Exhibit 10.7
Xxxxx Xxxxx, Inc.
00000 XX 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Interim Chief Financial Officer
Dear Xx. Xxxxxx:
Reference is hereby made to that certain Loan and Security Agreement dated
as of June 21, 2005 among Xxxxx Xxxxx, Inc., the Guarantors party thereto, the
Lenders party thereto, Bank of America, N.A., as Agent for the Lenders, Bank of
America, N.A. and The CIT Group/Business Credit, Inc., as co-Syndication Agents,
and General Electric Capital Corporation, as Documentation Agent (as amended,
modified, supplemented or restated, the "Credit Agreement"). All capitalized
terms used herein and not otherwise defined shall have the same meaning herein
as in the Credit Agreement.
The Borrower has advised the Agent and the Lenders that certain Defaults or
Events of Default have occurred and are continuing under the Credit Agreement by
reason of the occurrence or failure to occur of certain events (the "Specified
Events") as set forth in the notice from the Borrower to the Agent attached
hereto as Schedule A. The Borrower has requested that the Agent and the Majority
Lenders waive any Defaults or Events of Default which may arise solely by virtue
of such Specified Events. The Agent and the Majority Lenders are willing to, and
do hereby, waive any such Defaults or Events of Default, subject to the
following:
1. This waiver relates only to the Specified Events. This waiver shall not be
deemed to constitute a waiver of the provisions of the Credit Agreement on
any other occasion or in any other circumstance.
2. In connection with this Waiver, the Lenders waive any rights under Section
6.8 of the Credit Agreement to have sole control and dominion of the
Payment Account as a result of the Specified Events. This waiver shall not
be deemed to constitute a waiver of such provisions of the Credit Agreement
on any other occasion or in any other circumstance.
3. This waiver shall not be effective unless and until each of the conditions
following are satisfied:
a. The First Amendment, Waiver and Agreement relating to the Term Debt, a
copy of which has been furnished to the undersigned, shall have become
effective.
b. The Agent shall have received the results of searches or other
evidence reasonably satisfactory to the Agent indicating the absence
of Liens on the assets of Xxxxx Xxxxx Fulfillment Services, Inc.
(other than in favor of the holders of the Term Debt).
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Xxxxx Xxxxx, Inc. EXECUTION COPY
as of April 14, 2006
c. The Agent shall have received evidence of the certificates of
amendment evidencing the DFS Name Change and the SGTC Name Change from
the applicable Governmental Authorities.
4. Nothing contained herein shall be deemed to constitute a waiver of any
other Defaults or Events of Default now existing or hereafter arising under
the Credit Agreement. Except for the limited waiver provided herein, all
terms and conditions of the Credit Agreement remain in full force and
effect.
Xxxxx Xxxxx, Inc. EXECUTION COPY
as of April 14, 2006
Very truly yours,
BANK OF AMERICA, N.A., as Agent
By:
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Name:
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Title:
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BANK OF AMERICA, N.A., as Lender
By:
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Name:
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Title:
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lender
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By:
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Name:
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Title:
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Xxxxx Xxxxx, Inc. EXECUTION COPY
as of April 14, 2006
Assented to and Agreed:
XXXXX XXXXX, INC.
By:
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Name:
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Title:
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Xxxxx Xxxxx, Inc. EXECUTION COPY
as of April 14, 2006
Schedule A
Notice from the Borrower
