Exhibit 4(rr)
FIRST AMENDMENT TO TERM LOAN
AGREEMENT
THIS FIRST AMENDMENT TO TERM LOAN
AGREEMENT (this “Amendment”) dated as of May 7,
2009, by and among WASHINGTON REAL ESTATE INVESTMENT TRUST (the
“Borrower”), each of the financial institutions a
signatory thereto together with their assignees under
Section 13.7. (the “Lenders”) and WELLS FARGO
BANK, NATIONAL ASSOCIATION (the “Agent”).
WHEREAS, the Borrower, the Lenders
and the Agent have entered into that certain Term Loan Agreement
dated as of February 21, 2008, as modified by the Modification
Agreement, dated as of May 6, 2008 between the Borrower and Wells
Fargo Bank, National Association, as the sole Lender (as amended,
supplemented, restated, or otherwise modified from time to time,
the “Loan Agreement”);
WHEREAS, the Borrower, the Lenders
party hereto and the Agent desire to amend the Loan Agreement to
amend certain provisions of the Loan Agreement on the terms and
conditions contained herein;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto
hereby agree as follows:
Section 1. Definitions .
Capitalized terms used in this Amendment and not otherwise defined
herein shall have the respective meanings given such terms in the
Loan Agreement.
Section 2. Specific
Amendments to Loan Agreement . The parties hereto agree that
the Loan Agreement is amended as follows:
(a) The Loan Agreement is amended by
restating the definitions of “Applicable Margin”,
“Interest Period”, “LIBOR”,
“Post-Default Rate” and “Termination Date”
set forth in Section 1.1 of the Loan Agreement in their
entireties as follows:
“Applicable
Margin” means
(a) for the period from the Agreement Date up to but excluding
the First Amendment Effective Date, (i) 1.50% with respect to
LIBOR Loans and (ii) 0.0% with respect to Base Rate Loans and
(b) for the period from the First Amendment Effective Date and
thereafter, 2.75%.
“Interest
Period” means
(a) for the period from the Agreement Date up to but excluding
the First Amendment Effective Date, with respect to any LIBOR Loan,
each period commencing on the date such LIBOR Loan is made or the
last day of the next preceding Interest Period for such Loan and
ending on the numerically corresponding day in the first, second,
third or sixth calendar month thereafter, as the Borrower may
select in a Notice of Continuation or Notice of Conversion, as the
case may be, except that each Interest Period that commences on the
last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate
subsequent
calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month, and
(b) for the period from the First Amendment Effective Date and
thereafter, with respect to any LIBOR Loan, each period of one
month commencing on the first Business Day of a calendar month and
ending on the date immediately preceding the first Business Day of
the next calendar month.
Notwithstanding the foregoing:
(a) if any Interest Period would otherwise end after the
Termination Date, such Interest Period shall end on the Termination
Date and (b) notwithstanding the immediately preceding clause
(a), no Interest Period of a LIBOR Loan shall have a duration of
less than one month and, if the Interest Period for any Loan would
otherwise be a shorter period, such Loan shall not be available
hereunder for such period.
“LIBOR”
means, for any LIBOR Loan for any
Interest Period therefor, the average rate of interest per annum at
which deposits in immediately available funds in Dollars are
offered to the Agent (at approximately 11:00 a.m. Eastern time, two
Business Days prior to the first day of such Interest Period) by
first class banks in the interbank Eurodollar market where the
Eurodollar operations of the Agent are customarily conducted, for
delivery on the first day of such Interest Period, such deposits
being for a period of time equal or comparable to such Interest
Period and in an amount equal to or comparable to the principal
amount of the LIBOR Loan to which such Interest Period relates.
Each determination of LIBOR by the Agent shall, in absence of
demonstrable error, be conclusive and binding. Notwithstanding the
foregoing, if at any time the Borrower does not maintain interest
rate cap, swap or collar agreements or other agreements or
arrangements to provide protection against fluctuations in interest
(an “Interest Rate Protection Mechanism”) as to
a notional amount equal to at least 100% of the outstanding
principal balance of the Loans (which Interest Rate Protection
Mechanism shall be on terms, for periods and with counterparties
reasonably acceptable to Agent), then LIBOR for a portion of the
Loans equal to the total principal balance of the Loans in excess
of the notional amount of such Interest Rate Protection Mechanism
shall not, in any event, be less than one and three-quarters of one
percent (1.75%). Further, for any period during which the Borrower
does maintain an Interest Rate Protection Mechanism as to a
notional amount equal to at least 100% of the outstanding principal
balance of the Loans, provided that the floating rate under such
Interest Rate Protection Mechanism is determined by reference to
LIBOR and that the initial counterparty under such Interest Rate
Protection Mechanism is the Agent or an Affiliate of the Agent,
then notwithstanding the first sentence of this definition, LIBOR
for any Interest Period shall have the same meaning given to the
term LIBOR for the same period pursuant to such Interest Rate
Protection Mechanism.
“Post-Default
Rate” means, in
respect of the principal of any Loan or any other Obligation that
is not paid when due (whether at stated maturity, by acceleration,
by optional or mandatory prepayment or otherwise), a rate per annum
equal to the rate of interest then in effect plus three percent
(3.0%).
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“Termination
Date” means
November 1, 2011.
(b) The Loan Agreement is further
amended by adding the following definitions of “First
Amendment Effective Date”, “Replacement Rate” and
“Replacement Rate Loan” in the proper alphabetical
sequence in Section 1.1 of the Loan Agreement:
“First Amendment Effective
Date” means
May 7, 2009.
“Replacement
Rate” means the per
annum rate of interest equal to the Federal Funds Rate plus one and
one-half of one percent (1.50%) plus the Applicable Margin.
Notwithstanding the foregoing, if at any time the Borrower does not
maintain an Interest Rate Protection Mechanism as to a notional
amount equal to at least 100% of the outstanding principal balance
of the Loans (which Interest Rate Protection Mechanism shall be on
terms, for periods and with counterparties reasonably acceptable to
Agent), then the Replacement Rate for a portion of the Loans equal
to the total principal balance of the Loans in excess of the
notional amount of such Interest Rate Protection Mechanism shall
not, in any event, be less than four and three-quarters of one
percent (4.75%).
“Replacement Rate
Loan” means a Loan
bearing interest at the Replacement Rate.
(c) The Loan Agreement is further
amended by restating Section 2.2.(a) of the Loan Agreement in
its entirety as follows:
(a) Rates . The Borrower
promises to pay to the Agent for the account of each Lender
interest on the unpaid principal amount of the Loan made by such
Lender for the period from and including the date of the making of
such Loan to but excluding the date such Loan shall be paid in
full, at the following per annum rates:
(i) for the period from the
Agreement Date up to but excluding the First Amendment Effective
Date, with respect to any portion of such Loan that is a Base Rate
Loan, at the Base Rate (as in effect from time to time), plus the
Applicable Margin for Base Rate Loans; and with respect to any
portion of such Loan that is a LIBOR Loan, at LIBOR for such Loan
for the Interest Period therefor, plus the Applicable Margin for
LIBOR Loans; and
(ii) for the period from the First
Amendment Effective Date and thereafter, at LIBOR for the Interest
Period, plus the Applicable Margin; provided, that if any
Lender’s Loans, or all Lenders’ Loans, are converted
into Replacement Rate Loans by reason of the circumstances
specified in Sections 5.1.(b), 5.2., or 5.3., then such
Lender’s Loans, or all Lender’s Loans, as the case may
be, shall bear interest at the per annum rate equal to the
Replacement Rate, which Replacement Rate shall become effective in
accordance with the provisions of 5.2. and 5.5, as applicable, or
on such date as the Agent may specify to the Borrower. So long as
LIBOR is available and the Lenders have not suspended or
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ceased to continue LIBOR Loans in
accordance with Article V., on the last day of each Interest Period
such Loan shall automatically continue as a LIBOR Loan for one
additional Interest Period, in which case the per annum rate will
be LIBOR for such new Interest Period, plus the Applicable
Margin.
Notwithstanding the foregoing,
during the continuance of an Event of Default, the Borrower shall
pay to the Agent for the account of each Lender interest at the
Post-Default Rate on the outstanding principal amount of the Loan
made by such Lender and on any other amount payable by the Borrower
hereunder or under the Note held by such Lender to or for the
account of such Lender (including without limitation, accrued and
due but unpaid interest to the extent permitted under Applicable
Law).
(d) The Loan Agreement is further
amended by restating Section 2.5.(a) of the Loan Agreement in
its entirety as follows:
(a) Optional . Subject to
Section 3.6.(b) and Section 5.4., the Borrower may prepay
the Loans, in whole or in part, at any time without premium or
penalty. The Borrower shall give the Agent at least 3 Business Days
prior written notice of the prepayment of any Loan.
(e) The Loan Agreement is further
amended by restating Sections 2.7. and 2.8. of the Loan Agreement
in their entireties as follows:
Section 2.7.
Reserved.
Section 2.8.
Reserved.
(f) The Loan Agreement is further
amended by restating Section 3.5.(a) of the Loan Agreement in
its entirety as follows:
(a) Reserved .
(g) The Loan Agreement is further
amended by restating Section 3.6.(b) of the Loan Agreement in
its entirety as follows:
(b) Prepayment Fee . If LIBOR
Loans are prepaid on or before November 30, 2010, the Borrower
shall pay to the Agent for the benefit of each Lender, a prepayment
fee equal to one percent (1.00%) times the amount of such
prepayment. If LIBOR Loans are prepaid after November 30, 2010
but on or before May 31, 2011, the Borrower shall pay to the
Agent for the benefit of each Lender, a prepayment fee equal to
one-quarter of one percent (0.25%) times the amount of such
prepayment. No prepayment fee shall be due with respect to any
LIBOR Loans that are prepaid after May 31, 2011, and no
prepayment fee shall to applicable to any prepayment of a
Replacement Rate Loan.
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(h) The Loan Agreement is further
amended by restating Section 5.1.(b) of the Loan Agreement in
its entirety as follows:
(b) Lender’s Suspension of
LIBOR Loans. Without limiting the effect of the provisions of
the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional
Costs based on or measured by the excess above a specified level of
the amount of a category of deposits or other liabilities of such
Lender that includes deposits by reference to which the interest
rate on LIBOR Loans is determined as provided in this Agreement or
a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or
assets that it may hold, then, if such Lender so elects by notice
to the Borrower (with a copy to the Agent), the obligation of such
Lender to continue any Loan as a LIBOR Loan hereunder shall be
suspended until such Regulatory Change ceases to be in effect (in
which case the provisions of Section 5.5. shall
apply).
(i) The Loan Agreement is further
amended by restating Sections 5.2., 5.3., 5.4. and 5.5. of the Loan
Agreement in their entireties as follows:
Section 5.2. Suspension of
LIBOR Loans.
Anything herein to the contrary
notwithstanding, if, on or prior to the determination of LIBOR for
any Interest Period:
(a) the Agent reasonably determines
(which determination shall be conclusive) that quotations of
interest rates for the relevant deposits referred to in the
definition of LIBOR are not being provided in the relevant amounts
or for the relevant maturities for purposes of determining rates of
interest for LIBOR Loans as provided herein or is otherwise
unable
