FIRST LETTER AMENDMENT
Exhibit 99.1
FIRST LETTER AMENDMENT
| Dated as of Xxxxxx 0, 0000 |
Xxxxxxxx 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 the Second Amended and Restated Credit Agreement dated as of December 7,
2007 (the “Credit Agreement”) by and among Xxxxx & Xxxxx Company (the “Borrower”), the guarantors
named therein, Deutsche Bank Trust Company Americas, 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. Capitalized terms not otherwise defined herein
shall have their respective meanings set forth in the Credit Agreement.
It is hereby agreed by you and us as follows:
Section 1. Amendments to Credit Agreement. The Credit Agreement is, upon the
occurrence of the Amendment Effective Date (as defined in Section 2 below), hereby amended as
follows:
(a) The definition of “Applicable Margin” set forth in Section 1.01 of the Credit
Agreement is hereby amended by (i) deleting the word “and” appearing immediately before the
start of clause (c), and (ii) inserting the following at the end thereof immediately prior
to the period: “, and (d) the Applicable Margin shall be at Pricing Level I until the
earlier of (i) the consummation of the sale contemplated in Section 5.02(e)(v)(A) and (ii)
Xxxxx 00, 0000”.
(x) The definition of “Debt for Borrowed Money” set forth in Section 1.01 of the Credit
Agreement is hereby amended by inserting the following at the end thereof immediately prior to
the period: “, including, without limitation, any Contingent Obligations of the Borrower and
its Restricted Subsidiaries”.
(c) Section 1.01 of the Credit Agreement is hereby amended by adding the following new
defined terms thereto in appropriate alphabetical order:
“Permitted TIC Syndication” means any tenant-in-common syndication effected by
the Borrower or its Restricted Subsidiaries that complies with each of the following
requirements: (a) such syndication is entered into in the ordinary course of the
Borrower’s business, (b) such syndication is not inconsistent with the business plan
of Borrower last discussed with the Lender Parties, (c) no Default has then occurred
and is continuing or would result from such syndication, (d) the Borrower satisfies,
and will continue to satisfy immediately after giving effect to such syndication,
the financial covenants set forth in Section 5.04, and (e) to the extent such
syndication is both first
entered into after December 31, 2007 and recourse to the Borrower or any of its
Restricted Subsidiaries, if the TIC Debt Service Coverage Ratio for such syndication
shall at any time be less than 1.00:1.00, then from and after such event, the amount
of any debt service payments related to assets acquired in connection with such
syndication shall be included in the calculation of Consolidated Fixed Charge
Coverage Ratio and Interest Coverage Ratio.
“TIC Debt Service Coverage Ratio” means, for any date of determination, for the
Measurement Period most recently ended, and with respect to any Permitted TIC
Syndication, the ratio of (a) Consolidated EBITDA to (b)(i) Consolidated Interest
Expense less (ii) Consolidated Interest Income for such Measurement Period;
provided, however, that (A) for purposes of this definition only, the terms
Consolidated EBITDA, Consolidated Interest Expense and Consolidated Interest Income
shall each be computed solely with respect to the applicable Permitted TIC
Syndication, treating the Permitted TIC Syndication for such purpose as if it were
the Borrower, and (B) for avoidance of doubt, the term Consolidated Interest Expense
shall be construed for purposes of this definition to include all scheduled
principal payments made during such Measurement Period on account of any Debt of the
Permitted TIC Syndication (exclusive of principal payments at maturity).
(d) Section 2.06(e) of the Credit Agreement is hereby amended by inserting the
following in clause (a) immediately after the word “quarter” and prior to the comma “(but
only until the consummation of the sale contemplated by Section 5.02(e)(v)),”.
(e) Sections 5.01(s) and 5.02(f)(xi) of the Credit Agreement are hereby amended by
deleting all references therein to “September 30, 2008” and substituting therefor “March 31,
2009”.
(f) Section 5.02(b)(iii)(F) of the Credit Agreement is hereby amended by (i) deleting
the word “and” appearing immediately before the start of clause (4), and (ii) inserting the
following at the end of such section immediately prior to the comma: “, and (5) in respect
of any guarantee of primary obligations of a Permitted TIC Syndication, provided that (A)
such primary obligations shall consist solely of obligations under a first-lien mortgage
loan, (B) the principal amount of such first-lien mortgage loan shall not exceed seventy
percent (70%) of the then current fair market value of the real estate assets securing such
mortgage loan, and (C) to the extent Contingent Obligations are first incurred after
December 31, 2007, such Contingent Obligations described in this clause (5) shall not exceed
$125,000,000 in the aggregate”.
(g) Section 5.02(b)(iv) is hereby amended by deleting the words “proviso thereto” at
the end thereof and substituting therefor the words “last sentence of the definition of
Limited Purpose Subsidiary”.
(h) Section 5.04(c) is hereby amended by deleting the ratio “2.00:1.00” in the fourth
row of the table therein and substituting therefor the ratio “2.25:1.00”.
Section 2. Effectiveness of Amendment. This First Letter Amendment (this “Amendment”)
shall become effective as of the date first above written (the “Amendment Effective Date”) solely
when (i) the Administrative Agent shall have received counterparts of this Amendment executed by
the Borrower, the Guarantors, the Administrative Agent and the Required Lenders or, as to any of
the Lender Parties, advice satisfactory to the Administrative Agent that such Lender Party has
executed this Amendment, (ii) the Administrative Agent shall have received counterparts of the
Consent
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attached hereto executed by the Guarantors, (iii) the Administrative Agent shall have received
payment in full of an amendment fee equal to 0.25% of the sum of the Revolving Credit Commitments
of those Lenders that have executed and delivered to the Administrative Agent a signature page to
this Amendment, which fee shall be for the ratable benefit of such Lenders and (iv) all fees and
expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the
Administrative Agent) due and payable on the date hereof shall have been paid in full and in
accordance with Section 4 below.
Section 3. Ratification. The Credit Agreement, as amended hereby, and each of the
other Loan Documents 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 Amendment shall
not operate as a waiver of any right, power or remedy of any Lender Party or the Administrative
Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
Section 4. Costs and Expenses. The Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this Amendment and the other
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.
Section 5. Counterparts. This Amendment 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 Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 6. Governing Law. This Amendment constitutes a Loan Document and shall be
governed by, and construed in accordance with, the laws of the State of New York.
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| Very truly yours, XXXXX & XXXXX COMPANY, as Borrower |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Executive Vice President and Chief Financial Officer | ||||
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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| Agreed as of the date first above written: DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent, a Lender, Issuing Bank and Swing Line Bank |
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| By | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Managing Director | |||
| By | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Director | |||
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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| JPMORGAN CHASE BANK, N.A., as a Lender |
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| By | /s/ Xxx X. Xxxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
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| KEYBANK NATIONAL ASSOCIATION, as a Lender |
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| By | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Senior Vice President | |||
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| FIFTH THIRD BANK, as a Lender |
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| By | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | VP | |||
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CONSENT
| Dated as of August 4, 2008 |
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, in favor of the
Administrative Agent, for its benefit and the benefit of the Lender Parties party to the Credit
Agreement referred to in the foregoing First Letter Amendment, hereby consents to such First Letter
Amendment and hereby confirms and agrees that notwithstanding the effectiveness of such First
Letter Amendment, the Guaranty is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects.
| XXXXX & XXXXX AFFILIATES, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX AFFILIATES, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX MANAGEMENT SERVICES, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX OF ARIZONA, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX ASSET SERVICES COMPANY |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
(Signatures continued on next page)
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| XXXXX & XXXXX CONSULTING SERVICES COMPANY |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX INSTITUTIONAL PROPERTIES, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX OF MICHIGAN, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX MORTGAGE GROUP, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX OF NEVADA, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX NEW YORK, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
(Signatures continued on next page)
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| XXXXX & XXXXX ADVISERS OF CALIFORNIA, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX SOUTHEAST PARTNERS, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| HSM INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| WM. X. XXXXX/XXXXX & XXXXX INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXXXXX HOSPITALITY INTERNATIONAL, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXXXXX SECURITIES, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| 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 | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| XXXXX & XXXXX EUROPE, INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Financial Officer | ||||
| NNN REALTY ADVISORS, INC. |
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| By | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Executive Vice President | ||||
| XXXXX & XXXXX REALTY INVESTORS, LLC |
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| By | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Executive Vice President | ||||
| TRIPLE NET PROPERTIES REALTY INC. |
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| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Chief Executive Officer | ||||
| XXXXX & XXXXX RESIDENTIAL MANAGEMENT INC. |
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| By | /s/ Xxxxxxxx XxXxxxx | |||
| Xxxxxxxx Xxxxxxx | ||||
| Chief Financial Officer | ||||
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