Exhibit 99.1
Execution Copy
FIFTH AMENDMENT TO THE NOTE PURCHASE AGREEMENT
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FIFTH AMENDMENT, dated as of April 18, 2007 (the "Fifth
Amendment"), to the Note Purchase Agreement, dated as of August 10, 2001, as
amended by the first amendment thereto dated as of July 1, 2003, the second
amendment thereto dated as of August 4, 2004, the third amendment thereto dated
as of February 28, 2005 and the fourth amendment thereto dated as of June 30,
2006 (as so amended, the "Note Purchase Agreement"), by and among Cascade
Investment, L.L.C., a Washington limited liability company ("Buyer"), GAMCO
Investors, Inc., a New York corporation formerly known as Gabelli Asset
Management Inc. ("Seller"), Xxxxx X. Xxxxxxx ("Gabelli"), GGCP, Inc., a New York
corporation formerly known as Gabelli Group Capital Partners, Inc. ("GGCP"), Rye
Holdings, Inc., a New York corporation ("Rye Holdings") and Rye Capital
Partners, Inc., a Delaware corporation (collectively with Gabelli, GGCP and Rye
Holdings, the "Gabelli Stockholders" ). All capitalized terms used but not
defined herein which are defined in the Note Purchase Agreement (or in the Note,
as defined therein) shall have the meanings assigned to such terms in such
agreement.
RECITALS
A. The parties hereto desire to amend the Note Purchase
Agreement and the Note in the manner set forth below.
B. Except as amended below, the Note Purchase Agreement, the
Registration Rights Agreement and the Note (collectively, the "Transaction
Documents") shall remain in full force and effect as they were prior to this
Fifth Amendment.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each party, the parties hereto
agree as follows:
1. Amendment of the Note. The parties hereto hereby amend the
Note so that from and after the date of this Fifth Amendment and until Maturity,
the Exercise Date shall become December 17, 2007 (the "Note Amendment").
Concurrently with the execution and delivery of this Fifth Amendment, Seller is
delivering to Buyer, in exchange for the duly executed outstanding Note, a duly
executed amended Note in the form of Exhibit A hereto, which is identical to the
outstanding Note in all respects except that it gives effect to the Note
Amendment. The parties agree that the amended Note is a replacement of the
outstanding Note and evidences the same debt, and is entitled to the same
benefits as, the outstanding Note except to the extent otherwise provided by the
Note Amendment. The parties also agree that neither this Fifth Amendment nor the
amended Note shall affect any rights or obligations under the Note Purchase
Agreement or Note with respect to any periods, acts, omissions or circumstances
which occurred prior to the date of this Fifth Amendment. From and after the
execution and delivery of this Fifth Amendment, all references in the
Transaction Documents to the Note shall be deemed to be references to the Note
as amended by the Note Amendment.
2. Letter of Credit. Concurrently with the execution and
delivery of this Fifth Amendment, the Seller is delivering to Buyer an amendment
to the Letter of Credit duly executed by the Letter of Credit Issuer which
extends the expiration date of the Letter of Credit until December 24, 2007 (the
"Letter of Credit Amendment"). From and after the execution and delivery of this
Fifth Amendment, all references in the Transaction Documents to the Letter of
Credit shall be deemed to be references to the Letter of Credit as amended by
the Letter of Credit Amendment.
3. References to Agreement. From and after the execution and
delivery of this Fifth Amendment, all references in the Transaction Documents to
the Agreement shall be deemed to be references to the Agreement as amended by
this Fifth Amendment.
4. Amendment to Registration Rights Agreement. To the extent
provided herein, this Fifth Amendment shall be an amendment of the Registration
Rights Agreement.
5. Miscellaneous. Sections 2.1.1, 2.1.4, 2.1.5, and 6 of the
Note Purchase Agreement are incorporated herein by reference, mutandis mutandi,
with all references therein to any of the Transaction Documents being changed to
refer solely to this Fifth Amendment.
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SIGNATURE PAGE - FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENT
NOTICE: ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment as of the date first mentioned above.
SELLER: BUYER:
GAMCO INVESTORS, INC. CASCADE INVESTMENT, L.L.C.
BY: ________________________________ BY: ____________________________
GABELLI STOCKHOLDERS:
___________________________________
XXXXX X. XXXXXXX
GGCP, INC.
BY: ________________________________
RYE HOLDINGS, INC.
BY: ________________________________
RYE CAPITAL PARTNERS, INC.
BY: ________________________________
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EXHIBIT A
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FORM OF CONVERTIBLE PROMISSORY NOTE (AS AMENDED)
