FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP 7600 Wisconsin Avenue, 11th Floor Bethesda, Maryland 20814
EXHIBIT 10.1
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. 2 to Second Amended and Restated Revolving Credit Agreement |
Ladies and Gentlemen:
We refer to the Second Amended and Restated Revolving Credit Agreement dated as of December
29, 2009 (as amended by Amendment No. 1 dated May 14, 2010 and as further modified by the
Commitment Increase Agreement, dated June 1, 2010, and as in effect from time to time, the
“Credit Agreement”), by and among FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, a
Delaware limited partnership, and certain of its Wholly-owned Subsidiaries (collectively, the
“Borrowers”), KEYBANK NATIONAL ASSOCIATION and the other lending institutions which are
parties thereto (individually, a “Lender” and collectively, the “Lenders”), KEYBANK
NATIONAL ASSOCIATION, as administrative agent for itself and each other Lender (the
“Agent”) and certain other parties. 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
Borrowers to incur unsecured Indebtedness subject to certain conditions and (ii) to provide certain
consents under the Credit Agreement, including that the Borrowers 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 under the 2007 Term Loan and 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 FPLP or any other Borrower 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 2007 Term Loan and the 2008 Term Loan are also permitted
Indebtedness under this §9.1.”
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(d) Section 9.2(ix) of the Credit Agreement is amended by inserting the following new
parenthetical at the end thereof (before the period): “(other than the unsecured Indebtedness
permitted under clause (i) of §9.1)”.
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 Borrowers in Annex
1. In addition, the 000 X Xxxxxx Xxxxxxxxxx will, in accordance with GAAP, be treated as
Indebtedness by the Borrowers, and accordingly, the Borrowers have 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 Borrowers have requested that the Lenders consent to (i) the 000 X Xxxxxx Investment for
purposes of the Credit Agreement, including Section 9.3 thereof, (ii) the Cost Basis Treatment for
the 000 X Xxxxxx Investment and (iii) the use of proceeds of the Loans in order to make the 000 X
Xxxxxx Xxxxxxxxxx.
The Lenders hereby consent to (x) the 000 X Xxxxxx Xxxxxxxxxx, (y) the Cost Basis Treatment
for the 000 X Xxxxxx Investment and (z) the use of proceeds of the Loans to make 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) Each of the Borrowers 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
Lenders;
(b) The Guarantor 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 Borrowers 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 Borrowers and the Guarantor hereby represents and warrants to you as follows:
(a) Representations and Warranties. Each of the representations and warranties made
by the Borrowers and the Guarantor, 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 Borrowers and the Guarantor on the Amendment
Date and in this Amendment, except to the extent that such representations and warranties relate
solely to a prior date. The Borrowers hereby represent and warrant that the description of the 000
X Xxxxxx Investment made herein and in Annex 1 provided by the Borrowers 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 Borrowers and the Guarantor and is in full force and effect as
of the date hereof, and the agreements and obligations of each of the Borrowers and the Guarantor
contained herein and therein constitute the legal, valid and binding obligations of such Borrower
and Guarantor enforceable against such Borrower and Guarantor 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 Borrowers and the Guarantor hereby
ratifies and confirms all of its agreements and obligations contained therein, as applicable.
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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 |
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| 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 | |||
(Signatures continued on next page)
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| 1400 CAVALIER, 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 | |||
| 0000 XXXXXXXXX XXXX., 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 XXXXXXX, 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 | |||
(Signatures continued on next page)
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| XXXXXXX XXXXX, LLC |
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| By: | Airpark Place Holdings 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 AMMENDALE COMMERCE CENTER, 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 | |||
| AQUIA TWO, 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 | |||
(Signatures continued on next page)
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| CROSSWAYS II 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 | |||
| FPR HOLDINGS LIMITED PARTNERSHIP |
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| 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 | |||
| XX XXXXX DRIVE LOT 5, 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 | |||
(Signatures continued on next page)
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| FP PROPERTIES, 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 | |||
| FP PROPERTIES II, 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 | |||
| FP DIAMOND HILL, 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 | |||
(Signatures continued on next page)
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| FP CAMPOSTELLA ROAD, 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 | |||
| GATEWAY HAMPTON ROADS, 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 | |||
| FP GATEWAY 270, 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 | |||
(Signatures continued on next page)
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| GATEWAY MANASSAS II, 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 | |||
| FP 0000 XXXXXXXX XXXXXX, 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 | |||
| FP GATEWAY WEST II, 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 | |||
(Signatures continued on next page)
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| FP GOLDENROD LANE, 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 | |||
| FP GREENBRIER CIRCLE, 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 | |||
| GTC I SECOND 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 | |||
(Signatures continued on next page)
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| FP HANOVER 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 | |||
| XXXXXXX CORPORATE CENTER, 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 | |||
| XXXXXX XX, 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 | |||
(Signatures continued on next page)
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| XXXXX XXX XXXXXXX, 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 | |||
| FP PARK CENTRAL V, 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 | |||
| XX XXXXXXX CENTER, 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 | |||
(Signatures continued on next page)
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| FP XXXX XXXX, 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 | |||
| RESTON BUSINESS CAMPUS, 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 | |||
| XX XXXXXX BEND, 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 | |||
(Signatures continued on next page)
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| FP 500 & 600 HP WAY, 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 | |||
| FP 0000 XXXXXXXXX XXX, 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 | |||
| XX XXXXXXXX PARK I, 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 | |||
(Signatures continued on next page)
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| XX XXXXXXXX PARK 6, 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 | |||
| XX XXXXXXXX PARK 7, 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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| XX XXXXXXXX PARK LAND, 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 | |||
| VIRGINIA CENTER, 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 XXXX PARK, 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 | |||
(Signatures continued on next page)
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| FP CRONRIDGE DRIVE, 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 | |||
| XX XXXXXX BUSINESS CENTER, 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 XXXXXX PLACE, 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 | |||
(Signatures continued on next page)
20
| TECHCOURT, 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 PARK CENTRAL 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 | |||
| FP TRIANGLE, 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 | |||
(Signatures continued on next page)
21
[Consent to Amendment No. 2 to Second Amended and Restated Revolving Credit
Agreement]
Agreement]
CONSENT OF 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
December 29, 2009 (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. In addition, the Guarantor hereby acknowledges and agrees to the
terms and conditions of this Amendment and Consent and the Credit Agreement and the other Loan
Documents as amended and supplemented 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 | ||||
22
ACCEPTED AND AGREED AS
OF THE 27 DAY OF
OCTOBER, 2010:
OF THE 27 DAY OF
OCTOBER, 2010:
| KEYBANK NATIONAL ASSOCIATION, as a Lender, as Swingline Lender, and as Administrative Agent |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Vice President | |||
(Signatures continue on next page)
23
| XXXXX FARGO NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Vice President | |||
(Signatures continue on next page)
24
| WACHOVIA BANK NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Vice President | |||
(Signatures continue on next page)
25
| BANK OF MONTREAL, as a Lender |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Director | |||
(Signatures continue on next page)
26
| PNC BANK, NATIONAL ASSOCIATION as Lender |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Vice President | |||
(Signatures continue on next page)
27
| CAPITAL ONE, N.A., (Sucessor by merger to Chevy Chase Bank) as a Lender |
||||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
(Signatures continue on next page)
28
| U.S. BANK NATIONAL ASSOCIATION as Lender |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
(Signatures continue on next page)
29
| TD BANK, N.A. as Lender |
||||
| By: | /s/ Xxxxxxxx Xxxxx | |||
| Name: | Xxxxxxxx Xxxxx | |||
| Title: | Vice President | |||
30
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.
31
EXHIBIT C-2
COMPLIANCE CERTIFICATE
Reference is hereby made to that certain Second Amended and Restated Revolving Credit
Agreement dated as of December 29, 2009, among First Potomac Realty Investment Limited Partnership
(the “FPLP”) and certain other borrowers (collectively, the “Borrowers”), First Potomac Realty
Trust (“Guarantor”), KeyBank National Association, individually and as Administrative Agent, and
certain other parties (as the same may now or hereafter be amended from time to time, the “Credit
Agreement”). Unless otherwise defined herein, the terms used in this Compliance Certificate and
Schedule 1 hereto have the meanings ascribed to such terms in the Credit Agreement.
This Compliance Certificate is submitted pursuant to the following sections of the Credit
Agreement:
| • | Section 8.4(e) (accompanying financial statements) | ||
| • | Section 8.13(a) (in connection with Removal of Eligible Unencumbered Property) | ||
| • | Section 8.13(c) (in connection with the addition of Real Estate Asset to Unencumbered Pool) | ||
| • | Section 9.4(b) (in connection with Sales or Indebtedness Liens) | ||
| • | Section 14.1 (in connection with default cure) |
The undersigned HEREBY CERTIFIES THAT:
I am the chief financial officer or accounting officer of the Borrower, and I am authorized by
each such entity to execute and deliver this Compliance Certificate on its behalf.
All of the real property comprising “Eligible Unencumbered Properties” within the meaning of
Section 1.1 of the Credit Agreement is listed on Annex 1 to Schedule 1 attached hereto.
The status of each property listed on Annex 1 has been reviewed by me and/or by employees or agents
under my immediate supervision. Based upon such review, I hereby certify that each property listed
on Annex 1:
| (a) | is a Permitted Property; |
| (b) | is free and clear of any Lien, other than Liens specially permitted to exist pursuant to Section 9.2 of the Credit Agreement; |
| (c) | is not the subject of a Disqualifying Environmental Event or Disqualifying Structural Event; and |
| (d) | is wholly-owned in fee simple by the Borrower. |
Accompanying this Compliance Certificate are consolidated financial statements of the
Guarantor, the Borrower and their respective Subsidiaries for the fiscal [year] [quarter] ended
_____ __ 200___ (the “Financial Statements”) prepared in accordance with GAAP (subject, in the case
of financial statements relating to the first three fiscal quarters, to year-end adjustments none
of which will be materially adverse, and to the absence of footnotes). The Financial Statements
present fairly the financial position of the Guarantor, the Borrowers and their respective
Subsidiaries as of the date thereof and the results of operations of the Guarantor, the Borrowers
and their respective Subsidiaries for the period covered thereby. The foregoing is also delivered
herewith for FPLP on a consolidated basis.
Schedule 1 hereto sets forth data and computations evidencing compliance with
Availability (separate certificate attached) and with the covenants contained in Section 10 of the
Credit Agreement and certain other calculations (the “Financial Covenants; Covenants Regarding
Eligible Unencumbered Property”) as of the relevant date of determination (the “Determination
Date”), all of which data and computations are true, complete and correct.
The activities of the Guarantor, the Borrowers and their respective Subsidiaries during the
period covered by the data and computations set forth in Schedule 1 have been reviewed by
me and/or by employees or agents under my immediate supervision. Based upon such review, during
such period, and as of the date of this Certificate, no Default or Event of Default has occurred
and is continuing, except as specifically disclosed herein or as has been previously disclosed in
writing to the Administrative Agent.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the undersigned has affixed his signature
below this _____ day of
_____, 200_____.
| FIRST POTOMAC REALTY INVESTMENT LIMITED PARTNERSHIP, for itself and as agent for each other Borrower | ||||||||
| By: | First Potomac Realty Trust, its sole general partner |
|||||||
| By: | ||||||||
| Xxxxx Xxxx | ||||||||
| Senior Vice President and | ||||||||
| Chief Financial Officer | ||||||||
