Exhibit 10.18
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WAIVER AND CONSENT
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This Waiver and Consent is given as of the 6th day of May, 2002, under
the Revolving Credit Agreement (as amended, modified, supplemented, renewed or
restated from time to time, the "Credit Agreement") made as of the 22nd day of
April, 1999, by and among Xxxxxxx-Xxxxx, Inc., a Delaware Corporation (the
"Borrower") and the various financial institutions as are or may become parties
thereto (collectively the "Lenders"). This Waiver and Consent is made by the
Lenders signatory hereto (being at least the "Required Lenders," as defined in
the Credit Agreement).
RECITALS
Except as defined herein, all capitalized terms used in this Waiver and
Consent shall have meaning assigned to them in the Credit Agreement.
Pursuant to Section 7.2.4.(d) of the Credit Agreement, Financial
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Covenants, Borrower is required to maintain a Minimum Net Worth of $70,000,000,
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for the period ending March 31, 2002. Pursuant to Section 7.2.4.(f) of the
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Credit Agreement, Financial Covenants, Borrower is required to maintain a
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Minimum Working Capital of $40,000,000 for the period ending March 31, 2002.
Borrower has informed the Administrative Agent that it has failed to meet the
required financial covenants for Minimum Net Worth and Minimum Working Capital
for the period ending March 31, 2002. Borrower has requested that the
Administrative Agent and the Lenders waive Borrower's compliance with such
financial covenants and requirements under the Credit Agreement and the
Administrative Agent and Lenders are willing to do so on the terms and
conditions herein contained.
NOW, THEREFORE, the Administrative Agent and the undersigned Lenders
provide this Waiver and Consent as follows:
1. Any violation of the terms of the Credit Agreement or any other
Loan Document, that would result from the failure of Borrower to comply with the
Minimum Net Worth and Minimum Working Capital financial covenants and
requirements for the period ending March 31, 2002 shall be and is hereby waived
and consent to such waiver by the Administrative Agent and undersigned Lenders
shall be and is hereby given in accordance with Section 10.1 of the Credit
Agreement.
2. Notwithstanding the foregoing Waiver and Consent, it is expressly
understood and agreed that the Lenders shall have the right at all times
hereafter to require strict performance by Borrower of all terms of the Credit
Agreement or any other Loan Document, including without limitation, the terms of
Sections 7.2.4(d) and 7.2.4(f) of the Borrower Pledge and Security Agreement and
the Subsidiary Pledge and Security Agreement, that the Lenders do not waive,
affect or diminish any right, power or remedy of the Lenders under the Credit
Agreement or any other Loan Document except as expressly set forth herein and
that except as expressly set forth herein, the Credit Agreement and each other
Loan Document shall continue in
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full force and effect in accordance with their respective terms.
3. In order to induce the Administrative Agent and the Required
Lenders to execute and deliver this Waiver and Consent, the Borrower hereby
represents and warrants, on and as of the date first above written, that, after
giving effect to the provisions of this Waiver and Consent:
(a) the representations and warranties set forth in Article VI of
the Credit Agreement and in each other Loan Document are, in each
case, true and correct in all material respects (unless stated to
relate solely to an earlier date, in which case such representations
and warranties were true and correct in all material respects as of
such earlier date); and
(b) no Default, other than as stated herein, has occurred and is
continuing.
4. This Waiver and Consent may be executed in several counterparts,
each of which shall be deemed to be an original (whether such counterpart is
originally executed or an electronic copy of an original) and all of which shall
constitute together but one and the same document.
5. This Waiver and Consent is a Loan Document executed pursuant to
the Credit Agreement and shall be construed, administered and applied in
accordance with all of the terms and provisions of the Credit Agreement.
6. This Waiver and Consent shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
7. Borrower shall pay a Waiver and Consent fee of Five Thousand
Dollars ($5,000) to each Lender that has signed this Waiver and Consent, without
changes or reservations, and delivered it to the Administrative Agent on or
before 5:00 p.m. (Denver Time) on May 6, 2002.
8. THIS WAIVER AND CONSENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, this Waiver and Consent has been duly executed as
of the day and year first above written.
XXXXXXX-XXXXX, INC., Borrower
000 0/xx/ Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
By /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X.Xxxxxxx
Its Chairman and Chief Executive Officer
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LENDERS
U.S. BANK NATIONAL ASSOCIATION, as
Agent and as a Lender
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
By /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Its Vice President
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL",
NEW YORK BRANCH
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
By
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Its
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By
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Its
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TRANSAMERICA BUSINESS CREDIT
CORPORATION
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
By /s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
Its Vice President
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XXXXX FARGO BANK
Loan Adjustment Group
00 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
By
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Its
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XXXXXX TRUST AND SAVINGS BANK
000 Xxxx Xxxxxx Xx., 00/xx/ Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
By /s/ Xxxxxxxxxxx Xxxxxx
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Xxxxxxxxxxx Xxxxxx
Its Vice President
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LaSALLE BUSINESS CREDIT, INC.
000 0xx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Its Assistant Vice President
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BANK OF AMERICA
BUSINESS CREDIT
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
By /s/ X. Xxxxxxxxx Xxxxxx III
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X. Xxxxxxxxx Xxxxxx III
Its Vice President
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FINOVA CAPITAL CORPORATION
0000 X. Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
By /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Its Vice President
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PNC BANK, NA
Two PNC Plaza-/18th/ Floor
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
By /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Its Assistant Vice President
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IBJ WHITEHALL FINANCIAL GROUP
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By /s/ Xxxx X. XxXxx
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Xxxx X. XxXxx
Its Vice President
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ORIX BUSINESS CREDIT, INC.
000 Xxxx Xxxxxxxxx Xxxx, Xxxxx X000
Xxxxxxxxxx, Xxxxxxxx 00000
By
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Its
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THE PROVIDENT BANK
Xxx Xxxx Xxxxxx Xxxxxx, 000 X
Xxxxxxxxxx, Xxxx 00000
By /s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
Its Vice President
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