SECOND LETTER AMENDMENT
Exhibit 4.1 and 10.2
EXECUTION VERSION
SECOND LETTER AMENDMENT
Dated as of September 30, 2008
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 the Second Amended and Restated Credit Agreement dated as of December 7,
2007 (as amended by that certain First Letter Amendment dated as of August 4, 2008, 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 3 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 deleting the pricing grid therein and substituting the following pricing grid
therefor:
| Applicable Margin | Applicable Margin | |||||
| Pricing | for Base Rate | for Eurodollar Rate | ||||
| Level | Debt/EBITDA Ratio | Advances | Advances | |||
| I | > 2.50:1.00 | 2.50% | 3.50% | |||
| II | > 1.50:1.00 but < 2.50:1.00 | 2.00% | 3.00% | |||
| III | < 1.50:1.00 | 1.50% | 2.50% |
(b) The definition of “Dividend/Share Repurchase Limitation” set forth in Section 1.01 of the
Credit Agreement is hereby deleted in its entirety.
(c) The definition of “Limited Purpose Subsidiary” is hereby amended by (i) inserting the
words “and/or owning” immediately prior to the words “and improving” in the fifth (5th) line
thereof and (ii) inserting the following sentence at the end thereof: “As of the Second Amendment
Effective Date, the Borrower acknowledges that the Limited Purpose Subsidiaries include (i) XXXX
Xxxxxx Centre LLC, (ii) XXXX 6400 Xxxxxx LLC, (iii) XXXX Danbury Corporate Center LLC, (iv) NNN 200
Galleria, LLC and (v) NNN Avallon, LLC.”
(d) Section 1.01 of the Credit Agreement is hereby amended by adding the following new defined
terms thereto in appropriate alphabetical order:
“XXXX Assets” means any real property owned or held by any of the XXXX Property Acquisition
Subsidiaries, which includes, (i) the property located at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx,
(ii) the property located at 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx, and (iii) the property located at
39 & 00 Xxx Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx.
“Second Amendment Effective Date” means September 30, 2008.
(e) Section 2.01(a) of the Credit Agreement is hereby amended by (i) deleting “the Termination
Date” on the fourth (4th) line thereof and substituting therefor “September 30, 2008, but expressly
subject to the last sentence of this Section 2.01(a),”, and (ii) inserting the following sentence
at the end thereof: “For the avoidance of doubt, notwithstanding anything to the contrary contained
herein, no Revolving Credit Advances shall be available after September 30, 2008 until such time as
the Revolving Credit Commitments have been reduced to less than $50,000,000, at which time
Revolving Credit Advances shall be available up to the Unused Revolving Credit Commitments of the
Revolving Credit Lenders at such time.”
(f) Section 2.01(b) of the Credit Agreement is hereby amended by (i) deleting “the Termination
Date” on the third (3rd) line thereof and substituting therefor “September 30, 2008, but expressly
subject to the last sentence of this Section 2.01(b),”, and (ii) inserting the following sentence
at the end thereof: “For the avoidance of doubt, notwithstanding anything to the contrary contained
herein, no Swing Line Advances shall be available after September 30, 2008 until such time as the
Revolving Credit Commitments have been reduced to less than $50,000,000, at which time Swing Line
Advances shall be available (i) in an aggregate amount not to exceed at any time outstanding the
Swing Line Bank’s Swing Line Commitment at such time and (ii) in an amount for each such Swing Line
Advance not to exceed the aggregate of the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time.”
(g) Section 2.01(c) of the Credit Agreement is hereby amended by (i) deleting “60 days before
the Termination Date” on the fourth (4th) line thereof and substituting therefor “September 30,
2008, but expressly subject to the last sentence of this Section 2.01(c),”, and (ii) inserting the
following sentence at the end thereof: “For the avoidance of doubt, notwithstanding anything to the
contrary contained herein, no Letters of Credit shall be available after September 30, 2008 until
such time as the Revolving Credit Commitments have been reduced to less than $50,000,000, at which
time Letters of Credit shall be available in an Aggregate Available Amount (i) for all Letters of
Credit issued by the Issuing Bank not to exceed at any time the Letter of Credit Facility at such
time, (ii) for all Letters of Credit issued by the Issuing Bank not to exceed such Issuing Bank’s
Letter of Credit Commitment at such time and (iii) for each such Letter of Credit not to exceed an
amount equal to the Unused Revolving Credit Commitments of the Revolving Credit Lenders at such
time.”
(h) The following new subsection (iii) is hereby added to the end of Section 2.05(b) of the
Credit Agreement:
(iii) Upon the receipt of any prepayment pursuant to Section 2.06(e), the Revolving Credit
Commitments shall be permanently reduced by one hundred percent (100%) of the principal amount
of such prepayment; provided, however, under no circumstances shall the Revolving Credit
Commitments be reduced to less than $50,000,000 by reason of the operation of this Section
2.05(b)(iii).
(i) Section 2.06(e)(i) is hereby amended by (i) deleting “In the event that the sale
contemplated by Section 5.02(e)(v) is not consummated on or before September 30, 2008, the” at the
beginning thereof and substituting therefor “The”, and (ii) inserting the words “of XXXX Assets”
immediately following the word “sale” in the parenthetical on the third (3rd) line thereof.
(j) Section 2.07(a)(1) of the Credit Agreement is hereby amended by inserting the following
sentence at the end of such Section immediately prior to the period: “; provided, however, such
rate shall never be less than the sum of the Eurodollar Rate plus the Applicable Margin for
Eurodollar Rate Advances (assuming a one (1) month Interest Period) plus 1.00%.”
(k) Section 5.01(s) of the Credit Agreement is hereby amended by deleting “real property held
by each Limited Purpose Subsidiary” and substituting therefor “XXXX Assets”.
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(l) Section 5.02(b) of the Credit Agreement is hereby amended by (i) inserting “and Preferred
Interests” at the end of the title of such Section immediately prior to the period, and (ii)
inserting the following immediately after the word “Debt” and prior to the word “except”: “or
create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create,
incur, assume or suffer to exist any Preferred Interests, in each case”.
(m) Section 5.02(b)(iii)(F) of the Credit Agreement is hereby amended by deleting
“$125,000,000” and substituting therefor “$50,000,000”.
(n) Section 5.02(b)(iii)(H) is hereby amended and restated in its entirety to read as follows:
“(H) other Debt subordinated to Debt incurred hereunder and/or Preferred Interests, in each
case in amounts and on terms and conditions satisfactory to the Administrative Agent and
Required Lenders;”
(o) Section 5.02(b)(iv) of the Credit Agreement is hereby amended by inserting “next to”
immediately prior to the word “last” in the last line of such Section.
(p) The proviso immediately following Section 5.02(b)(v) is hereby amended by (i) deleting the
comma immediately following the reference to “(iii)(D)(y)”, (ii) inserting the word “and”
immediately following the reference to “(iii)(D)(y)”, and (iii) deleting “and (iii)(H)” immediately
following the reference to “(iii)(E)”.
(q) Section 5.02(g) is hereby amended by deleting the colon at the end of the first paragraph
of such Section and all text following the colon in such Section and substituting therefor: “, any
Loan Party may make Restricted Payments to another Loan Party.”
(r) Section 5.03(d) of the Credit Agreement is hereby amended by (i) deleting “Upon the
request of the Administrative Agent,” at the beginning of such Section and substituting therefor
“As soon as possible and in any event within thirty (30) days after the end of each calendar
month,”, (ii) inserting the following after the word “month,” in the seventh (7th) line thereof:
“and unaudited statements of gross revenues and operating and other expenses with respect to each
parcel of real property owned or held by any Limited Purpose Subsidiary, in each case in form and
detail satisfactory to the Administrative Agent,”
(s) Section 5.04(a) of the Credit Agreement is hereby amended by deleting the table therein
and substituting the following table therefor:
| Quarter Ending | Ratio | |
December 31, 2007 |
3.75:1.00 | |
March 31, 2008 |
3.75:1.00 | |
June 30, 2008 |
3.75:1.00 | |
September 30, 2008 |
5.50:1.00 | |
December 31, 2008 |
5.50:1.00 | |
March 31, 2009 and thereafter |
3.50:1.00 |
(t) Section 5.04(b) of the Credit Agreement is hereby amended by deleting the table therein
and substituting the following table therefor:
| Quarter Ending | Ratio | |
December 31, 2007 |
3.25:1.00 | |
March 31, 2008 |
3.25:1.00 | |
June 30, 2008 |
3.25:1.00 | |
September 30, 2008 |
3.25:1.00 | |
December 31, 2008 |
3.25:1.00 | |
March 31, 2009 |
3.25:1.00 | |
June 30, 2009 |
3.50:1.00 | |
September 30, 2009 |
3.50:1.00 | |
December 31, 2009 |
4.00:1.00 | |
March 31, 2010 |
4.00:1.00 | |
June 30, 2010 |
4.00:1.00 | |
September 30, 2010 |
4.00:1.00 | |
December 31, 2010 and thereafter |
4.50:1.00 |
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(u) Section 5.04(c) of the Credit Agreement is hereby amended by deleting the table therein
and substituting the following table therefor:
| Quarter Ending | Ratio | |
December 31, 2007
|
2.25:1.00 | |
March 31, 2008
|
2.25:1.00 | |
June 30, 2008
|
2.25:1.00 | |
September 30, 2008
|
4.25:1.00 | |
December 31, 2008
|
4.25:1.00 | |
March 31, 2009 and thereafter
|
2.25:1.00 |
(v) Section 5.04(d) of the Credit Agreement is hereby amended by deleting “$60,000,000” and
substituting therefor “$30,000,000”.
(w) Section 5.04(f) of the Credit Agreement is hereby amended by deleting “$25,000,000” and
substituting therefor “$15,000,000”.
(x) Schedule I (Commitments, Pro Rata Shares and Applicable Lending Offices) to the Credit
Agreement is hereby replaced with Schedule I attached hereto.
(y) Schedule IV to the Credit Agreement is hereby replaced with Schedule IV attached hereto.
Section 2. Representations and Warranties. The Borrower hereby represents and warrants
that the representations and warranties contained in each of the Loan Documents (as amended or
supplemented to date, including pursuant to this Amendment) are true and correct on and as of the
Amendment Effective Date (defined below), before and after giving effect to this Amendment
(including, without limitation, the representation and warranty set forth in Section 4.01(o) of the
Credit Agreement, as amended by this Amendment), as though made on and as of such date.
Section 3. Effectiveness of Amendment. This Second 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 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 5 below.
Section 4. 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 5. 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 6. 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 7. 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.
[Balance of page intentionally left blank]
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| Very truly
yours, XXXXX & XXXXX COMPANY, as Borrower |
||||
| By | /s/ Xxxxxxx x. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
| Agreed as of the date first above written: | ||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent, a Lender, Issuing Bank and Swing Line Bank |
||||
By
|
/s/ Xxxxx Xxxxxxx
|
|||
| Title: Managing Director | ||||
By
|
/s/ Xxxxx Xxxx
|
|||
| Title: Director | ||||
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
| JPMORGAN CHASE BANK, N.A., as a Lender |
||||
By
|
/s/ Xxx X. Xxxxxxxxx
|
|||
| Title: Vice President | ||||
| KEYBANK NATIONAL ASSOCIATION, as a Lender |
||||
By
|
/s/ Xxxxxxxx X. Xxxxx
|
|||
| Title: Vice President | ||||
| FIFTH THIRD BANK, as a Lender |
||||
By
|
/s/ Xxxxxxx X. Xxxxxxx
|
|||
| Title:Vice President | ||||
CONSENT
Dated as of September 30, 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 (as amended by a certain
First Letter Amendment dated as of August 4, 2008), 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 Second Letter Amendment, hereby consents to such Second Letter Amendment and hereby
confirms and agrees that notwithstanding the effectiveness of such Second 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. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX AFFILIATES, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX MANAGEMENT SERVICES, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX OF ARIZONA, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX ASSET SERVICES COMPANY |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
(Signatures continued on next page)
| XXXXX & XXXXX CONSULTING SERVICES
COMPANY |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX INSTITUTIONAL PROPERTIES,
INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX OF MICHIGAN, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX MORTGAGE GROUP, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX OF NEVADA, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX NEW YORK, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
(Signatures continued on next page)
| XXXXX & XXXXX ADVISERS OF CALIFORNIA, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX SOUTHEAST PARTNERS, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| HSM INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| WM. X. XXXXX/XXXXX & XXXXX INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXXXXX HOSPITALITY INTERNATIONAL, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXXXXX SECURITIES, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
(Signatures continued on next page)
| XXXXX & XXXXX MANAGEMENT SERVICES OF MICHIGAN, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XXXXX & XXXXX EUROPE, INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| NNN REALTY ADVISORS, INC. |
||||
| By | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President | |||
| XXXXX & XXXXX REALTY INVESTORS, LLC |
||||
| By | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Executive Vice President | |||
| TRIPLE NET PROPERTIES REALTY INC. |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| XXXXX & XXXXX RESIDENTIAL MANAGEMENT INC. |
||||
| By | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
SCHEDULE I
COMMITMENTS, PRO RATA SHARES AND APPLICABLE LENDING OFFICES
COMMITMENTS, PRO RATA SHARES AND APPLICABLE LENDING OFFICES
| Revolving | Letter of | Domestic | Eurodollar | |||||||||||||||||
| Credit | Revolver Pro Rata | Credit | Swing Line | Lending | Lending | |||||||||||||||
| Name of Lender | Commitment | Share | Commitment | Commitment | Office | Office | ||||||||||||||
| Deutsche Bank Trust Company Americas |
$ | 20,186,773.50 | 30 | % | $ | 7,500,000.00 | $ | 4,000,000 | 00 Xxxx Xxxxxx Xxx Xxxx, XX 00000 |
Commercial Loan Division 00 Xxxxxx Xxxxxx Xxxxxx Xxxx, XX 00000 |
||||||||||
| Fifth Third Bank | $ | 13,457,849.00 | 20 | % | $ | 0 | $ | 0 | 000 Xxxxx Xxxxxx, | 000 Xxxxx Xxxxxx, | ||||||||||
| Xxxxx 000 | Xxxxx 000 | |||||||||||||||||||
| Xxxxxxx, XX 00000 | Xxxxxxx, XX 00000 | |||||||||||||||||||
| JPMorgan Chase, N.A. | $ | 13,457,849.00 | 20 | % | $ | 0 | $ | 0 | 000 Xxxx Xxxxxx, | 000 Xxxx Xxxxxx, | ||||||||||
| Xxxxx 00 | Xxxxx 00 | |||||||||||||||||||
| Xxx Xxxx, XX 00000 | Xxx Xxxx, XX 00000 | |||||||||||||||||||
| KeyBank National Association | $ | 20,186,773.50 | 30 | % | $ | 0 | $ | 0 | 0000 Xxxxxxxxx | 0000 Xxxxxxxxx | ||||||||||
| Xxxx, XX | Xxxx, XX | |||||||||||||||||||
| Suite 1550 | Suite 1550 | |||||||||||||||||||
| Atlanta, GA 30328 | Xxxxxxx, XX 00000 | |||||||||||||||||||
Totals |
$ | 67,289,245.00 | 100 | % | $ | 7,500,000.00 | $ | 4,000,000 | ||||||||||||
SCHEDULE IV
A.
|
0000 Xxxxxx Xxxxx | |
| Xxxxxxxx, XX | ||
B.
|
0000 XXX Xxxxxxx | |
| Xxxxxx, Xxxxx | ||
C.
|
Danbury Corporate Center | |
| Danbury, Connecticut | ||
D.
|
200 Galleria | |
| 000 Xxxxxxxx Xxxxxxx | ||
| Xxxxxxx, Xxxxxxx | ||
E.
|
The Avallon | |
| 10415 and 00000 Xxxxxx Xxxxxx and 00000 Xxxxxxxxxx Xxxx | ||
| Xxxxxx, Xxxxx |
