Exhibit 4.1
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FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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This First Amendment to Amended and Restated Credit Agreement is made as of
this 14 day of May, 2001 by and among
WICKES INC. (formerly Wickes Lumber Company), a Delaware corporation
(the "Borrower"), and
each of those financial institutions identified as Lenders on Annex I
hereto (together with each of their successors and assigns, referred
to individually as a "Lender" and collectively as the "Lenders"), and
FLEET RETAIL FINANCE INC., acting as agent for the Lenders in the
manner and to the extent described in Article 11 hereof (in such
capacity, the "Agent"), and
BANK OF AMERICA, N.A., as Documentation Agent (the "Documentation
Agent"), and
FLEET NATIONAL BANK, as issuer of letters of credit (in such capacity,
the "Issuing Bank")
in consideration of the mutual covenants herein contained and benefits to
be derived herefrom.
W I T N E S S E T H
A. Reference is made to the Amended and Restated Credit Agreement
(the "Credit Agreement") dated as of December 13, 2000 by and
among the Borrower, the Lenders, the Agent, the Documentation
Agent and the Issuing Bank.
B. The Borrower, the Lenders, and the Agent, desire to modify and
amend certain provisions of the Credit Agreement, effective as of
March 31, 2001.
Accordingly, the Agent, the Lenders, the Documentation Agent, the
Issuing Bank, and the Borrower agree as follows:
1. Definitions. (a) Capitalized terms used herein and not otherwise
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defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
2. Amendments to Article 9 of the Credit Agreement. The provisions
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of Article 9 of the Credit Agreement are hereby amended by
modifying the provisions of Section 9.2 to provide that the
required minimum Consolidated Net Worth for the fiscal quarter
ending March 31, 2001 shall be "20,600,000.00".
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3. Conditions Precedent to Effectiveness. This First Amendment shall
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not be effective until each of the following conditions precedent
have been fulfilled to the satisfaction of the Agent:
a. This First Amendment shall have been duly executed and delivered
by the respective parties hereto and, shall be in full force and
effect and shall be in form and substance satisfactory to the
Agent and the Majority Lenders.
b. All action on the part of the Borrower necessary for the valid
execution, delivery and performance by the Borrower of this First
Amendment shall have been duly and effectively taken and evidence
thereof satisfactory to the Agent shall have been provided to the
Agent.
c. The Borrower shall have provided such additional instruments and
documents to the Agent as the Agent and Agent's counsel may have
reasonably requested.
4. Miscellaneous.
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a. This First Amendment may be executed in several counterparts and
by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which
together shall constitute one instrument.
b. This First Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. No
prior negotiations or discussions shall limit, modify, or
otherwise affect the provisions hereof.
Any determination that any provision of this First Amendment or any
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application hereof is invalid, illegal or unenforceable in any respect and
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in any instance shall not effect the validity, legality, or enforceability
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of such provision in any other instance, or the validity, legality or
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enforceability of any other provisions of this First Amendment.
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The Borrower shall pay on demand all costs and expenses of the Agent,
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including, without limitation, reasonable attorneys' fees in connection
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with the preparation, negotiation, execution and delivery of this First
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Amendment.
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The Borrower warrants and represents that the Borrower has consulted with
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independent legal counsel of the Borrower's selection in connection with
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this First Amendment and is not relying on any representations or
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warranties of the Agent or its counsel in entering into this First
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Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this First
Amendment as of the day and year first above written.
WICKES INC.
by____________________________________
Name: Xxxxx X. Xxxxxxx
Title: CFO
Address: 000 X. Xxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
FLEET RETAIL FINANCE INC.,
as Agent and Lender,
by____________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
as Documentation Agent and Lender,
by____________________________________
Name:
Title:
FOOTHILL CAPITAL CORPORATION,
as Lender,
by____________________________________
Name:
Title:
LASALLE BANK, NATIONAL ASSOCIATION,
as Lender,
by____________________________________
Name:
Title:
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THE CIT GROUP/BUSINESS CREDIT INC.,
as Lender,
by____________________________________
Name:
Title:
CONGRESS FINANCIAL CORPORATION (CENTRAL),
as Lender,
by____________________________________
Name:
Title:
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
as Lender,
by____________________________________
Name:
Title:
debis FINANCIAL SERVICES, INC.,
as Lender,
by____________________________________
Name:
Title:
COMERICA BANK,
as Lender,
by____________________________________
Name:
Title:
644928.2
