SECOND AMENDMENT TO TERM LOAN AGREEMENT
Exhibit 10.2
SECOND AMENDMENT TO TERM LOAN AGREEMENT
This SECOND AMENDMENT TO TERM LOAN AGREEMENT (this “Amendment”) dated as of October 9, 2012, by and among LEXINGTON REALTY TRUST, a real estate investment trust formed under the laws of the State of Maryland (the “Trust”), LEPERCQ CORPORATE INCOME FUND L.P., a limited partnership formed under the laws of the State of Delaware (“LCIF”), and LEPERCQ CORPORATE INCOME FUND II L.P., a limited partnership formed under the laws of the State of Delaware (collectively with the Trust and LCIF, the “Borrowers” and each a “Borrower”), each of the Lenders party hereto, and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Agent”).
WHEREAS, the Borrowers, the Lenders, the Agent and certain other parties have entered into that certain Term Loan Agreement dated as of January 13, 2012 (as in effect immediately prior to the date hereof, the “Term Loan Agreement”); and
WHEREAS, the Borrower, the Lenders and the Agent desire to amend certain provisions of the Term 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. Specific Amendments to Term Loan Agreement.
(a) The parties hereto agree that the Term Loan Agreement is amended by restating the second sentence of Section 2.15 in its entirety as follows:
Each such borrowing of Addition Loans must be an aggregate minimum amount of $50,000,000 and integral multiples of $10,000,000 in excess thereof (or such other amounts as may be acceptable to the Administrative Agent and the Trust).
(b) The parties hereto agree that the Term Loan Agreement is amended by deleting the word “and” at the end of Section 9.2(f), restating Section 9.2(g) in its entirety as follows and adding the following new subsections (h) and (i) immediately following Section 9.2(g):
(g) The Trust may redeem or repurchase its Preferred Equity Interests, at par or at a discount;
(h) The Trust may declare and make Restricted Payments to the extent paid and payable solely in Equity Interests (other than Mandatorily Redeemable Stock) of the Trust; and
(i) The Trust may make Restricted Payments in the form of cash payments to holders of securities convertible into or exchangeable for common stock of the Trust in connection with the Trust's acquisition of such securities in an aggregate amount not to exceed $20,000,000 during the term of this Agreement.
Section 2. Conditions Precedent. The effectiveness of this Amendment is subject to receipt by the Agent of each of the following, each in form and substance satisfactory to the Agent:
(a) A counterpart of this Amendment duly executed by the Borrowers and the Lenders;
(b) A Guarantor Acknowledgement 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. Each Borrower represents and warrants to the Agent and each Lender as follows:
(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 obligations hereunder and under the Term Loan Agreement, as amended by this Amendment, in accordance with their respective terms. This Amendment has been duly executed and delivered by the duly authorized officers of each Borrower and each of this Amendment and the Term Loan Agreement, as amended by this Amendment, is a legal, valid and binding obligation of each Borrower enforceable against each Borrower in accordance with its respective terms except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations (other than the payment of principal) contained herein or therein and as may be limited by equitable principles generally.
(b) Compliance with Laws, etc. The execution and delivery by each Borrower of this Amendment and the performance by each Borrower of this Amendment and the Term Loan 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 relating to any Borrower; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of any Borrower or any indenture, agreement or other instrument to which any Borrower is a party or by which it or any of its 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 the Borrower.
(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 Borrowers to the Agent and the Lenders in the Term Loan 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 Term Loan Agreement in any of the Loan Documents shall be deemed to be a reference to the Term Loan Agreement as amended by this Amendment.
Section 6. Expenses. The Borrower shall reimburse the Agent upon demand for all reasonable out-of-pocket costs and expenses (including attorneys' fees) actually incurred by the Agent in connection with the preparation, negotiation and execution of this Amendment and the other agreements and documents executed and delivered in connection herewith.
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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 LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE (INCLUDING, FOR SUCH PURPOSE, SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK).
Section 9. Effect. Except as expressly herein amended, the terms and conditions of the Term Loan Agreement and the other Loan Documents remain in full force and effect. The amendment contained herein shall be deemed to have prospective application only.
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 Term Loan Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Term Loan Agreement to be executed as of the date first above written.
By: | /s/ Xxxxxx X. Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Executive Vice President | |
LEPERCQ CORPORATE INCOME FUND L.P.
LEPERCQ CORPORATE INCOME FUND II L.P.
Each By: LEX GP-1 Trust, its sole general partner
By: | /s/ Xxxxxx X. Xxxxxxxxx | |
Name: | Xxxxxx Xxxxxxxxx | |
Title: | Vice President | |
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[Signature Page to Second Amendment to Term Loan Agreement with Lexington Realty Trust et al.]
XXXXX FARGO BANK, National Association, as Agent and as a Lender
By: | /s/ D. Xxxxx Xxxxxxx | |
Name: | D. Xxxxx Xxxxxxx | |
Title: | Director | |
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[Signature Page to Second Amendment to Term Loan Agreement with Lexington Realty Trust et al.]
KEYBANK NATIONAL ASSOCIATION
By: | /s/ Xxxx X. XxXxxxx | |
Name: | Xxxx X. XxXxxxx | |
Title: | Vice President | |
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[Signature Page to Second Amendment to Term Loan Agreement with Lexington Realty Trust et al.]
REGIONS BANK
By: | /s/ Xxxxx X. Xxxxxx | |
Name: | Xxxxx X. Xxxxxx | |
Title: | Vice President | |
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[Signature Page to Second Amendment to Term Loan Agreement with Lexington Realty Trust et al.]
CAPITAL ONE, N.A.
By: | /s/ Xxxxxxxxx X. Xxxxxxx | |
Name: | Xxxxxxxxx X. Xxxxxxx | |
Title: | Vice President | |
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[Signature Page to Second Amendment to Term Loan Agreement with Lexington Realty Trust et al.]
BRANCH BANKING AND TRUST COMPANY
By: | /s/ Ahaz X. Xxxxxxxxx | |
Name: | Ahaz X. Xxxxxxxxx | |
Title: | Assistant Vice President | |
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[Signature Page to Second Amendment to Term Loan Agreement with Lexington Realty Trust et al.]
TD BANK, N.A.
By: | /s/ Xxxxx X. Xxxxx | |
Name: | Xxxxx X. Xxxxx | |
Title: | Sr. Vice President | |
EXHIBIT A
FORM OF GUARANTOR ACKNOWLEDGEMENT
THIS GUARANTOR ACKNOWLEDGEMENT dated as of October ___, 2012 (this “Acknowledgement”) executed by each of the undersigned (the “Guarantors”) in favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Agent”) and each “Lender” a party to the Term Loan Agreement referred to below (the “Lenders”).
WHEREAS, Lexington Realty Trust, a real estate investment trust formed under the laws of the State of Maryland (the “Trust”), Lepercq Corporate Income Fund L.P., a limited partnership formed under the laws of the State of Delaware (“LCIF”), and Lepercq Corporate Income Fund II L.P., a limited partnership formed under the laws of the State of Delaware (collectively with the Trust and LCIF, the “Borrowers” and each a “Borrower”), the Lenders, the Agent and certain other parties have entered into that certain Term Loan Agreement dated as of January 13, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “Term Loan Agreement”);
WHEREAS, each of the Guarantors is a party to that certain Guaranty dated as of January 13, 2012 (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 Term Loan Agreement on the terms and conditions contained in the Guaranty;
WHEREAS, the Borrower, the Agent and the Lenders are to enter into a Second Amendment to Term Loan Agreement dated as of the date hereof (the “Amendment”), to amend the terms of the Term Loan 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 Acknowledgement.
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 ACKNOWLEDGMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE (INCLUDING, FOR SUCH PURPOSE, SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAWS OF THE STATE OF NEW YORK)..
Section 3. Counterparts. This Acknowledgement 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.
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guarantor Acknowledgement as of the date and year first written above.
GUARANTORS:
LEX GP-1 TRUST
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
PHOENIX HOTEL ASSOCIATES LIMITED PARTNERSHIP
By: Lepercq Corporate Income Fund II L.P.,
its sole general partner
By: Lex GP-1 Trust, its sole general partner
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
LSAC OPERATING PARTNERSHIP L.P.
By: LSAC General Partner LLC, its sole general partner
By: LRA Manager Corp., its manager
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
LXP I, L.P.
By: LXP I Trust, its sole general partner
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
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[Signature Page to Guarantor Acknowledgement for Lexington Realty Trust et al.]
LEXINGTON ACQUIPORT COMPANY, LLC
LEXINGTON XXXXXX MANAGER LLC
LEXINGTON MLP WESTERVILLE MANAGER LLC
LEXINGTON LAC LENEXA GP LLC
LEXINGTON COLUMBUS GP LLC
LEX WESTERVILLE GP LLC
LEX ROCK XXXX XX LLC
LEXINGTON XXXXX MANAGER LLC
LEX CHILLICOTHE GP LLC
LEXINGTON LAKEWOOD MANAGER LLC
LEXINGTON MILLINGTON MANAGER LLC
ACQUIPORT 550 MANAGER LLC
ACQUIPORT 600 MANAGER LLC
ACQUIPORT WINCHESTER MANAGER LLC
LEXINGTON BRISTOL GP LLC
LEXINGTON DULLES MANAGER LLC
LEXINGTON XXXXXXXX MANAGER LLC
LEXINGTON FORT STREET TRUSTEE LLC
LEXINGTON HONOLULU MANAGER LLC
LEXINGTON SOUTHFIELD LLC
LEXINGTON TOY TRUSTEE LLC
LEXINGTON OLIVE BRANCH MANAGER LLC
LEXINGTON LAKE FOREST MANAGER LLC
LEXINGTON WALLINGFORD MANAGER LLC
LEXINGTON HIGH POINT MANAGER LLC
LEXINGTON COLLIERVILLE MANAGER LLC
LEXINGTON LOUISVILLE MANAGER LLC
LEXINGTON TNI WESTLAKE MANAGER LLC
LEXINGTON SHELBY GP LLC
LEXINGTON TAMPA GP LLC
LEX GP HOLDING LLC
LEX ST. JOSEPH GP LLC
By: LRA Manager Corp., each of their manager
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
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[Signature Page to Guarantor Acknowledgement for Lexington Realty Trust et al.]
XXXXXXX ALTENN GP LLC
XXXXXXX XXXXX GP LLC
XXXXXXX BASOT GP LLC
XXXXXXX XXXXXXXX GP LLC
XXXXXXX CLIFMAR GP LLC
XXXXXXX DALHILL GP LLC
XXXXXXX ELWAY GP LLC
XXXXXXX GERSANT GP LLC
XXXXXXX JACWAY GP LLC
XXXXXXX JLE WAY GP LLC
XXXXXXX JOHAB GP LLC
XXXXXXX LANMAR GP LLC
XXXXXXX LIROC GP LLC
XXXXXXX SALISTOWN GP LLC
XXXXXXX SUNWAY GP LLC
XXXXXXX SUPERWEST GP LLC
XXXXXXX WALANDO GP LLC
XXXXXXX WASHTEX GP LLC
LEXINGTON ACQUIPORT SIERRA LLC
LEX-PROPERTY HOLDINGS LLC
NK-ODW/COLUMBUS PROPERTY MANAGER LLC
NK-LUMBERTON PROPERTY MANAGER LLC
NK-CINN XXXXXXXX PROPERTY MANAGER LLC
LSAC CROSSVILLE MANAGER LLC
LEXINGTON WAXAHACHIE MANAGER LLC
XXXXXXX MLP UNIT LLC
MLP UNIT PLEDGE GP LLC
LEXINGTON LION CARY GP LLC
LEXINGTON BULVERDE MANAGER LLC
LEXINGTON CENTENNIAL MANAGER LLC
LEXINGTON LION PLYMOUTH GP LLC
XXX XXXXXX GP LLC
By: LRA Manager Corp., each of their manager
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
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[Signature Page to Guarantor Acknowledgement for Lexington Realty Trust et al.]
LEXINGTON REALTY ADVISORS, INC.
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
LEXINGTON DURHAM INC.
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
MLP UNIT PLEDGE L.P.
By: MLP Unit Pledge GP LLC, its sole general partner
By: LRA Manager Corp., its manager
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
LEXINGTON/LION VENTURE L.P.
By: LXP GP LLC, its sole general partner
By: LRA Manager Corp., its manager
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
LEX LP-1 TRUST
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
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[Signature Page to Guarantor Acknowledgement for Lexington Realty Trust et al.]
LSAC GENERAL PARTNER LLC
By: LRA Manager Corp., its manager
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
LXP I TRUST
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
LXP GP LLC
By: LRA Manager Corp., its manager
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
ACQUIPORT SIERRA MANAGER CORP.
By: | ||
Name: | Xxxxxx X. Xxxxxxxxx | |
Title: | Vice President | |
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