Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 1 dated as of
August 6, 2009 (this “ Amendment ”),
to the Second Amended and Restated Credit Agreement dated as of
March 24, 2009 (the “ Credit Agreement
”), among CB RICHARD ELLIS SERVICES, INC., a Delaware
corporation (the “ U.S. Borrower ”), CB
RICHARD ELLIS LIMITED, a limited company organized under the laws
of England and Wales (the “ U.K. Borrower
”), CB RICHARD ELLIS LIMITED, a corporation organized under
the laws of the province of New Brunswick (the “
Canadian Borrower ”), CB RICHARD ELLIS PTY LTD,
a company organized under the laws of Australia and registered in
New South Wales (the “ Australian Borrower
”), CB RICHARD ELLIS LIMITED, a company organized under the
laws of New Zealand (the “ New Zealand Borrower
” and, together with the U.S. Borrower, the U.K. Borrower,
the Canadian Borrower and the Australian Borrower, the “
Borrowers ”), CB RICHARD ELLIS GROUP, INC., a
Delaware corporation (“ Holdings ”), the
Lenders (as defined in Article I of the Credit Agreement) and
CREDIT SUISSE, as administrative agent (in such capacity, the
“ Administrative Agent ”) and as
collateral agent (in such capacity, the “ Collateral
Agent ”) for the Lenders.
A. Pursuant to the Credit Agreement,
the Lenders and the Issuing Banks have extended, and have agreed to
extend, credit to the Borrowers.
B. The Borrowers have requested
certain amendments to the Credit Agreement as set forth
herein.
C. Capitalized terms used but not
defined herein shall have the meanings assigned to them 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 agree as follows:
SECTION 1. Amendments
. (a) Section 1.01 of the Credit Agreement is hereby amended
by adding the following terms in proper alphabetical
order:
“ Amendment
No. 1 ” shall mean Amendment No. 1 dated as
of August 6, 2009, to this Agreement.
“ Amendment No. 1
Effective Date ” shall mean the “Amendment
Effective Date” under and as defined in Amendment
No. 1.
(b) Section 2.13(e) of the
Credit Agreement is hereby amended by (i) adding
“(i)” at the beginning thereof and (ii) adding as
a new clause (ii) thereof the following:
(ii) Unless waived by a majority in
interest of the Term Lenders voting as a single class, if at the
time of any issuance of senior unsecured, unsubordinated
Indebtedness of the U.S. Borrower or any Subsidiary Guarantor
following the Amendment No. 1 Effective Date, whether pursuant
to a registered public offering, a Rule 144A offering or other
private placement in the U.S. or international capital markets, the
Leverage Ratio would be greater than 2.0 to 1.0, then the U.S.
Borrower shall, substantially simultaneously with (and in any event
not later than the fifth Business Day next following) the receipt
of the Net Cash Proceeds of such Indebtedness by the U.S. Borrower
or such Subsidiary Loan Party, apply an amount equal to 100% of
such Net Cash Proceeds (or such lesser amount as shall be necessary
to cause the Leverage Ratio to be equal to 2.0 to 1.0) to prepay
outstanding Term Loans as directed by the U.S. Borrower;
provided, however , that for purposes of determining the
Leverage Ratio solely for the purpose of this clause (ii)
(A) the time and dollar limits in clause (vi) of the
first sentence and in the second sentence of the definition of
Consolidated EBITDA shall be disregarded and (B) Consolidated
EBITDA may be increased by pro forma cost savings for each such
period of four consecutive fiscal quarters that are directly
attributable to an acquisition that shall have occurred after the
commencement of such period by the U.S. Borrower or any Subsidiary
of all or substantially all the assets of a person or line of
business of such person, or all or substantially all of the Equity
Interests of a person that as a result becomes a wholly owned
Subsidiary, and are factually supportable and certified by a
Financial Officer of the U.S. Borrower, net of actual cost savings
included in such Consolidated EBITDA.
SECTION 2. Representations and
Warranties . To induce the other parties hereto to
enter into this Amendment, Holdings and the Borrowers represent and
warrant to each of the 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 3.
Effectiveness . This Amendment shall become
effective as of the date set forth above on the date (the “
Amendment Effective Date ”) on which the
Administrative Agent shall have received counterparts of this
Amendment that, when taken together, bear the signatures of the
Borrowers, Holdings, the Subsidiary Guarantors and the Required
Lenders.
SECTION 4. Effect of
Amendment . Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies
of the Lenders, the Issuing Banks, the Collateral Agent or the
Administrative Agent under the Credit Agreement or any other Loan
Document, and shall not alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document, all
of which are ratified and affirmed in all respects and
shall
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continue in full force and effect. Nothing
herein shall be deemed to entitle any Loan Party to a consent to,
or a waiver, amendment, modification or other change of, any of the
terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Loan Document in similar or
different circumstances. This Amendment shall apply and be
effective only with respect to the provisions of the Credit
Agreement specifically referred to herein. After the date hereof,
any reference to the Credit Agreement shall mean the Credit
Agreement as modified hereby. This Amendment shall constitute a
“Loan Document” for all purposes of the Credit
Agreement and the other Loan Documents.
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 and delivered
shall be deemed an original, but all such counterparts together
shall constitute but one and the same contract. Delivery of an
executed signature page of this Amendment by facsimile or other
customary means of electronic transmission (e.g.,
“pdf”) shall be effective as delivery of a manually
executed counterpart hereof.
SECTION 6. Applicable
Law . THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 7. Headings
. The headings of this Amendment are for purposes of
reference only and shall not limit or otherwise affect the meaning
hereof.
SECTION 8. Acknowledgment of
Guarantors . Each of the Guarantors hereby
acknowledges receipt and notice of, and consents to the terms of,
this Amendment.
[Remainder of this page
intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed by their duly authorized
officers, all as of the date and year first above
written.
