Exhibit 4.3.1.11
GMAC COMMERCIAL FINANCE LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as of May 17, 2005
DELTA XXXXX, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Waiver
Gentlemen:
Reference is made to the Revolving Credit and Security Agreement dated
as of March 31, 2000 (as the same now exists or may hereafter be amended,
restated, renewed, replaced, substituted, supplemented, extended, or otherwise
modified, the "Credit Agreement"), by and between DELTA XXXXX, INC. ("Borrower")
and GMAC COMMERCIAL FINANCE LLC, as successor by merger with GMAC COMMERCIAL
CREDIT LLC, as a lender and as agent for the lenders party to the Credit
Agreement from time to time (in such capacity, "Agent").
Borrower expects that it will not be in compliance with Section 6.9 of
the Credit Agreement (Minimum EBITDA) for the four quarter period ending as of
the last day of Borrower's Fourth Quarter Fiscal Year 2005 and as a result of
such noncompliance, an Event of Default will occur under Section 10.5 of the
Credit Agreement (the "Projected Default")
Borrower has requested that Agent and Lenders agree to waive in advance
the Projected Default, and Agent and Lenders have agreed to accommodate
Borrower's request subject to the terms and conditions set forth herein, all as
more particularly set forth below.
In consideration of the foregoing, and for good and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Letter re: Waiver (this
"Agreement") and not otherwise defined shall have the meanings ascribed to such
terms in the Credit Agreement.
2. WAIVER.
A. MINIMUM EBITDA. Agent and Lenders hereby waive Borrower's
compliance with Section 6.9 of the Credit Agreement and any right to declare a
Default or an Event of Default under Section 10.5 of the Credit Agreement
arising solely from Borrower's failure to comply with the provisions of Section
6.9 of the Credit Agreement as of the last day of Borrower's Fourth Quarter
Fiscal Year 2005, subject to the terms and conditions set forth herein and
provided that, as of the last day of Borrower's Fourth Quarter Fiscal Year 2005,
(i) EBITDA is not less than <$700,000> for the four fiscal quarter period ending
on such date; (ii) Undrawn Availability for the thirty (30) consecutive days
immediately prior to and immediately subsequent to the date on which Borrower
delivers to Lender its draft financial statements for inclusion in its Form 10-K
for fiscal year 2005 is not less than $2,500,000 and (iii) no other Default or
Event of Default exists or is continuing.
B. RESERVATION OF RIGHTS. Agent and Lenders hereby reserve all
rights and remedies granted to Agent and Lenders under the Credit Agreement, the
Other Documents, applicable law or otherwise and nothing contained herein shall
be construed to limit, impair or otherwise affect the right of Agent to declare
a Default or an Event of Default with respect to any non-compliance with the
Credit Agreement or the Other Documents of which Agent does not have knowledge
as of the date hereof of and any future non-compliance (other than the Projected
Default) with any covenant, term or provision of the Credit Agreement, the Other
Documents or any other document now or hereafter executed and delivered in
connection therewith. Without limiting the foregoing, nothing herein contained
shall, or shall be deemed to waive any Default or Event of Default that Borrower
has failed to disclose to Agent as of the date hereof.
3. WAIVER FEE. In consideration of the waiver agreed to by Agent
hereunder, Borrower shall pay to Agent a waiver fee in the amount of $10,000
(the "Waiver Fee"). The Waiver Fee shall be fully earned and due on the date
hereof, and shall not be subject to refund, rebate or proration for any reason
whatsoever. Agent shall charge the Waiver Fee to Client's account as of the date
hereof.
4. NO OTHER MODIFICATIONS: Except as specifically set forth herein, no
other changes or modifications to the Credit Agreement or the Other Documents
are intended or implied, and, in all other respects, the Credit Agreement and
the Other Documents shall continue to remain in full force and effect in
accordance with their respective terms as of the date hereof. Except as
specifically set forth herein, nothing contained herein shall evidence a waiver
by Agent or Lenders of any other provision of the Credit Agreement or the Other
Documents nor shall anything contained herein be construed as a consent by Agent
or Lenders to any transaction other than that specifically consented to herein.
5. NO THIRD PARTY BENEFICIARIES. The terms and provisions of this
Agreement shall be for the benefit of the parties hereto and their respective
successors and assigns; no other person, firm, entity or corporation shall have
any right, benefit or interest under this Agreement.
6. CONDITION TO EFFECTIVENESS. The terms and provisions of this
Agreement shall not be effective until this Agreement has been duly authorized,
executed and delivered by Borrower and Agent.
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Agreement, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. This Agreement may be executed and delivered via telecopier
with the same force and effect as if it were a manually executed and delivered
counterpart.
8. GOVERNING LAW. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York, but excluding any principles of
conflicts of law or other rule of law that would result in the application of
the law of any jurisdiction other than the laws of the State of New York.
9. MERGER. This Agreement sets forth the entire agreement and
understanding of the parties with respect to the matters set forth herein. This
Agreement cannot be changed, modified, amended or terminated except in a writing
executed by the party to be charged.
Very truly yours,
GMAC COMMERCIAL FINANCE LLC, as Agent and Lender
By: /s/ Xxxx Xxxxxx
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Title: Vice President
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ACKNOWLEDGED AND AGREED:
DELTA XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Title: Chief Financial Officer
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