Exhibit 4.1 (o)
SIXTH AMENDMENT TO
CREDIT AGREEMENT
This Sixth Amendment to Credit Agreement, dated as of September 30, 2003
(this "Agreement"), is among WICKES INC., a Delaware corporation ("Borrower"),
the persons set forth on the signature pages hereto who are designated as
"Lenders", and XXXXXXX XXXXX CAPITAL, A DIVISION OF XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES INC., for itself as Lender and as Agent for each other
Lender.
W I T N E S S E T H:
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WHEREAS, Borrower, Agent and Lenders are parties to that certain Credit
Agreement dated as of February 26, 2003 (as heretofore amended, the "Credit
Agreement"; capitalized terms not otherwise defined herein having the
definitions provided therefor in the Credit Agreement);
WHEREAS, Borrower, Agent and Lenders have agreed to amend the Credit
Agreement in certain respects; and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Agent, Lenders and Borrower hereby agree as follows:
Amendments to the Credit Agreement. Subject to the satisfaction of the
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conditions set forth in Paragraph 2 below, the Credit Agreement is hereby
amended as follows:
The second sentence of subsection 6.1(d) of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"Borrower shall deliver, or cause to be delivered, to Agent Deposit Account
Control Agreements duly authorized, executed and delivered by substantially all
(as determined by Agent in its sole discretion) of the banks where Blocked
Accounts for the benefit of Borrower or any of its Subsidiaries are maintained,
and by substantially all (as determined by Agent in its sole discretion) banks
where any other Deposit Accounts are from time to time maintained."
The final sentence of subsection 6.1(d) of the Credit Agreement is hereby
amended and restated in its entirety as follows:
"Agent and Lenders agree that notwithstanding anything contained herein to
the contrary, Borrower shall have until September 30, 2003 to deliver
appropriate Deposit Account Control Agreements with respect to substantially all
(as determined by Agent in its sole discretion) of the Deposit Accounts
maintained by Borrower."
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Conditions. The effectiveness of the amendments stated in this Agreement are
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subject to the following conditions precedent or concurrent, each of which must
be satisfied no later than the date hereof, failing which this Agreement shall
be null and void:
No Default. No Default or Event of Default under the Credit Agreement, as
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amended hereby, shall have occurred and be continuing.
Warranties and Representations. The warranties and representations of Borrower
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contained in this Agreement, the Credit Agreement, as amended hereby, and the
Financing Documents, shall be true and correct in all material respects as of
the date hereof, with the same effect as though made on such date, except to the
extent that such warranties and representations expressly relate to an earlier
date, in which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date. Borrower hereby
represents and warrants that, as of the date hereof, (i) all of the
representations and warranties referred to in the immediately preceding sentence
are true and correct in all material respects as of the date hereof, and (ii) no
Default or Event of Default has occurred and is continuing.
Additional Agreements. Reference is made to that certain Consent Under Credit
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Agreement dated as of September 23, 2003, by and among Borrower, Agent and
Lenders (the "Consent"). Notwithstanding anything to the contrary contained in
Paragraph 4(e) of the Consent, so long as (i) the Grand Rapids Sale occurs after
September 30, 2003 and (ii) the $1,500,000 Term Loan prepayment due on September
30, 2003 has been made, the Net Cash Proceeds of the Grand Rapids Sale shall be
applied as follows: (a) the Net Cash Proceeds of the Grand Rapids Sale related
to the Grand Rapids Real Property in the amount of at least $700,000.00 shall
have been delivered to Agent ($198,000.00 of which shall be applied to the
principal of the Swap Debt and the balance of which shall be applied to the
principal of the Revolving Loans); (b) the Net Cash Proceeds of the Grand Rapids
Sale related to the Grand Rapids Equipment in the amount of at least $700,000.00
shall have been delivered to Agent for application to the Revolving Loans; and
(c) the Net Cash Proceeds of the Grand Rapids Sale related to the Grand Rapids
Inventory in the amount of at least the adjusted cost of such Grand Rapids
Inventory on the Closing Date of the Grand Rapids Sale shall have been delivered
to Agent for application to the principal balance of the Revolving Loans.
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Miscellaneous.
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Captions. Section captions used in this Agreement are for convenience only, and
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shall not affect the construction of this Agreement.
Governing Law. This Agreement shall be a contract made under and governed by the
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laws of the State of Illinois, without regard to conflict of laws principles.
Whenever possible each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts and
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by the different parties on separate counterparts, and each such counterpart
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Agreement.
Successors and Assigns. This Agreement shall be binding upon and shall inure to
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the sole benefit of Borrower, Agent and Lenders and their respective successors
and assigns.
References. Any reference to the Credit Agreement contained in any notice,
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request, certificate, or other document executed concurrently with or after the
execution and delivery of this Agreement shall be deemed to include this
Agreement unless the context shall otherwise require.
Release. Without limiting the Credit Agreement and the other Financing
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Documents, Borrower hereby waives any defenses to the enforcement of the Credit
Agreement and of the other Financing Documents, and hereby releases any claims
or causes of action against Agent and each Lender which may now or hereafter be
available to Borrower arising out of: (i) the administration of the Credit
Agreement, the other Financing Documents or the Obligations prior to the date
hereof or as a result of taking actions permitted hereunder; (ii) the
negotiation and execution of this Agreement; or (iii) any other matter arising
prior to the date hereof and pertaining to the Credit Agreement, the other
Financing Documents or the Obligations.
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Continued Effectiveness. Notwithstanding anything contained herein, the terms of
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this Agreement are not intended to and do not serve to effect a novation as to
the Credit Agreement. The parties hereto expressly do not intend to extinguish
the Credit Agreement. Instead, it is the express intention of the parties hereto
to reaffirm the indebtedness created under the Credit Agreement which is
evidenced by the Notes and secured by the Collateral. The Credit Agreement as
amended hereby and each of the Financing Documents remain in full force and
effect.
Construction. Borrower acknowledges that it has been represented by its own
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legal counsel in connection with the Financing Documents and this Agreement,
that it has exercised independent judgment with respect to the Financing
Documents and this Agreement, and that it has not relied on the Agent's or on
Lenders' counsel for any advice with respect to the Financing Documents or this
Agreement.
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Delivered at Chicago, Illinois, as of the day and year first above written.
XXXXXXX XXXXX CAPITAL, a division of
Xxxxxxx Xxxxx Business Financial Services Inc.,
as Agent, Collateral Agent, Book Manager,
Lead Arranger and a Lender
By:__________________________________________
Name:________________________________________
Title:_______________________________________
CONGRESS FINANCIAL CORPORATION (CENTRAL), as a Lender
By:__________________________________________
Name:________________________________________
Title:_______________________________________
THE CIT GROUP/BUSINESS CREDIT, INC., as a Lender
By:__________________________________________
Name:________________________________________
Title:_______________________________________
COMERICA BANK, as a Lender
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LASALLE BUSINESS CREDIT LLC, as a Lender
By:__________________________________________
Name:________________________________________
Title:_______________________________________
