THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO CREDIT
AGREEMENT (this “Amendment”) dated as of December 18, 2007, but effective
as of February 1, 2007 (the “Effective Date”) by and among LEXINGTON REALTY
TRUST (formerly known as LEXINGTON CORPORATE PROPERTIES TRUST), a real estate
investment trust formed under the laws of the State of Maryland, LEPERCQ
CORPORATE INCOME FUND L.P., a limited partnership formed under the laws of
the
State of Delaware, LEPERCQ CORPORATE INCOME FUND II L.P., a limited partnership
formed under the laws of the State of Delaware, NET 3 ACQUISITION L.P., a
limited partnership formed under the laws of the State of Delaware
(collectively, the “Borrowers” and each a “Borrower”), each of Lenders party
hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent (the
“Agent”).
WHEREAS,
the Borrowers, the Lenders,
the Agent and certain other parties have entered into that certain Credit
Agreement dated as of June 27, 2005 (as amended and in effect immediately
prior to the date hereof, the “Credit Agreement”) and the parties hereto desire
to amend certain provisions of the Credit 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. Specific
Amendment to Credit
Agreement. The parties hereto agree that subsection (f)
of Section 9.1. of the Credit Agreement is restated in its entirety as
follows:
(f) Minimum
Net
Worth. Tangible Net Worth at any time to be less than
(i) $845,175,000 plus (ii) 75.0%
of the Net Proceeds of all Equity Issuances effected by the Trust or any
Subsidiary after March 31, 2005 (other than (x) Equity Issuances to the
Trust or any Subsidiary and (y) Equity Issuances by the Trust or any
Subsidiary, to the extent the proceeds thereof are used at the time of
such
Equity Issuance, or within twelve months of such Equity Issuance, to redeem,
repurchase or otherwise acquire or retire any other Equity Interest (other
than
Mandatorily Redeemable Stock) of the Trust or such Subsidiary, as the case
may
be).
(a)
A counterpart of this Amendment duly executed by the Borrowers and Lenders
constituting the Requisite Lenders;
(b)
An Acknowledgment substantially in the form of Exhibit A attached hereto,
executed by each Guarantor; and
(c)
Such other documents, instruments and agreements as the Agent may reasonably
request.
Section 3. Representations. The
Borrowers represent and warrant to the Agent and the Lenders that:
(a)
Authorization. Each
Borrower has the right and power, and has taken all necessary action to
authorize it, to execute and deliver this Amendment and to perform its
respective obligations hereunder and under the Credit Agreement, as amended
by
this Amendment, in accordance with their respective terms. This
Amendment has been duly executed and delivered by a duly authorized officer
of
each Borrower and each of this Amendment and the Credit Agreement, as amended
by
this Amendment, is a legal, valid and binding obligation of each Borrower
enforceable against such Borrower in accordance with its respective terms
except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles
of
general applicability.
(b)
Compliance with
Laws,
etc. The execution and delivery of this Amendment by each
Borrower and the performance by each Borrower of this Amendment and the Credit
Agreement, as amended by this Amendment, in accordance with their respective
terms, do not and will not, by the passage of time, the giving of notice
or
otherwise: (i) require any Government Approvals or violate any Applicable
Laws (including all Environmental Laws) relating to any Borrower or any other
Loan Party; (ii) conflict with, result in a breach of or constitute a
default under the organizational documents of any Borrower or any other Loan
Party or any indenture, agreement or other instrument to which any Borrower
or
any other Loan Party is a party or by which it or any of its respective
properties may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by any Borrower or any other Loan Party.
(c)
No
Default. No Default or Event of Default has occurred and is
continuing as of the date hereof nor will exist immediately after giving
effect
to this Amendment.
Section 4. Reaffirmation
of
Representations by Borrowers. Each Borrower hereby repeats and
reaffirms all representations and warranties made by such Borrower to the
Agent
and the Lenders in the Credit Agreement and the other Loan Documents to which
it
is a party on and as of the date hereof with the same force and effect as
if
such representations and warranties were set forth in this Amendment in
full.
Section 5. Certain
References. Each reference to the Credit Agreement in any of
the Loan Documents shall be deemed to be a reference to the Credit Agreement
as
amended by this Amendment.
Section 6. Expenses. The
Borrowers shall reimburse the Agent and each Lender upon demand for all costs
and expenses (including attorneys’ fees) incurred by the Agent or
such
-2-
Lender in connection
with the preparation, negotiation and execution of this Amendment and the
other
agreements and documents executed and delivered in connection
herewith.
Section 7. Benefits. This
Amendment shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 8. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 9. Effect. Except
as expressly herein amended, the terms and conditions of the Credit Agreement
and the other Loan Documents remain in full force and effect. The
amendments contained herein shall be deemed to have prospective application
only
beginning on the Effective Date.
Section 10. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed to be an original and shall be binding upon all parties, their successors
and assigns.
Section 11. Definitions. All
capitalized terms not otherwise defined herein are used herein with the
respective definitions given them in the Credit Agreement.
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IN
WITNESS WHEREOF, the parties hereto
have caused this Third Amendment to Credit Agreement to be executed as of
the
date first above written.
| LEXINGTON REALTY TRUST | ||
| By: |
/s/
Xxxxxxx
Xxxxxxx
|
|
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Chief Financial Officer | ||
|
LEPERCQ
CORPORATE INCOME FUND L.P.
|
||
| By: Lex GP-1 Trust, its sole general partner | ||
| By: |
/s/
Xxxxxxx
Xxxxxxx
|
|
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Chief Financial Officer | ||
|
LEPERCQ
CORPORATE INCOME FUND II L.P.
|
||
| By: Lex GP-1 Trust, its sole general partner | ||
| By: |
/s/
Xxxxxxx
Xxxxxxx
|
|
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Chief Financial Officer | ||
|
NET
3 ACQUISITION L.P.
|
||
| By: Lex GP-1 Trust, its sole general partner | ||
| By: |
/s/
Xxxxxxx
Xxxxxxx
|
|
| Name: Xxxxxxx Xxxxxxx | ||
| Title: Chief Financial Officer | ||
[Signatures
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[Signature
Page to Third Amendment to Credit Agreement
for
Lexington Realty Trust et al.]
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
individually and as Agent |
||
| By: |
/s/
Xxxxxx X.
Xxxxxx
|
|
| Name: Xxxxxx X. Xxxxxx | ||
| Title: Director | ||
|
KEYBANK
NATIONAL ASSOCIATION
|
||
| By: |
/s/
Xxxx X.
XxXxxxx
|
|
| Name: Xxxx X. XxXxxxx | ||
| Title: Vice President | ||
|
SOVEREIGN
BANK
|
||
| By: |
/s/
T. Xxxxxxx
Xxxxxxx
|
|
| Name: T. Xxxxxxx Xxxxxxx | ||
| Title: Senior Vice President | ||
|
PNC
BANK, N.A.
|
||
| By: |
/s/
Xxxxxxx
Xxxx
|
|
| Name: Xxxxxxx Xxxx | ||
| Title: Vice President | ||
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[Signature
Page to Third Amendment to Credit Agreement
for
Lexington Realty Trust et al.]
|
BRANCH
BANKING AND TRUST COMPANY
|
||
| By: |
/s/
Xxxxxx X.
Xxxxxxx
|
|
| Name: Xxxxxx X. Xxxxxxx | ||
| Title: Senior Vice President | ||
|
PEOPLES
BANK
|
||
| By: |
/s/
Xxxxxxx
Xxx
|
|
| Name: Xxxxxxx Xxx | ||
| Title: Vice President | ||
|
COMERICA
BANK
|
||
| By: |
/s/
Xxxxx
Xxxxxxxxx
|
|
| Name: Xxxxx Xxxxxxxxx | ||
| Title: Vice President | ||
|
CITIZENS
BANK OF RHODE ISLAND
|
||
| By: |
/s/
Xxxxxx
Xxxxx
|
|
| Name: Xxxxxx Xxxxx | ||
| Title: Vice President | ||
EXHIBIT
A
FORM
OF
GUARANTOR ACKNOWLEDGEMENT
THIS
GUARANTOR ACKNOWLEDGEMENT dated as
of December 18, 2007 (this “Acknowledgment”) executed by each of the
undersigned (the “Guarantors”) in favor of WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent (the “Agent”) and each Lender under the Credit Agreement referred to
below.
WHEREAS,
Lexington Realty Trust
(formerly known as Lexington Corporate Properties Trust), Lepercq Corporate
Income Fund L.P., Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition
L.P. (collectively, the “Borrowers”), the Lenders, the Agent and certain other
parties have entered into that certain Credit Agreement dated as of
June 27, 2005 (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”);
WHEREAS,
each of the Guarantors is a
party to that certain Guaranty dated as of June 27, 2005 (as amended,
restated, supplemented or otherwise modified from time to time, the “Guaranty”)
pursuant to which they guarantied, among other things, the Borrowers’
obligations under the Credit Agreement on the terms and conditions contained
in
the Guaranty;
WHEREAS,
the Borrowers, the Agent and
certain of the Lenders are to enter into a Third Amendment to Credit Agreement
dated as of the date hereof (the “Amendment”), to amend certain terms of the
Credit Agreement on the terms and conditions contained therein; and
WHEREAS,
it is a condition precedent to
the effectiveness of the Amendment that the Guarantors execute and deliver
this
Acknowledgment.
NOW,
THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged
by
the parties hereto, the parties hereto agree as follows:
Section
1. Reaffirmation. Each
Guarantor hereby reaffirms its continuing obligations to the Agent and the
Lenders under the Guaranty and agrees that the transactions contemplated
by the
Amendment shall not in any way affect the validity and enforceability of
the
Guaranty, or reduce, impair or discharge the obligations of such Guarantor
thereunder.
Section
2. Governing
Law. THIS REAFFIRMATION SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Counterparts. This
Reaffirmation may be executed in any number of counterparts, each of which
shall
be deemed to be an original and shall be binding upon all parties, their
successors and assigns.
IN
WITNESS WHEREOF, each Guarantor has
duly executed and delivered this Guarantor Acknowledgement as of the date
and
year first written above.
| Acquiport
LSL GP LLC, a Delaware limited liability company |
| By:
Lexington Realty Trust, its managing member, a Maryland statutory real estate investment trust |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
| Lex GP-1 Trust |
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lex
LP-1 Trust
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
BCBS L.L.C., a Delaware limited liability
company |
| By:
Lexington Realty Trust, its managing member, a Maryland statutory real estate investment trust |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Carrollton Manager LLC
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
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Third Amendment to Credit Agreement]
|
Lexington
Chelmsford Manager LLC
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Contributions Inc.
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Dover LLC
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Fort Street Trust
|
| By: Lexington Fort Street Trustee LLC |
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Foxboro II LLC
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
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Third Amendment to Credit Agreement]
|
Lexington
High Point Manager LLC
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Los Angeles Manager LLC
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Millington Manager LLC
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Multi-State Holdings L.P., a Delaware
limited partnership |
|
By:
Lexington Multi-State Holdings Manager LLC, its
sole general partner, a Delaware limited liability company
|
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
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[Signature
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to
Third Amendment to Credit Agreement]
|
Lexington
OC LLC, a Delaware limited liability
company |
| By:
Lepercq Corporate Income Fund II L.P., its managing member, a Delaware limited partnership |
| By:
Lex GP-1 Trust, its sole general partner, a Delaware statutory trust |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Olive Branch LLC, a Delaware limited
liability company |
| By:
Lexington Olive Branch Manager LLC, its managing member, a Delaware limited liability company |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Olive Branch Manager LLC
|
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
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Third Amendment to Credit Agreement]
|
Lexington
Realty Advisors, Inc.
|
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Southfield LLC
|
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Tennessee Holdings L.P., a Delaware limited
partnership |
| By:
Lex GP-1 Trust, its sole general partner, a Delaware statutory trust |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Texas Holdings L.P., a Delaware limited
partnership |
| By:
Lexington Texas Holdings Manager LLC, its sole general partner, a Delaware limited liability company |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Toys II Trust
|
| By: Lexington Toy Trustee LLC |
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
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[Signature
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Third Amendment to Credit Agreement]
|
Lexington
Wallingford Manager LLC
|
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Waxahachie L.P., a Delaware limited
partnership |
|
By:
Lexington Waxahachie Manager LLC, its sole
general partner, a Delaware limited liability company |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Lexington
Waxahachie Manager LLC, its sole general
partner, a Delaware limited liability company |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
LXP
GP, LLC
|
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
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LXP
I Trust
|
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
LXP
II, Inc.
|
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
LXP
I, L.P., a Delaware limited partnership
|
|
By:
LXP I Trust, its sole general partner, a Delaware
statutory trust |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
LXP
II, L.P., a Delaware limited partnership
|
|
By:
LXP II Inc., its sole general partner, a Delaware
corporation |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
LXP
ISS Holdings L.P., a Delaware limited partnership
|
|
By:
LXP ISS Holdings Manager LLC, its sole general
partner, a Delaware limited liability company |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
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Third Amendment to Credit Agreement]
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LXP
Memorial L.L.C., a Delaware limited liability
company |
|
By:
Lexington Realty Trust, its managing member, a
Maryland statutory real estate investment trust |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
LXP
Realty Income Fund L.P., a Delaware limited
partnership |
|
By:
LXP RIF Manager LLC, its sole general partner, a
Delaware limited liability company |
|
By:____________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Phoenix
Hotel Associates Limited Partnership
|
|
By:
Lepercq Corporate Income Fund II L.P., its sole
general partner, a Delaware limited partnership |
|
By:
Lex GP-1 Trust, its sole general partner, a
Delaware statutory trust |
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
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Third Amendment to Credit Agreement]
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Savannah
Waterfront Hotel LLC, a Delaware limited
liability company |
|
By:
Lepercq Corporate Income Fund L.P., its managing
member, a Delaware limited partnership |
|
By:
Lex GP-1 Trust, its sole general partner, a
Delaware statutory trust |
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Union
Hills Associates, an Arizona general partnership
|
|
By:
Union Hills Associates II, its managing general
partner, an Arizona general partnership |
|
By:
Lexington Realty Trust, its managing general
partner, a Maryland statutory real estate investment trust |
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
|
Union
Hills Associates II, its managing general
partner, an Arizona general partnership |
|
By:
Lexington Realty Trust, its managing general
partner, a Maryland statutory real estate investment trust |
|
By:___________________________
Name: X. Xxxxxx Eglin
Title: President
|
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Third Amendment to Credit Agreement]
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Lexington
Collierville L.P.
|
|
By: Lexington
Colliverville Manager LLC
|
|
By:___________________________
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
|
|
Lexington
Collierville Manager LLC
|
|
By:___________________________
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
|
|
Lexington
Westport Manager LLC
|
|
By:___________________________
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
|
|
Lexington
Xxxxxxxxx Manager LLC
|
|
By:___________________________
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
|
|
Lexington
Euro Holdings Ltd.
|
|
By:___________________________
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice
President
|
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Westport
View Corporate Center L.P.
|
|
By: Lexington
Westport Manager LLC
|
|
By:___________________________
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice
President
|
