LOAN MODIFICATION AGREEMENT dated as of March 29, 2010, relating to the SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 24, 2009, among CB RICHARD ELLIS SERVICES, INC., CB RICHARD ELLIS GROUP, INC., CERTAIN SUBSIDIARIES OF CB RICHARD...
dated as
of March 29, 2010,
relating
to the
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
dated as
of March 24, 2009,
among
CB
XXXXXXX XXXXX SERVICES, INC.,
CB
XXXXXXX XXXXX GROUP, INC.,
CERTAIN
SUBSIDIARIES OF CB XXXXXXX XXXXX SERVICES, INC.,
THE
LENDERS PARTY THERETO
and
CREDIT
SUISSE AG,
as
Administrative Agent and Collateral Agent
CREDIT
SUISSE SECURITIES (USA) LLC
and
BANC OF
AMERICA SECURITIES LLC,
as Joint
Lead Arrangers
LOAN
MODIFICATION AGREEMENT dated as of March 29, 2010 (this “Agreement”),
among CB XXXXXXX XXXXX SERVICES, INC., a Delaware corporation (the “U.S.
Borrower”), CB XXXXXXX XXXXX GROUP, INC., a Delaware corporation (“Holdings”),
the Accepting Lenders (as defined below) and CREDIT SUISSE AG (“CS”), as
administrative agent (in such capacity, the “Administrative
Agent”).
A. Reference
is made to the Second Amended and Restated Credit Agreement dated as of March
24, 2009 (as amended, supplemented or otherwise modified from time to time, the
“Credit
Agreement”), among Holdings, the U.S. Borrower, the other Borrowers party
thereto, the Lenders party thereto, and CS, as Administrative Agent and as
Collateral Agent.
B. Pursuant
to Section 9.20(a) of the Credit Agreement, Holdings and the U.S. Borrower
made, by written notice to the Administrative Agent dated March 12, 2010 (such
notice, including the Summary of Principal Changed Terms attached thereto as
Exhibit A, the “Offer
Notice”), a Loan Modification Offer to the Lenders to make certain
Permitted Amendments as described therein.
C. The
Lenders party hereto (the “Accepting
Lenders”) are willing to agree to such Permitted Amendments as of the
Loan Modification Effective Date (as defined below), on the terms and subject to
the conditions set forth herein and in the Credit Agreement.
Accordingly,
in consideration of the mutual agreements herein contained and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms;
Terms Generally. Capitalized terms
used and not defined herein shall have the meanings assigned to such terms in
the Credit Agreement. The rules of construction set forth in
Section 1.02 of the Credit Agreement shall apply equally to this
Agreement. This Agreement shall be a “Loan Modification Agreement”
for all purposes of the Credit Agreement and the other Loan
Documents.
SECTION
2. Loan
Modifications. Each of the Accepting Lenders set forth on
Schedule I
hereto (the “Tranche B-1A
Lenders”) agrees that the principal amount of its Tranche A-4 Loans set
forth on Schedule I shall hereby be converted into Other Term Loans (the “Tranche B-1A
Loans”) in a like principal amount and on the terms and subject to the
conditions set forth herein:
|
Tranche B-1A Maturity
Date and Amortization:
|
As
used in the Credit Agreement, the “Other Term Loan Maturity Date” of the
Tranche B-1A Loans shall be December 20, 2015. There will be no
scheduled amortization payments prior to the Tranche B-1A Maturity
Date.
|
2
|
Applicable
Percentage:
|
As
used in the Credit Agreement, the “Applicable Percentage” with respect to
any Fixed Rate Tranche B-1A Loan and Daily Rate Tranche B-1A Loan shall be
the applicable percentage set forth below under the caption “Fixed Rate
Spread” and “Daily Rate Spread”, as the case may be, based upon the
Leverage Ratio as of the relevant date of
determination:
|
|
Leverage
Ratio
|
Fixed
Rate Spread
|
Daily
Rate Spread
|
|||
|
Category
1
Greater
than 4.00 to 1.0
|
5.50%
|
4.50%
|
|||
|
Category
2
Greater
than 3.75 to 1.0 but less than or equal to 4.00
to
1.0
|
5.50%
|
4.50%
|
|||
|
Category
3
Greater
than 3.25 to 1.0 but less than or equal to 3.75
to
1.0
|
4.50%
|
3.50%
|
|||
|
Category
4
Greater
than 2.75 to 1.0 but less than or equal to 3.25
to
1.0
|
4.50%
|
3.50%
|
|||
|
Category
5
Greater
than 2.25 to 1.0 but less than or equal to 2.75
to
1.0
|
4.50%
|
3.50%
|
|||
|
Category
6
Equal
to or less than 2.25 to 1.0
|
4.50%
|
3.50%
|
|
Notwithstanding
the foregoing, if on the last Business Day of any fiscal quarter set forth
below, the aggregate outstanding principal amount of the Tranche B-1A
Loans is greater than the “Targeted Outstanding Amount” (as set forth on
the table below) for such fiscal quarter, then from and including such
Business Day to but excluding the date on which the aggregate outstanding
principal amount of the Tranche B-1A Loans is reduced to the applicable
Targeted Outstanding Amount (or lower), the Applicable Percentage
applicable to each outstanding Tranche B-1A Loans shall be increased by
0.50%:
|
3
|
Fiscal
Quarter
Ended
|
Targeted
Outstanding Amount
|
|
|
June
2010
|
$114,755,024.43
|
|
|
September
2010
|
$114,467,417.85
|
|
|
December
2010
|
$114,179,811,28
|
|
|
March
2011
|
$113,892,204.70
|
|
|
June
2011
|
$113,604,598.12
|
|
|
September
2011
|
$113,316,991.54
|
|
|
December
2011
|
$113,029,384.97
|
|
|
March
2012
|
$112,741,778.39
|
|
|
June
2012
|
$112,454,171.81
|
|
|
September
2012
|
$112,166,565.23
|
|
|
December
2012
|
$111,878,958.66
|
|
|
March
2013
|
$111,591,352.08
|
|
|
June
2013
|
$111,303,745.50
|
|
|
September
2013
|
$111,016,138.92
|
|
|
December
2013
|
$110,728,532.35
|
|
|
March
2014
|
$110,440,925.77
|
|
|
June
2014
|
$110,153,319.19
|
|
|
September
2014
|
$109,865,712.61
|
|
|
December
2014
|
$109,578,106.04
|
|
|
March
2015
|
$109,290,499.46
|
|
|
June
2015
|
$109,002,892.88
|
|
|
September
2015
|
$108,715,286.30
|
4
|
General:
|
For
all purposes of the Credit Agreement and the other Loan Documents, the
Tranche B-1A Loans shall constitute “Other Term Loans”; Borrowings
comprised of Tranche B-1A Loans shall constitute “Tranche B-1A
Borrowings”; and the Tranche B-1A Lenders shall be “Lenders”, “Term
Lenders” and “Accepting Lenders” with respect to such Tranche B-1A
Loans. Except to the extent provided herein, the terms and
conditions of the Tranche B-1A Loans shall be identical to the
Tranche B Loans under the Credit Agreement. The Interest
Period elected by the U.S. Borrower with respect to the converted
Tranche A-4 Borrowings beginning prior to the Loan Modification
Effective Date and ending thereafter shall constitute the Interest Period
with respect to the Tranche B-1A Borrowing until the end of such
Interest Period.
For
purposes of clause (ii) in the third paragraph of the definition of
“Applicable Percentage” in the Credit Agreement, the Tranche B-1A
Loans (A) shall not constitute “Tranche B Loans” for purposes of
the phrase “upon the prepayment pursuant to Section 2.12 of at least
$150,000,000 of Tranche B Loans” of such clause, but (B) the
“Applicable Percentage” with respect to the Tranche B-1A Loans shall be
reduced by 0.50% in the event of such
prepayment.
|
SECTION
3. Representations
and Warranties. To induce the other parties hereto to enter
into this Agreement, Holdings and the U.S. Borrower represent and warrant to
each of the Accepting Lenders, the Administrative Agent, the Issuing Banks and
the Collateral Agent that, after giving effect to this Amendment, (a) the
representations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects on and as of the date
hereof, except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date; and
(b) no Default or Event of Default has occurred and is
continuing.
SECTION
4. Conditions
Precedent to Effectiveness of Modifications. The modifications
of Loans provided for in Section 2 above will become effective on a date to
be designated by the U.S. Borrower and the Administrative Agent, subject to the
satisfaction of the following conditions precedent on or prior to such date (the
date of such effectiveness being called the “Loan Modification
Effective
Date”):
5
(a) The
Administrative Agent shall have received, on behalf of itself, the Lenders and
the Issuing Bank, a favorable written opinion of (i) the General Counsel or
Assistant General Counsel of the U.S. Borrower, substantially to the effect
set forth in Exhibit A-1 to this Agreement and (ii) Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for Holdings and the U.S. Borrower,
substantially to the effect set forth in Exhibit A-2 to this Agreement, in
each case (A) dated as of the Loan Modification Effective Date,
(B) addressed to the Administrative Agent and the Accepting Lenders, and
(C) covering such other matters relating to this Agreement and the
Permitted Amendments as the Administrative Agent shall reasonably request, and
Holdings and the U.S. Borrower hereby request such counsel to deliver such
opinions.
(b) The
Administrative Agent shall have received (i) a certificate of the Secretary
or Assistant Secretary of each of Holdings, the U.S. Borrower and the Subsidiary
Guarantors that are a Domestic Subsidiaries (the “Domestic Loan
Parties”) dated as of the Loan Modification Effective Date and certifying
(A) either (x) that none of the by-laws, certificates, articles of
incorporation, partnership agreements or other comparable organizational
documents of such Domestic Loan Party (the “Organizational
Documents”) have been amended since February 5, 2010 and that the
Organizational Documents continue to be in full force and effect and/or
(y) to the extent that the Organizational Documents have been amended since
such date, that attached to such certificate are true and complete copies of
such amended Organizational Documents and that such amended Organizational
Documents are in full force and effect; and (B) that attached to such
certificate is a true and complete copy of resolutions duly adopted by the Board
of Directors or partners (or comparable governing body) of such Domestic Loan
Party authorizing the execution, delivery and performance of the Loan Documents
to which such person is a party, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect; (ii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (i) above; and (iii) such other documents as the Administrative
Agent may reasonably request.
(c) The
Administrative Agent shall have received (on behalf of itself and the Accepting
Lenders) all fees (including, for the avoidance of doubt, the Modification Fees
set forth in the Offer Notice) and other amounts due and payable on or prior to
the Loan Modification Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed
or paid by the U.S. Borrower and Holdings hereunder or under any other Loan
Document.
6
(d) The
Administrative Agent shall have received counterparts of this Agreement which,
when taken together, bear the signatures of the Domestic Loan Parties, the
Accepting Lenders and the Administrative Agent.
SECTION
5. Certain
Agreements. For the avoidance
of doubt and without limiting the application thereof, the parties hereto hereby
agree that the provisions of Section 9.05 of the Credit Agreement shall
apply to the execution and delivery of, and the performance of the parties’
respective obligations under, this Agreement.
SECTION
6. Applicable
Law. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
SECTION
7. Notices. All notices
hereunder shall be given in accordance with the provisions of Section 9.01
of the Credit Agreement.
SECTION
8. Counterparts. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 4 above. Delivery of an executed signature
page to this Agreement by facsimile or other customary means of electronic
transmission (e.g., “pdf”) shall be as effective as delivery of a manually
signed counterpart of this Agreement.
SECTION
9. Headings. The headings and
cover page of this Agreement are for convenience of reference only, are not part
of this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION
10. Amendment. This
Agreement may not be amended, supplemented or otherwise modified other than in a
writing signed by each of the parties hereto.
SECTION
11. Acknowledgement
of Guarantors. Each of the
Guarantors (other than Guarantors that are Foreign Subsidiaries) hereby
acknowledges its receipt of a copy of this Agreement and its review of the terms
and conditions hereof, and each of such Guarantors hereby consents to the terms
and conditions of this Agreement and the transactions contemplated hereby, and
hereby confirms its guarantee and, as applicable, its grant of Collateral under
the Collateral Agreement and agrees that such guarantee and any such grant of
Collateral shall continue to be in full force and effect and shall inure to the
benefit of the Secured Parties, including the Accepting Lenders as such in
respect of their Loans and/or Commitments and the other Obligations owed to them
from time to time.
7
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
CB
XXXXXXX XXXXX SERVICES, INC.,
|
|||
|
by
|
|||
|
/s/
Xxxxxx Fan
|
|||
| Name: |
Xxxxxx
Fan
|
||
| Title: |
Senior
Vice President and Treasurer
|
||
|
CB
XXXXXXX XXXXX GROUP, INC.,
|
|||
|
by
|
|||
|
/s/
Xxxxxx Fan
|
|||
| Name: |
Xxxxxx
Fan
|
||
| Title: |
Senior
Vice President and Treasurer
|
||
|
EACH
OF THE SUBSIDIARY GUARANTORS LISTED ON SCHEDULE II
HERETO,
|
|||
|
by
|
|||
|
/s/
Xxxxxx Fan
|
|||
| Name: |
Xxxxxx
Fan
|
||
| Title: |
Authorized
Signatory
|
||
|
EACH
OF THE SUBSIDIARY GUARANTORS LISTED ON SCHEDULE III
HERETO,
|
|||
|
by
|
|||
|
/s/
Xxxxxx X Xxxxxxxx
|
|||
| Name: |
Xxxxxx
X Xxxxxxxx
|
||
| Title: |
Executive
Vice President
|
||
|
XXXXXXXX
XXXX DEVELOPMENT & INVESTMENT, INC.
|
|||
|
by
|
|||
|
|
/s/
Xxxxxx X Xxxxxxxx
|
||
| Name: |
Xxxxxx
X Xxxxxxxx
|
||
| Title: |
President
and Chief Executive Officer
|
||
|
CREDIT
SUISSE AG, CAYMAN ISLANDS BRANCH, as Administrative
Agent,
|
|||
|
by
|
|||
|
/s/
Xxxxxxx X’Xxxx
|
|||
| Name: |
Xxxxxxx
X’Xxxx
|
||
| Title: |
Director
|
||
|
by
|
|||
|
/s/
Xxxx Ivashkov
|
|||
| Name: |
Xxxx
Ivashkov
|
||
| Title: |
Associate
|
||
SCHEDULE I
Tranche B-1A Lenders and
Loans
|
Tranche
B-1A Lender
|
Tranche
A-4 Loans
converted
into
Tranche
B-1A Loans
|
|
Bank
of Montreal
|
3,000,000.00
|
|
Camulos
Loan Vehicle I Ltd
|
4,000,000.00
|
|
Credit
Suisse Loan Funding LLC
|
6,201,056.69
|
|
DFR
Middle Market CLO LTD
|
2,000,000.00
|
|
Fidelity
Advisor Series I: Fidelity Advisor Floating Rate High Income
Fund
|
8,315,000.00
|
|
Fidelity
Central Investment Portfolios LLC: Fidelity Floating Rate Central
Investment Portfolio
|
5,535,000.00
|
|
Pyramis
Floating Rate High Income Commingled Pool
|
150,000.00
|
|
Fifth
Third Bank
|
10,323,895.49
|
|
Gulf
Stream Compass CLO 2005-1 Ltd
|
1,500,000.00
|
|
Gulf
Stream-Sextant CLO 2007-1, Ltd.
|
2,500,000.00
|
|
Gulfstream-Sextant
CLO 2006-1, Ltd.
|
1,500,000.00
|
|
Gulf
Stream Compass CLO 2005-2 Ltd.
|
1,500,000.00
|
|
Neptune
Finance CCS, LTD.
|
1,000,000.00
|
|
Hillmark
Funding Ltd.
|
1,000,000.00
|
|
Xxxxxx
Xxxx Funding I Ltd.
|
1,000,000.00
|
|
AIM
Floating Rate Fund
|
542,611.32
|
|
Alzette
European CLO S.A.
|
101,250.95
|
|
Avalon
Capital Ltd. 3
|
704,068.33
|
|
Belhurst
Clo Ltd.
|
587,105.44
|
|
Champlain
CLO, Ltd.
|
474,845.19
|
|
Diversified
Credit Portfolio Ltd.
|
1,012,874.45
|
|
Xxxxxx
Canyon Funding II Ltd.
|
490,761.79
|
|
Limerock
CLO I
|
589,396.47
|
|
Moselle
CLO S.A.
|
212,451.26
|
|
Nautique
Funding Ltd.
|
664,276.83
|
|
Saratoga
CLO I, Limited
|
350,285.75
|
|
Wasatch
CLO Ltd.
|
787,751.05
|
12
|
Tranche
B-1A Lender
|
Tranche
A-4 Loans
converted
into
Tranche
B-1A Loans
|
|
Silver
Crest CBNA Loan Funding LLC
|
500,000.00
|
|
Employers
Insurance Company of Wausau
|
1,600,000.00
|
|
Liberty
Mutual Insurance Company
|
6,400,000.00
|
|
Confluent
3 Limited
|
666,666.67
|
|
Qualcomm
Global Trading, Inc.
|
1,733,333.33
|
|
Xxx
Xxxxxx Senior Loan Fund
|
800,000.00
|
|
Xxx
Xxxxxx Senior Income Trust
|
800,000.00
|
|
Centaurus
Loan Trust
|
180,000.00
|
|
Clydesdale
CLO 2007 Ltd.
|
960,000.00
|
|
Clydesdale
Strategic CLO I Ltd.
|
150,000.00
|
|
NCRAM
Loan Trust
|
210,000.00
|
|
NCRAM
Senior Loan Trust 2005
|
1,350,000.00
|
|
Nomura
Bond & Loan Fund
|
150,000.00
|
|
Xxxxxxxxxxx
Master Loan Fund LLC
|
2,585,000.00
|
|
Xxxxxxxxxxx
Senior Floating Rate Fund
|
2,415,000.00
|
|
Xxxxxxx
Xxxxx Bank FSB
|
5,000,000.00
|
|
Ridgeworth
Funds Seix Floating Rate High Whitehorse II Ltd Fund
|
9,260,000.00
|
|
Rochdale
Fixed Income Opportunities Portfolio
|
740,000.00
|
|
ECP
CLO 2008-1 Ltd.
|
1,000,000.00
|
|
Loan
Funding XIII LLC
|
500,000.00
|
|
Cornerstone
CLO Ltd.
|
500,000.00
|
|
Stone
Tower CLO III Ltd.
|
500,000.00
|
|
Stone
Tower CLO IV Ltd.
|
1,500,000.00
|
|
Stone
Tower CLO V Ltd.
|
1,500,000.00
|
|
Stone
Tower CLO VII Ltd.
|
500,000.00
|
|
Stone
Tower Credit Funding I Ltd.
|
15,000,000.00
|
|
Stonetower
CLO VI Ltd.
|
500,000.00
|
|
Whitehorse
II Ltd.
|
2,000,000.00
|
|
Total:
|
$115,042,631.01
|
13
SCHEDULE II
Subsidiary
Guarantors
CB
Holdco, Inc.
CB
Xxxxxxx Xxxxx Investors, Inc.
CB
Xxxxxxx Xxxxx Investors, L.L.C.
CB
Xxxxxxx Xxxxx, Inc.
CB/TCC
Holdings LLC
CB/TCC,
LLC
CBRE
Capital Markets of Texas, LP
CBRE
Capital Markets, Inc.
CBRE Loan
Services, Inc.
CBRE
Technical Services, LLC
CBRE/LJM
Mortgage Company L.L.C.
CBRE/LJM-Nevada,
Inc.
HoldPar
A
HoldPar
B
Insignia/ESG
Capital Corporation
The
Xxxxxxxxx Company, Inc.
Xxxxxxxx
Xxxx Company
Xxxxxxxx
Xxxx Services, Inc.
Xxxxxxx
X. Xxxxxx, Xx., Inc.
Westmark
Real Estate Acquisition Partnership, L.P.
14
SCHEDULE III
Subsidiary
Guarantors
XX
Xxxxxxx, Inc.
TCCT Real
Estate, Inc.
TCDFW,
Inc.
15
