Exhibit 6
March 26, 2003
Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Re: WAIVER
Ladies/Gentlemen:
Please refer to the Amended and Restated Credit Agreement dated as of
December 31, 2000 (as amended, 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.
WAIVER
At the request of the Borrower, the Required Lenders hereby waive through
May 1, 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 Borrower acknowledges that the foregoing waiver shall expire on May 1, 2003
and, absent a further waiver by the Required Lenders or an amendment to the
Credit Agreement, an immediate Event of Default shall exist.
AGREEMENTS OF THE BORROWER
In consideration of the foregoing waiver, the Borrower agrees with the
Administrative Agent and the Lenders as follows:
1. The Borrower confirms that its obligations under Sections 1, 3, 4 and 5 of
the letter agreement dated December 20, 2002 among the Administrative Agent, the
Borrower and the Lenders shall remain in full force and effect.
2. The Lenders shall have no obligation to make any Loan and the Issuing
Lender shall have no obligation to issue any Letter of Credit during the period
from the date hereof through May 1, 2003 (or such earlier date as the Required
Lenders may agree in writing).
EFFECTIVENESS
This letter agreement shall become effective when the Administrative Agent
shall have received (a) counterparts of this letter agreement executed by the
Borrower and the Required Lenders, (b) a Confirmation, substantially in the form
of EXHIBIT A, signed by the Borrower and each Subsidiary Guarantor, (c) a
certificate from a Responsible Officer certifying the aggregate book value of
accounts receivable of the Borrower and its Subsidiaries as of February 28,
2003, (d) a waiver fee for the account of each Lender which, prior to 5:00 p.m.,
Chicago time, on
March 26, 2003, executes and delivers to the Administrative Agent a counterpart
hereof, such fee to be in an amount equal to 0.10% of such Xxxxxx's Commitment
as of the date of this letter agreement, and (e) evidence that the Borrower has
paid all amounts payable to (i) the Administrative Agent pursuant to Section
11.5 of the Credit Agreement (including reasonable attorneys' fees) and (ii) FTI
Consulting, Inc., in each case to the extent invoices therefor have been
delivered to the Borrower.
MISCELLANEOUS
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
March 26, 2003:
XXXXX & XXXXX COMPANY
BY:
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Name:
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Title:
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Exhibit A
CONFIRMATION
Dated as of March 26, 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
CERTIFICATE
To: Bank of America, N.A., as Administrative Agent
Reference is made to the Amended and Restated Credit Agreement dated as of
December 31, 2000 (as amended, the "CREDIT AGREEMENT") among Xxxxx & Xxxxx
Company ("BORROWER"), various financial institutions who are Lenders thereunder
("LENDERS") and Bank of America, N.A., as Administrative Agent ("AGENT").
Capitalized terms used but not otherwise defined herein have the meanings
assigned thereto in the Credit Agreement.
Xxxxxxxx, Xxxxxxx and Agent have executed a waiver letter dated as of March 26,
2003 relating to the Credit Agreement. Pursuant to clause (c) of the paragraph
titled "Effectiveness" of such waiver letter, Borrower hereby certifies to you
that the aggregate book value of accounts receivable of Borrower and its
Subsidiaries as of FEBRUARY 28, 2003 WAS $11,882,000.
IN WITNESS WHEREOF, Xxxxxxxx has caused this Certificate to be executed and
delivered to you by a Responsible Officer on March 26, 2003.
XXXXX & XXXXX COMPANY
BY:
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Name: XXXXX XXXXXX
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Its: CHIEF FINANCIAL OFFICER
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