING ASSOCIATES LLC |
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| 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 |
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| FIRST XXXXXXX LLC |
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| 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 |
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| GREENBRIER/NORFOLK HOLDING LLC |
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| 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 |
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(Signatures continued on next page)
| GREENBRIER/NORFOLK INVESTMENT LLC |
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| 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 |
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| XXXXXX/XXXXXXX HOLDING 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 |
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| XXXXXX/XXXXXXX INVESTMENT LLC |
||||
| 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 |
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(Signatures continued on next page)
| INTERSTATE PLAZA HOLDING, LLC, a Delaware limited liability company |
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| By: | Interstate Plaza Operating LLC | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Investment Limited Partnership | |||
| Its Sole Member | ||||
| By: | First Potomac Realty Trust | |||
| Its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
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| FP GATEWAY CENTER, LLC, a Maryland limited liability company |
||||
| 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 |
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| XXXXX XXXX BUSINESS CENTER, LLC, a Maryland limited liability company |
||||
| 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 |
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(Signatures continued on next page)
| INTERSTATE PLAZA OPERATING, LLC, a Delaware limited liability company |
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| 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 |
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(Signatures continued on next page)
ACCEPTED AND AGREED AS
OF THE 27 DAY OF
OCTOBER, 2010:
OF THE 27 DAY OF
OCTOBER, 2010:
KEYBANK NATIONAL ASSOCIATION, individually and as Administrative Agent |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Vice President | |||
(End of Signatures)
ANNEX 1
FPLP, through a subsidiary, is proposing to make a preferred equity investment in a single
purpose entity limited liability company owned by Xxxxxxx Xxxxx (the “Jemal LLC”) and
certain of his relatives and affiliates. The Jemal LLC is the sole and managing member of
an single purpose entity limited liability company (the “Property Owner LLC”) that owns an
office building located at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX. The amount of the proposed
investment is twenty-five million dollars ($25,000,000), and FPLP will be entitled to a
preferred return of 12.5% per annum (17.5% in the event of a default or after seven years).
The Jemal LLC must also maintain a cash reserve account in an amount equal to 6 monthly
payments of the preferred return. The preferred interest is redeemable by the Jemal LLC at
any time after the third anniversary of issuance. Prior to that time, the preferred
interest may only be redeemed upon a sale of the property with the consent of FPLP and with
the payment of a make-whole premium. The preferred interest will become redeemable at the
option of FPLP beginning in 2018. In the event that the Property Owner LLC defaults in the
payment of any preferred return or if the Property Owner LLC defaults on its mortgage loan
in the original principal amount of One Hundred Fifty Million Dollars ($150,000,000), FPLP
will have the right to cause the Jemal LLC to redeem the common equity at 80% of fair
market value, at which time FPLP will become the sole member of the Jemal LLC. FPLP as
preferred member also will have customary major decision veto rights.
