EXHIBIT 99.1
AMENDMENT No. 4, dated as of February 28, 2003 (this "Amendment"), to the
Loan and Security Agreement, dated as of October 29, 2001 (as heretofore or
hereafter amended, supplemented and otherwise modified, the "Agreement"), among
Woodworkers Warehouse, Inc. (the "Borrower"), the financial institutions listed
on the signature pages hereof (such financial institutions, together with their
respective successors and assigns, are referred to hereinafter each individually
as a "Lender" and collectively as the "Lenders") and Bank of America, N.A. as
agent for the Lenders (in its capacity as agent, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Agent and the Lenders are parties to the
Agreement;
WHEREAS, the Borrower has requested that the Lenders modify certain
provisions of the Agreement and the Lenders are willing to do so on the terms
and conditions as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein have the respective meanings ascribed thereto in the Agreement.
2. Amendments to the Agreement. The Agreement is hereby amended as follows:
(a) Section 1 of the Agreement is hereby amended by deleting the
definition of "Applicable Margin" and replacing it with the following
definition:
""Applicable Margin" means (i) with respect to Reference Rate Loans
and all other obligations (other than LIBOR Rate Loans and Additional
Availability Reference Rate Loans) one and one-quarter percent
(1.25%), (ii) with respect to Additional Availability Reference Rate
Loans, three and one-quarter percent (3.25%) and (iii) with respect to
LIBOR Rate Loans, three and one-half percent (3.50%)."
(b) Section 9.9 of the Agreement is hereby amended by deleting the
word "and" before clause (d) and inserting the following clause after
the word "hereby" at the end of such Section:
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", and (e) (i) the unsecured term note dated January 30, 2003 given by
Borrower to Xxxxxx Cable Corporation, a Delaware corporation, in the
principal amount of $2,000,000.00, (ii) the unsecured term note dated
January 14, 2003 given by Borrower to Black & Xxxxxx (U.S.) Inc., a
Maryland corporation, in the principal amount of $1,000,000.00, (iii)
the unsecured term note dated January 31, 2003 given by Borrower to
WMH Tool Group Inc., a Washington corporation, in the principal amount
of $1,000,000.00, (iv) the unsecured term note dated January 31, 2003
given by Borrower to Freud Inc., a North Carolina corporation, in the
principal amount of $250,000.00 and (v) the unsecured term note dated
January 31, 2003 given by Borrower to Xxxxxx Xxxxx Tool Corporation, a
Delaware corporation, in the principal amount of $209,985.01
(hereinafter sometimes collectively referred to as the "Unsecured
Notes")"
(c) Section 10.11 of the Agreement is hereby amended by deleting the
word "and" before clause (d) and inserting the following clause at the
end of such Section:
"; and (e) the Unsecured Notes"
(d) Section 10.12 of the Agreement is hereby amended by adding the
clause "the Unsecured Notes" after the word " Existing Debt" in the
fourth line of such section.
(e) The following new section 10.25 is hereby added:
"10.25 Seabrook Proceeds. Borrower shall be permitted to, subject to
Section 4.3, upon the date of sale of the Seabrook Premises, retain
any excess proceeds from such sale for working capital purposes only."
(f) Section 10.26 Seabrook Proceeds is hereby deleted in its entirety.
(g) Section 10.26 EBITDA of the Agreement is hereby deleted in its
entirety and replaced with the following:
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"10.26 EBITDA. On a consolidated basis, the Borrower shall have
cumulative EBITDA for the four consecutive fiscal quarters ended on
the last day of the fiscal quarter set forth below of not less than
the amount set forth below opposite such fiscal quarter:
Period Ending EBITDA
------------- ------
February, 2003 $25,000.00
May, 2003 $600,000.00
August, 2003 $1,400,000.00"
(h) Section 12.1(e) of the Agreement is hereby amended by adding the
following words before the ";" at the end of such Section:
", including, but not limited to, the payment of any principal or
interest due on the Unsecured Notes;"
4. Representations and Warranties. To induce the Lenders to enter into this
Amendment, the Borrower hereby represents and warrants as follows, with the same
effect as if such representations and warranties were set forth in the
Agreement:
(i) The Borrower has the power and authority to enter into this
Amendment and has taken all corporate action required to
authorize the Borrower's execution, delivery and performance of
this Amendment. This Amendment has been duly executed and
delivered by the Borrower, and the Agreement, as amended hereby,
constitutes the valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms.
The execution, delivery, and performance of this Amendment and
the Agreement, as amended hereby, by the Borrower will not
violate its certificate of incorporation or by-laws or any
material agreement or legal requirement binding on the Borrower.
(ii) On the date hereof and after giving effect to the terms of this
Amendment, (A) the Agreement and the other Loan Documents are in
full force and effect and constitute binding obligations,
enforceable against the Borrower in accordance with their
respective terms; (B) no Default or Event of Default has occurred
and is continuing; and (C) the Borrower has no defense to or
setoff, counterclaim or claim against payment of the
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Obligations and enforcement of the Loan Documents based upon a
fact or circumstance existing or occurring on or prior to the
date hereof.
5. Limited Effect. Except as expressly amended hereby, all of the
covenants, representations and warranties (including, without limitation, those
found in Section 9.1), and provisions of the Agreement are and shall continue to
be in full force and effect. Upon the effectiveness of this Amendment, each
reference in the Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import and each reference in the other Loan Documents to the
Agreement shall mean and be a reference to the Agreement as amended hereby.
6. Conditions of Effectiveness. This Amendment shall become effective when
and only when (a) this Amendment shall be executed and delivered by the Borrower
and the Majority Lenders, (b) Agent and each of the Lenders have received fully
executed copies of the Unsecured Notes described in this Amendment and (c) the
Agent shall have received, for the pro-rata benefit of each Lender, a fee in
connection with the execution of this Amendment of $35,000.00 to be paid in
three equal installments of $11,666.67 on March 7, 2003, April 1, 2003 and May
1, 2003, respectively; provided, that, the entire amount of such fee shall
become immediately due and payable, without notice or demand, at Agent's option,
upon the occurrence of an Event or Event of Default or upon termination of the
Agreement.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF
LAWS PROVISIONS) OF THE STATE OF NEW YORK.
8. Counterparts. This Amendment may be executed by the parties hereto in
any number of separate counterparts, each of which shall be an original, and all
of which taken together shall be deemed to constitute one and the same
instrument.
9. Amendment. No modification or waiver of any provision of this Amendment,
or any consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
"BORROWER"
Woodworkers Warehouse, Inc.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President & Chief Financial Officer
"AGENT"
Bank of America, N.A.
as the Agent
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
"LENDERS"
Bank of America, N.A.
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Foothill Capital Corporation
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Assistant Vice Principal
Transamerica Business Capital Corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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