SECOND AMENDMENT TO SECURED CREDIT AGREEMENT
Exhibit 10.2
SECOND AMENDMENT TO SECURED CREDIT AGREEMENT
This Second Amendment to Secured Credit Agreement (this “Amendment”) is made as of July 6, 2015 (the “Effective Date”), by and among XXXXX PROPERTIES, L.P. (the “Borrower”), KEYBANK NATIONAL ASSOCIATION, as “Administrative Agent,” and one or more existing or new “Lenders” shown on the signature pages hereof.
R E C I T A L S
A. Borrower, Administrative Agent and certain other Lenders have entered into a Secured Credit Agreement dated as of November 22, 2013, as amended by that certain (i) Amendment Regarding Increase dated Xxxxx 0, 0000, (xx) First Amendment to Secured Credit Agreement dated as of December 29, 2014, and (iii) Amendment Regarding Increase dated as of June 29, 2015 (as amended, the “Credit Agreement”). All capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders have agreed to provide the Borrower with a revolving credit facility in an aggregate principal amount of up to $310,000,000.00 and a term credit facility in an aggregate principal amount of $285,000,000.00. The Borrower, the Administrative Agent and the Lenders now desire to amend the Credit Agreement as more particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated into and made part of this Amendment.
2. From and after the Effective Date, clause (b) of the definition of the term “Change of Control” shall be deleted into its entirety and replaced with the following:
“(b) during any period of twelve (12) consecutive months ending after the date of this Agreement, individuals who at the beginning of any such twelve (12) month period constituted the Board of Directors of the Parent (together with any new directors whose election by such Board or whose nomination for election by the shareholders of the Parent was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors of the Parent then in office.”
3. From and after the Effective Date, the phrase “Preferred Distributions” now appearing in clause (c) of the definition of “Fixed Charges” shall be deleted and the following shall be substituted therefor: “Preferred Dividends”.
4. From and after the Effective Date, the definition of “Unmatured Default” shall be deleted in its entirety.
5. From and after the Effective Date, the two (2) references to the phrase “by noon (Eastern time)” in Section 2.18 of the Credit Agreement shall be deleted and the following shall be substituted therefor: “by 2:00 p.m. (Eastern time)”.
6. From and after the Effective Date, the penultimate sentence in Section 3.1(a) of the Credit Agreement shall be deleted and the following shall be substituted therefor:
“Subject to the foregoing, all payments made to the Administrative Agent on behalf of the Lenders, and actually received by the Administrative Agent on or before 2:00 p.m. (Eastern time) of such day, shall be deemed received by the Lenders on the date actually received by the Administrative Agent, and any sums actually received by the Administrative Agent after 2:00 p.m. (Eastern time) of such day, shall be deemed received by the Lenders on the next day.”
7. From and after the Effective Date, the phrase “, liquidity” shall be inserted immediately following the word “special deposit” in Section 3.5(b) of the Credit Agreement.
8. From and after the Effective Date, the first sentence contained in Section 3.6 of the Credit Agreement shall be deleted and the following shall be substituted therefor:
“If a Lender in good faith determines the amount of capital or liquidity required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling such Lender is increased as a result of a Change (as hereinafter defined), then, within fifteen (15) days after demand by such Lender, which shall include a description of the nature of the Change and the method used by such Lender to determine the amount of such increase, the Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender in good faith determines is attributable to this Agreement, its outstanding credit exposure hereunder or its obligation to make Loans hereunder (after taking into account such Lender’s policies as to capital adequacy and liquidity).”
9. The first and second sentence contained in the grammatical paragraph immediately following the Applicable Margin pricing chart Contained in Exhibit L to the Credit Agreement shall be deleted and the following shall be substituted therefor:
“The initial Applicable Margin shall be at Pricing Level 3. The initial Applicable Margin shall not be adjusted based upon the Leverage Ratio, if at all, until the first day of the first month following the delivery by the Borrower to the Administrative Agent of the Compliance Certificate after the end of a fiscal quarter.”
10. Borrower hereby represents and warrants that, as of the Effective Date, there is no Default or Event of Default, the representations and warranties contained in Article VI of the
Credit Agreement are true and correct in all material respects as of the Effective Date with respect to the Loan Parties in existence on the Effective Date except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date.
11. The undersigned Guarantors, having executed and joined in this Amendment as shown below, jointly and severally, hereby (i) approve and ratify this Amendment, (ii) confirm that they have previously joined in, or hereby join in, that certain Unconditional Guaranty of Payment and Performance dated as of November 22, 2013 (the "Guaranty"), that they are Guarantors under the Guaranty and that their obligations under the Guaranty will continue in full force and effect and (iii) agree to fully and timely perform each and every obligation of a Guarantor under such Guaranty.
12. Except as expressly modified as provided herein, the Credit Agreement shall continue in full force and effect. From and after the date hereof, this Amendment shall constitute one of the “Loan Documents” as such term is defined in the Credit Agreement. Moreover, from and after the date hereof, the “Credit Agreement” shall refer to the Credit Agreement as amended by this Amendment.
13. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Amendment by signing any such counterpart.
[Remainder of Page Left Intentionally Blank.]
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date first written above.
| XXXXX PROPERTIES, L.P., a Delaware limited partnership | |||
| By: | Xxxxx XX, LLC, a Delaware limited liability company, its General Partner | ||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
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Address:
Xxxxx Properties, Inc.
c/x Xxxxx Properties, L.P.
0000 Xxxxxx xx Xxx Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: General Counsel
Facsimile No: 000- 000-0000
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The undersigned, being all of the Guarantors under that certain Unconditional Guaranty of Payment and Performance dated as of November 22, 2013, hereby consent to the foregoing Second Amendment to Secured Credit Agreement.
| XXXXX PROPERTIES, L.P., a Delaware corporation | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| XXXXX PROPERTIES, INC., a Delaware limited a liability company | |||
| By: | /s/ Xxxxx Xxxxx | ||
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
[SIGNATURES CONTINUED ON NEXT PAGE]
| BIRCHWOOD MALL, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| CACHE VALLEY, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| COLONY SQUARE MALL L.L.C. | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
[SIGNATURES CONTINUED ON NEXT PAGE]
| GGP-GATEWAY MALL L.L.C. | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| LANSING ANCHOR ACQUISITION, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| LANSING MALL, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| MALL ST. XXXXXXX, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| NORTH PLAINS MALL, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
[SIGNATURES CONTINUED ON NEXT PAGE]
| SIERRA VISTA MALL, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| SILVER LAKE MALL, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| SPRING HILL ANCHOR ACQUISITION, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| SPRING HILL MALL L.L.C. | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
[SIGNATURES CONTINUED ON NEXT PAGE]
| THREE RIVERS MALL L.L.C. | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| WESTWOOD MALL, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: EVP, General Counsel and Secretary | |||
| WHITE MOUNTAIN MALL, LLC | |||
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By:
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/s/ Xxxxx Xxxxx | |
| Authorized Signatory | |||
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SOUTHLAND MALL, L.P.,
a Delaware limited partnership
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| By: | Southland GP, LLC, a Delaware,
its general partner
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Its: EVP, General Counsel and Secretary | |||
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SOUTHLAND MALL ANCHOR
ACQUISITION, LP, a Delaware limited partnership
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| By: | Southland Mall Anchor GP, LLC,
a Delaware, its general partner
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By:
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/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Its: EVP, General Counsel and Secretary | |||
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ADMINISTRATIVE AGENT:
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| KEYBANK NATIONAL ASSOCIATION, individually and as the Administrative Agent | |||
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By:
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/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
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Title: Assistant Vice President
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BANK OF AMERICA, N.A.,
individually and as Co-Syndication Agent
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By:
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/s/ Xxxx X. Xxxxx | |
| Name: Xxxx X. Xxxxx | |||
| Title: Vice President | |||
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ROYAL BANK OF CANADA,
individually and as Co-Syndication Agent
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | |||
| Title: Authorized Signatory | |||
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BARCLAYS BANK PLC
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By:
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/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Assistant Vice President | |||
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U.S. BANK NATIONAL ASSOCIATION,
a national banking association, individually and as Co-
Documentation Agent
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By:
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/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Senior Vice President | |||
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FIFTH THIRD BANK,
an Ohio Banking Corporation
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By:
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/s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Senior Vice President | |||
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CITIZENS BANK NATIONAL ASSOCIATION (FKA) RBS CITIZENS, N.A.
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By:
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/s/ Xxxxxx X. Xxxxx | |
| Name: Xxxxxx X. Xxxxx | |||
| Title: Senior Vice President | |||
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
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By:
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/s/ Xxxx X’Xxxx | |
| Name: Xxxx X’Xxxx | |||
| Title: Authorized Signatory | |||
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By:
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/s/ Xxxx XxxXxxxxx | |
| Name: Xxxx XxxXxxxxx | |||
| Title: Authorized Signatory | |||
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CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
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By:
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/s/ Xxxxxxxxx Xxxxxxxx | |
| Name: Xxxxxxxxx Xxxxxxxx | |||
| Title: Managing Director | |||
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By:
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/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Managing Director | |||
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THE HUNTINGTON NATIONAL BANK, national banking association
By: /s/ Xxxxxxxxxx Xxxxxxxxx
Name: Xxxxxxxxxx Xxxxxxxxx
Title: Assistant Vice President
The Huntington National Bank
200 Public Square, 7th Floor (CM-17)
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Huntington National Bank
2361 Xxxxx Road (NC1W26)
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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