EXHIBIT 1
May 30, 2003
Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Re: WAIVER
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Ladies/Gentlemen:
Please refer to the Amended and Restated Credit Agreement dated as of
December 31, 2000 (as amended or otherwise modified, the "CREDIT AGREEMENT")
among Xxxxx & Xxxxx Company (the "BORROWER"), various financial institutions and
Bank of America, N.A., as Administrative Agent. Capitalized terms used but not
otherwise defined herein have the meanings assigned thereto in the Credit
Agreement.
Pursuant to a letter agreement dated March 26, 2003 and a letter
agreement dated May 1, 2003, the Required Lenders waived through May 30, 2003
any Default or Event of Default arising from the Borrower's non-compliance with
Section 8.1(c) (minimum Adjusted EBITDA) of the Credit Agreement for the fiscal
quarters ended December 31, 2002 and March 31, 2003 (the "Existing Defaults").
At the Borrower's request, the Required Lenders agree to extend the
waiver of the Existing Defaults through June 6, 2003. The Borrower acknowledges
that the foregoing waiver shall expire on June 6, 2003 and, absent a further
waiver by the Required Lenders or an amendment to the Credit Agreement, an
immediate Event of Default shall exist.
This letter agreement shall become effective when the Administrative
Agent shall have received counterparts of this letter agreement executed by the
Borrower and the Required Lenders.
This letter agreement is limited to the matters specifically set forth
herein and shall not be deemed to constitute a waiver, consent or amendment with
respect to any other matter whatsoever. The Administrative Agent and the Lenders
hereby reserve all of their rights, powers and remedies under the Credit
Agreement and applicable law.
This letter agreement may be executed in counterparts and by the
parties hereto on separate counterparts.
This letter agreement shall be governed by and construed in accordance
with the internal laws of the State of Illinois applicable to contracts made and
to be performed entirely within such State.
BANK OF AMERICA, N.A.
as Administrative Agent and as a Lender
BY:
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Name:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION
BY:
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Name:
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Title:
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BANK ONE, NA (as successor by merger
with American National Bank and Trust
Company of Chicago)
BY:
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Name:
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Title:
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Xxxxxx to and accepted as of
May 30, 2003:
XXXXX & XXXXX COMPANY
By:
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Name:
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Title:
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CONFIRMATION
Dated as of May 30, 2003
To: Bank of America, N.A., individually and as Administrative
Agent, and the other financial institutions party to the Credit Agreement
referred to below
Please refer to (a) the Amended and Restated Credit Agreement dated as
of December 31, 2000 (as amended, the "Credit Agreement") among Xxxxx & Xxxxx
Company, various financial institutions (the "Lenders") and Bank of America,
N.A., as administrative agent (the "Administrative Agent"); (b) the other "Loan
Documents" (as defined in the Credit Agreement), including the Guaranty and
Collateral Agreement; and (c) the letter agreement dated as of the date hereof
(the "Waiver") delivered pursuant to the Credit Agreement.
Each of the undersigned hereby confirms to the Administrative Agent and
the Lenders that, after giving effect to the Waiver and the transactions
contemplated thereby, each Loan Document to which such undersigned is a party
continues in full force and effect and is the legal, valid and binding
obligation of such undersigned, enforceable against such undersigned in
accordance with its terms.
XXXXX & XXXXX COMPANY
XXXXX & XXXXX CONSULTING SERVICES
COMPANY
XXXXX & XXXXX NEW YORK, INC.
XXXXX & XXXXX OF MICHIGAN, INC.
XXXXX & XXXXX OF NEVADA, INC.
XXXXX & XXXXX OF OREGON, INC.
XXXXX & XXXXX AFFILIATES, INC.
XXXXX & XXXXX MANAGEMENT SERVICES, INC.
XXXXX & XXXXX MANAGEMENT SERVICES OF
MICHIGAN, INC.
HSM INC.
XXXXXXXX HOSPITALITY INTERNATIONAL, INC.
By:
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Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
