Exhibit 4.1(n)
FIFTH AMENDMENT TO
CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement, dated as of August 27, 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.
WITNESSETH:
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 therefore 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:
1. Amendments to the Credit Agreement. Subject to the satisfaction of the
conditions set forth in Paragraph 3 below, the Credit Agreement is hereby
amended as follows:
(a) The defined term "Availability Block" contained in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"Availability Block" means an amount equal to $15,000,000.
(b) The defined terms "Availability Block Adjustment Date" and
"Availability Block Table" contained in Section 1.1 of the Credit Agreement are
each hereby deleted.
(c) 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 each Deposit
Account maintained by Borrower."
(d) Section 12.5(v) of the Credit Agreement is hereby amended by deleting
therefrom the terms "Availability Block Adjustment Date" and "Availability Block
Table".
(e) Exhibit B to the Credit Agreement (Compliance Certificate) is amended
and restated in the form of Exhibit B attached hereto.
2. Conditions. The effectiveness of the waivers and the amendments stated
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in this Agreement are 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:
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(a) No Default. No Default or Event of Default under the Credit Agreement,
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as amended hereby, shall have occurred and be continuing.
(b) Warranties and Representations. The warranties and representations of
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Borrower 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.
3. Additional Agreements.
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(a) Borrower, Agent and Lenders hereby agree that if EBITDA for the 3
fiscal months ending September 27, 2003 is equal to or greater than the amount
set forth below for such period, effective immediately each Prime Rate Margin
and LIBOR Margin percentage contained in the Pricing Table will decrease by 25
basis points, provided that, after any such decrease the first time that EBITDA
for any subsequent period sel: forth below is less than the amount set forth
below for such period, effective immediately each Prime Rate Margin and LIBOR
Margin percentage contained in the Pricing Table will increase by 25 basis
points:
Period Amount
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3 fiscal months ending September 27, 2003 $1,500,000
4 fiscal months ending November 1, 2003 $2,200,000
5 fiscal months ending November 29, 2003 $2,200,000
6 fiscal months ending December 27, 2003 $2,000,000
4. Miscellaneous.
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(a) Captions. Section captions used in this Agreement are for convenience
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only, and shall not affect the construction of this Agreement.
(b) Governing Law. This Agreement shall be a contract made under and
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governed by the 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.
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(c) Counterparts. This Agreement may be executed in any number of
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counterparts and 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.
(d) Successors and Assigns. This Agreement shall be binding upon and shall
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inure to the sole benefit of Borrower, Agent and Lenders and their respective
successors and assigns.
(e) References. Any reference to the Credit Agreement contained in any
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notice, 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.
(f) 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.
(g) Continued Effectiveness. Notwithstanding anything contained herein, the
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terms of 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, ii: 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.
(h) Construction. Borrower acknowledges that it has been represented by its
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own 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.
WICKES INC.
By _____________________________________________
Name:___________________________________________
Title:__________________________________________
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: Xxxxxxxx Xxxxxx
Title: Vice President
