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EXHIBIT 10.16
WAIVER TO
LOAN AND SECURITY AGREEMENT
THIS WAIVER TO LOAN AND SECURITY AGREEMENT (this "Waiver") is made as
of the 28th day of February, 2001, by and between INTEGRITY INCORPORATED, a
Delaware corporation (hereinafter referred to as "Borrower"), and BANK AUSTRIA
CREDITANSTALT CORPORATE FINANCE, INC., f/k/a Creditanstalt Corporate Finance,
Inc., a Delaware corporation (hereinafter referred to as the "Lender").
WITNESSETH:
WHEREAS, Borrower and the Lender are party to that certain Loan and
Security Agreement dated as of August 2, 1996 (as amended, modified,
supplemented and restated from time to time, the "Loan Agreement") pursuant to
which the Lender made available to Borrower a revolving credit facility
permitting advances of up to Six Million Dollars ($6,000,000) at any one time
outstanding and a term loan in the principal amount of Thirteen Million Dollars
($13,000,000); and
WHEREAS, in accordance with the Borrower's contracts and a standard
industry practice, the Borrower withholds a percentage of royalties due to
artists, producers, songwriters and publishers in anticipation of product
returns but the Borrower has not been recording any liability for future royalty
payments from these reserves based on estimated historical rates of returns; and
WHEREAS, the Borrower has now concluded that a portion of such royalty
reserves should be accrued as a liability; and
WHEREAS, the Borrower has also discovered certain errors in the
accounting for inventory and cost of goods sold of Celebration Hymnal, LLC
during the years 1998 and 1999; and
WHEREAS, the Borrower is to restate its operating results for the years
1997, 1998, 1999 and the first three quarters of 2000, in order to correct
certain accounting errors related to (a) the accrual for royalty reserves
discussed above and (b) the errors regarding inventory and cost of goods
discussed above (collectively, the "Accounting Issues"); and
WHEREAS, the restatement of Borrower's operating results for such
period as a result of the Accounting Issues also results in an adjustment to the
Borrower's Cash Flow during the fiscal quarters during such period in the
respective amounts set forth on EXHIBIT A attached hereto and incorporated
herein by reference (the "Cash Flow Adjustments"); and
WHEREAS, the Borrower has notified the Lender that certain Events of
Default have occurred under the Loan Agreement, including, but not limited to,
as a result of the Accounting Issues and resulting Cash Flow Adjustments; and
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WHEREAS, the Borrower has requested that Lender waive such Events of
Default;
NOW, THEREFORE, in consideration of the foregoing premises, the terms
and conditions herein stated, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINED TERMS. Defined terms used herein, as indicated by the
initial capitalization thereof, shall have the meanings ascribed to such terms
in the Loan Agreement.
2. WAIVER OF FINANCIAL COVENANTS. The Lender hereby waives any
Default or Event of Default under Loan Agreement resulting solely from:
(a) the failure of the Borrower to maintain the minimum
Net Worth required by Section 8.1 of the Loan Agreement for the period from
January 1, 1997 through September 30, 1997 and from January 1, 1998 through
March 31, 1998;
(b) the failure of the Borrower to maintain the minimum
Cash Flow required by Section 8.2 of the Loan Agreement during the fiscal
quarters ending June 30, 1997 and September 30, 1997;
(c) the failure of the Borrower to maintain a Leverage
Ratio that is not greater than the maximum level permitted by Section 8.3 of the
Loan Agreement as of the end of the fiscal quarter ending June 30, 1997;
(d) the failure of the Borrower to maintain the minimum
Interest Coverage Ratio required by Section 8.4 of the Loan Agreement during the
fiscal quarters ending September 30, 1997, March 31, 1998, and June 30, 1998; or
(e) the failure of the Borrower to maintain the minimum
Fixed Charge Coverage Ratio required by Section 8.5 of the Loan Agreement during
the fiscal quarters ending March 31, 1997, June 30, 1998, September 30, 1998,
December 31, 1998, September 30, 1999, December 31, 1999, March 31, 2000 and
June 30, 2000.
3. OTHER WAIVERS. The Lender hereby waives any Default or Event
of Default by the Borrower under Loan Agreement resulting solely from:
(a) the failure of the financial statements of the
Borrower to be in accordance with GAAP, as required by Section 6.2(a) and (b) of
the Loan Agreement, during the period from the fiscal year ending December 31,
1997 through the fiscal quarter ending September 30, 2000, to the extent, and
only to the extent, such failure to be in accordance with GAAP was solely the
result of the Cash Flow Adjustments and/or the Accounting Issues;
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(b) the failure of the Borrower to maintain books and
records in accordance with GAAP, but only to the extent such failure was due to
the Cash Flow Adjustments and/or the Accounting Issues;
(c) any misrepresentation by or on behalf of Borrower to
Lender as to the Borrower's financial statements, financial position or results
of operations (including, but not limited to, any misrepresentation made in
connection with a representation under Section 5.28 of the Loan Agreement or any
deemed representation under Section 2.10 of the Loan Agreement), but only to the
extent such misrepresentation resulted solely from the Cash Flow Adjustments
and/or the Accounting Issues;
(d) any misrepresentation made in any compliance
certificate arising from a miscalculation of the Net Worth covenant, the Cash
Flow covenant, the Leverage Ratio covenant, the Interest Coverage Ratio covenant
or the Fixed Charge Coverage Ratio covenant on such compliance certificate, to
the extent such miscalculation occurred in respect of a period for which
compliance with such covenant is being waived pursuant to Section 2 hereof; and
(e) the failure by Borrower to notify Lender of the
Defaults or Events of Default described in Section 2 or this Section 3 of this
Waiver.
4. CONDITIONS PRECEDENT. Subject to the terms and conditions
hereof, this Waiver and the waivers set forth herein shall not become effective
unless and until this Waiver has been executed by both the Borrower and the
Lender.
5. REPRESENTATIONS AND WARRANTIES; NO DEFAULT.
(a) Borrower hereby represents and warrants to the Lender
that as of the date hereof, and after giving effect to this Waiver, (i) all of
Borrower's representations and warranties contained in the Loan Agreement, as
amended hereby, and the other Loan Documents are true and correct on and as of
the date hereof, and (ii) no Default or Event of Default has occurred and is
continuing as of such date under any Loan Document.
(b) Borrower hereby further represents and warrants to
the Lender that (i) Borrower has the power and authority to enter into this
Waiver and to perform all of its obligations hereunder; (ii) the execution and
delivery of this Waiver has been duly authorized by all necessary action
(corporate or otherwise) on the part of Borrower; and (iii) the execution and
delivery of this Waiver and performance thereof by Borrower does not and will
not violate the Certificate of Incorporation, By-laws or other organizational
documents of Borrower and does not and will not violate or conflict with any
law, order, writ, injunction, or decree of any court, administrative agency or
other governmental authority applicable to Borrower or its properties.
6. NO CLAIMS; OFFSET. Borrower hereby represents, warrants,
acknowledges and agrees to and with the Lender that (a) Borrower does not hold
or claim any right of action, claim, cause of action or damages, either at law
or in equity, against the Lender which arises from, may
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arise from, allegedly arise from, are based upon or are related in any manner
whatsoever to the Loan Agreement and the Loan Documents or which are based upon
acts or omissions of the Lender in connection therewith and (b) the Obligations
are absolutely owed to the Lender, without offset, deduction or counterclaim.
7. NO IMPLIED WAIVER; ENTIRE AGREEMENT.
(a) Except as expressly set forth herein, this Agreement
shall not be deemed to waive, amend or modify any term or condition of the Loan
Agreement or any of the other Loan Documents, each of which is hereby ratified
and reaffirmed, and which shall remain in full force and effect, nor to serve as
a consent to any matter prohibited by the terms and conditions thereof.
(b) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior negotiations, understandings and agreements between such
parties in respect of such subject matter.
8. COUNTERPARTS. This Waiver may be executed in two or more
counterparts, each of which when fully executed shall be deemed to constitute
one and the same agreement. Any signature page to this Waiver may be witnessed
by a telecopy or other facsimile of any original signature page and any
signature page of any counterpart hereof may be appended to any other
counterpart hereof to form a completely executed counterpart hereof.
9. SUCCESSORS AND ASSIGNS. This Waiver shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
10. SECTION REFERENCES. Section titles and references used in this
Waiver shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
11. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
all costs and expenses of the Lender in connection with the preparation,
execution, delivery and enforcement of this Waiver executed in connection
herewith, and any other transactions contemplated hereby, including, without
limitation, reasonable attorneys' fees.
12. GOVERNING LAW. This Waiver shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
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IN WITNESS WHEREOF, the undersigned have caused this Waiver to be
executed under seal as of the day and year first above written.
"BORROWER"
INTEGRITY INCORPORATED
By: /s/ P. Xxxxxxx Xxxxxxx
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Name: P. Xxxxxxx Xxxxxxx
Title: Chairman, President and
Chief Executive Officer
Attest: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President of
Finance and Administration
[CORPORATE SEAL]
[Signatures continued on following page]
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[Signatures continued from preceding page]
"LENDER"
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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EXHIBIT A
CASH FLOW ADJUSTMENT
Quarter Ending Reported Cash Flow Actual Cash Flow Difference
-------------- ------------------ ---------------- ----------
12/31/97 $6,992,000 $6,801,000 $ (191,000)
03/31/98 $6,978,000 $6,764,000 $ (214,000)
06/30/98 $6,794,000 $6,482,000 $ (312,000)
09/30/98 $7,096,000 $6,775,000 $ (321,000)
12/31/98 $7,846,000 $7,685,000 $ (161,000)
03/31/99 $8,072,000 $7,822,000 $ (250,000)
06/30/99 $8,078,000 $7,896,000 $ (182,000)
09/30/99 $8,302,000 $8,026,000 $ (276,000)
12/31/99 $8,085,000 $7,689,000 $ (396,000)
03/31/00 $8.779,000 $8,063,000 $ (716,000)
06/30/00 $9,764,000 $9,023,000 $ (741,000)
09/30/00 $10,033,000 $9,585,000 $ (448,000)
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