SUPPLEMENT TO LIMITED WAIVER
Exhibit 99.1
SUPPLEMENT TO LIMITED WAIVER
Dated as of April 28, 2009
Deutsche Bank Trust Company Americas,
as Administrative Agent under the
Credit Agreement referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Administrative Agent under the
Credit Agreement referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxx & Xxxxx Company Credit Facility
Ladies and Gentlemen:
Reference is made to (i) the Second Amended and Restated Credit Agreement dated as of December
7, 2007 (as amended, restated, supplemented or otherwise modified to date, the “Credit Agreement”)
by and among Xxxxx & Xxxxx Company (the “Borrower”), the guarantors named therein (the
“Guarantors”), Deutsche Bank Trust Company Americas, as a lender and as administrative agent (the
“Administrative Agent”), the financial institutions identified therein as lender parties (the
“Lender Parties”), Deutsche Bank Trust Company Americas, as syndication agent, and Deutsche Bank
Securities Inc., as sole book running manager and sole lead arranger, and (ii) the Limited Waiver
dated as of April 14, 2009 (the “Limited Waiver”) by and among the Borrower, the Administrative
Agent and the Lender Parties and consented to by the Guarantors. Capitalized terms used herein
without definition shall have the respective meanings ascribed to them in the Credit Agreement or
the Limited Waiver, as applicable.
The Borrower has requested that the Administrative Agent and the Lender Parties extend the
expiration of the existing Waiver Period to May 5, 2009 (the “Extended Waiver Period”) and, subject
to the terms and conditions of this Supplement to Limited Waiver (this “Supplement”, and together
with the Limited Waiver, the “Extended Limited Waiver”), the Administrative Agent and the Lender
Parties are willing to agree to such Extended Waiver Period.
At the request of the Borrower, and in consideration of the mutual undertakings herein
expressed, the Administrative Agent and the Lender Parties hereby waive compliance by the Loan
Parties with the provisions of Sections 5.01(s) and 5.03(b) of the Credit Agreement solely for the
duration of the Extended Waiver Period.
This Supplement shall become effective as of the date first above written solely when the
Administrative Agent shall have received (i) counterparts of this Supplement executed by the
Borrower, the Administrative Agent and each Lender Party, or, as to any of such Lender Parties,
advice satisfactory to the Administrative Agent that such Lender Party has executed this Supplement
and (ii) counterparts of the Consent attached hereto signed by each Guarantor.
The Extended Limited Waiver shall terminate and cease to be effective from and after the last
day of the Extended Waiver Period, and, from and after such date the Loan Parties shall be required
to comply with the provisions of Sections 5.01(s) and 5.03(b) of the Credit Agreement precisely as
written, without regard to the limited waivers set forth herein.
The waivers set forth herein shall be limited precisely as written, and nothing in this
Supplement or the Extended Limited Waiver shall be deemed to (x) constitute (i) a waiver of any
other Default or Event of Default, (ii) a waiver or amendment of any other term, provision or
condition of the
Credit Agreement, any of the other Loan Documents or any other instrument or agreement
referred to therein, or (iii) a waiver with regard to any matter beyond the expiration of the
Extended Waiver Period, or (y) prejudice any right or remedy that the Administrative Agent or any
Lender Party may now have or may have in the future under or in connection with the Credit
Agreement, the other Loan Documents or any other instrument or agreement referred to in any of them
or in equity or at law.
The Borrower agrees to pay on demand all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the preparation of this Supplement and the execution,
delivery and administration, modification and amendment of the Extended Limited Waiver and any
instruments and documents to be delivered hereunder (including, without limitation, the reasonable
fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section
9.04 of the Credit Agreement.
On and after the effectiveness of this Supplement, each reference in the Credit Agreement to
“this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof”
or words of like import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement, as affected by the Extended Limited Waiver.
The Credit Agreement, the Notes and each of the other Loan Documents, except to the extent of
the limited waiver specifically provided by the Extended Limited Waiver, are and shall continue to
be in full force and effect and are hereby in all respects ratified and confirmed. The execution,
delivery and effectiveness of this Supplement shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender Party or the Administrative Agent
under the Credit Agreement or any of the Loan Documents, nor constitute a waiver of any provision
of the Credit Agreement or any of the Loan Documents. This Supplement and the Extended Limited
Waiver shall constitute Loan Documents. This Supplement shall be deemed to comprise a “written
agreement” within the meaning of Section 3 of that certain Pre-Negotiation Agreement dated as of
February 27, 2009 among the Administrative Agent, the Borrower and the Guarantors.
If you agree to the terms and provisions hereof, please evidence such agreement by executing
and returning a counterpart of this Supplement to Xxxxxxx X. Xxxxxxxxxx of Shearman & Sterling LLP
by facsimile (000-000-0000), with three duplicate originals by overnight courier.
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This Supplement may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Supplement by telecopier shall be effective as delivery of
a manually executed counterpart of this Supplement.
This Supplement shall be governed by, and construed in accordance with, the laws of the State
of New York.
| Very truly yours, BORROWER |
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|
XXXXX & XXXXX COMPANY |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President & CFO | |||
(Signatures continued on next page)
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Agreed as of the date first above written:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent and a Lender
as Administrative Agent and a Lender
By:
|
/s/ Xxxxx Xxxxxxx
|
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| Title: Managing Director | ||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxx | ||||
| Title: Director |
(Signatures continued on next page)
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KEYBANK, NATIONAL ASSOCIATION,
as a Lender
as a Lender
By
|
/s/ Xxxxx X. Xxxxx
|
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| Title: Senior Vice President |
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| JPMORGAN CHASE BANK, N.A., as a Lender |
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| By | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | SVP | |||
(Signatures continued on next page)
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| FIFTH THIRD BANK, as a Lender |
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| By | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
(Signatures continued on next page)
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CONSENT
Dated as of April 28, 2009
Each of the undersigned, as a Guarantor under the Guaranty set forth in Article VIII of the
Second Amended and Restated Credit Agreement dated as of December 7, 2007 (as amended, restated,
supplemented or otherwise modified to date), in favor of the Administrative Agent, for its benefit
and the benefit of the Lender Parties party to the Credit Agreement, hereby consents to such
Supplement and hereby confirms and agrees that notwithstanding the effectiveness of such
Supplement, the Guaranty is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects
GUARANTORS: XXXXX & XXXXX AFFILIATES, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX AFFILIATES, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX MANAGEMENT SERVICES, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX OF ARIZONA, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX ASSET SERVICES COMPANY |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
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| XXXXX & XXXXX CONSULTING SERVICES COMPANY |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX INSTITUTIONAL PROPERTIES, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX OF MICHIGAN, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX MORTGAGE GROUP, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX OF NEVADA, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX NEW YORK, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
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| XXXXX & XXXXX ADVISERS OF CALIFORNIA, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX SOUTHEAST PARTNERS, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| HSM INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| WM. X. XXXXX/XXXXX & XXXXX INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXXXXX HOSPITALITY INTERNATIONAL, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXXXXX SECURITIES, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
(Signatures continued on next page)
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| XXXXX & XXXXX MANAGEMENT SERVICES OF MICHIGAN, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX EUROPE, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| NNN REALTY ADVISORS, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | EVP | |||
| XXXXX & XXXXX REALTY INVESTORS, LLC |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | EVP | |||
| TRIPLE NET PROPERTIES REALTY INC. |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | CFO | |||
| XXXXX & XXXXX RESIDENTIAL MANAGEMENT INC. |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | CFO | |||
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