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
60 Wall Street
New York, New York 10005
as Administrative Agent under the
Credit Agreement referred to below
60 Wall Street
New York, New York 10005
Re: Grubb & Ellis 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 Grubb & Ellis 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 Malcolm K. Montgomery of Shearman & Sterling LLP by facsimile (646-848-7587), 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 | ||||
| GRUBB & ELLIS COMPANY | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Executive Vice President & CFO | |||
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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/ James Rolison | |||
| Title: Managing Director | ||||
| By: | /s/ George R. Reynolds | |||
| Name: George R. Reynolds | ||||
| Title: Director |
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KEYBANK, NATIONAL ASSOCIATION,
as a Lender
as a Lender
| By | /s/ James T. Freel | |||
| Title: Senior Vice President |
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| JPMORGAN CHASE BANK, N.A., as a Lender | ||||
| By | /s/ Michael J. Burke | |||
| Name: | Michael J. Burke | |||
| Title: | SVP | |||
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| FIFTH THIRD BANK, as a Lender | ||||
| By | /s/ Matthew D. Rodgers | |||
| Name: | Matthew D. Rodgers | |||
| Title: | Vice President | |||
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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: GRUBB & ELLIS AFFILIATES, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS AFFILIATES, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS MANAGEMENT SERVICES, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS OF ARIZONA, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS ASSET SERVICES COMPANY | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
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| GRUBB & ELLIS CONSULTING SERVICES COMPANY | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS INSTITUTIONAL PROPERTIES, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS OF MICHIGAN, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS MORTGAGE GROUP, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS OF NEVADA, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS NEW YORK, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
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| GRUBB & ELLIS ADVISERS OF CALIFORNIA, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS SOUTHEAST PARTNERS, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| HSM INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| WM. A. WHITE/GRUBB & ELLIS INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| LANDAUER HOSPITALITY INTERNATIONAL, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| LANDAUER SECURITIES, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
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| GRUBB & ELLIS MANAGEMENT SERVICES OF MICHIGAN, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| GRUBB & ELLIS EUROPE, INC. | ||||
| By: | /s/ Richard W. Pehlke | |||
| Name: | Richard W. Pehlke | |||
| Title: | Chief Financial Officer | |||
| NNN REALTY ADVISORS, INC. | ||||
| By: | /s/ Andrea R. Biller | |||
| Name: | Andrea R. Biller | |||
| Title: | EVP | |||
| GRUBB & ELLIS REALTY INVESTORS, LLC | ||||
| By: | /s/ Andrea R. Biller | |||
| Name: | Andrea R. Biller | |||
| Title: | EVP | |||
| TRIPLE NET PROPERTIES REALTY INC. | ||||
| By: | /s/ Michael Rispoli | |||
| Name: | Michael Rispoli | |||
| Title: | CFO | |||
| GRUBB & ELLIS RESIDENTIAL MANAGEMENT INC. | ||||
| By: | /s/ Michael Rispoli | |||
| Name: | Michael Rispoli | |||
| Title: | CFO | |||
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