EXHIBIT 4.7
WAIVER NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
This Waiver No. 1 to Amended and Restated Credit Agreement, dated as of
April 14, 2003 (this "WAIVER"), is among XXXX INDUSTRIES, INC., a Delaware
corporation (the "PARENT"), each of the Parent's domestic Subsidiaries, as
borrowers (together with the Parent, collectively the "BORROWERS"), the Parent
and each of the Parent's domestic Subsidiaries, as guarantors (the "GUARANTORS",
and together with the Borrowers, collectively the "CREDIT PARTIES" and each a
"CREDIT PARTY"), LASALLE BANK NATIONAL ASSOCIATION, as lender ("LASALLE"),
NATIONAL CITY BANK, as lender ("NCB"), U.S. Bank, as lender ("US BANK"),
Comerica Bank, as lender ("COMERICA"), Associated Bank, N.A., as lender
("ASSOCIATED BANK", and together with LaSalle, NCB, US Bank and Comerica,
collectively the "LENDERS"), LaSalle, as administrative agent for the Lenders
(in such capacity, the "ADMINISTRATIVE AGENT"), and NCB, as syndication agent
for the Lenders (in such capacity, the "SYNDICATION AGENT", and together with
the Administrative Agent, the "AGENTS"). Capitalized terms used in this Waiver
and not otherwise defined herein have the meanings assigned to such terms in the
Credit Agreement (as defined below).
PRELIMINARY STATEMENTS:
1. The Credit Parties, the Lenders and the Agents are parties to the
Amended and Restated Credit Agreement, dated as of December 31, 2002 (as such
agreement may be amended, restated, supplemented or otherwise modified from time
to time, the "CREDIT AGREEMENT"), under which the Lenders provided the Borrowers
with, among other things, a $31,750,000 credit facility.
2. The Lenders have extended credit to the Borrowers under the Credit
Agreement as evidenced by, among other things, the Notes evidencing the
Revolving Loan dated as of December 31, 2002 and made by the Borrowers in favor
of the Lenders in the aggregate principal amount of $12,750,000 (the "REVOLVING
LOAN NOTES") and the Notes evidencing the Term Loan dated as of December 31,
2002 and made by the Borrowers in favor of the Lenders in the aggregate
principal amount of $19,000,000 (the "TERM LOAN NOTES", and together with the
Revolving Loan Notes, the "NOTES").
3. Section 10.1(A)(ii) of the Credit Agreement requires that the
Credit Parties furnish the Administrative Agent within 105 days after the close
of each Fiscal Year a copy of the annual audit report of the Parent and its
Subsidiaries including certain financial statements certified without
qualification as to the scope of audit or as to the status of the Parent and its
Subsidiaries as a going concern by an independent auditor.
4. The Credit Parties have requested that the Administrative Agent
and the Lenders waive the requirement of Section 10.1(A)(ii) of the Credit
Agreement that the annual audit report for the Parent and its Subsidiaries for
the Parent's 2002 Fiscal Year be delivered without qualification as to the
status of the Parent and its Subsidiaries as a going concern.
AGREEMENT:
In consideration of the premises and the mutual agreements contained in
this Waiver, and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the Credit Parties, the Agents and
the Lenders agree as follows:
SECTION 1. WAIVER.
1.1 WAIVER. On the date this Waiver becomes effective, after
satisfaction by the Credit Parties of each of the conditions set forth in
SECTION 4 of this Waiver (the "EFFECTIVE DATE"), the Lenders waive (a) the
requirement of Section 10.1(A)(ii) of the Credit Agreement that the annual audit
report for the Parent and its Subsidiaries for the Parent's 2002 Fiscal Year be
delivered without qualification as to the status of the Parent and its
Subsidiaries as a going concern, (b) any and all breaches of the representations
and warranties contained in Sections 9.4, 9.5, 9.6, 9.9, 9.13, 9.18, 9.22 or
9.25 of the Credit Agreement arising solely from the matters set forth in
SCHEDULE 1 attached hereto, and (c) any and all breaches of the covenant
contained in Section 10.1(E) of the Credit Agreement solely with respect to any
failure of the Credit Parties to provide written notice of the occurrence of any
breach of the representations and warranties described in subsection (b) of this
Section 1.1 or any event described in SCHEDULE 1 attached hereto.
1.2 OTHER. Other than as set forth in SECTION 1.1 of this Waiver,
nothing in this Waiver should in any way be deemed (a) a waiver of any Event of
Default or (b) an agreement to forbear from exercising any remedies with respect
to any Event of Default.
SECTION 2. ACKNOWLEDGEMENTS; OUTSTANDING BALANCE.
As of the date of this Waiver, the Credit Parties acknowledge and agree
that the Borrowers owe the Lenders an aggregate principal amount of
$29,845,269.57 under the Credit Agreement and the other Loan Documents, plus
accrued and unpaid interest, fees and other expenses (if any). The Borrowers
have made all payments under the Credit Agreement and the other Loan Documents
required to be made as of the date hereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
To induce the Lenders to enter into this Waiver, the Credit Parties
represent and warrant to the Lenders that:
3.1 DUE AUTHORIZATION; NO CONFLICT; NO LIEN; ENFORCEABLE OBLIGATION.
The execution, delivery and performance by each Credit Party of this Waiver and
the other documents described in SECTION 4.2 of this Waiver that the Credit
Parties are a party to (collectively, the "WAIVER DOCUMENTS") are within its
corporate powers, have been duly authorized by all necessary corporate action,
have received all necessary governmental, regulatory or other approvals (if any
is required), do not and will not contravene or conflict with any provision of
(a) any law, (b) any judgment, decree or order or (c) its articles or
certificate of incorporation, bylaws or trust documents and do not and will not
contravene or conflict with, or cause any lien to arise under, any provision of
any agreement or instrument binding upon any Credit Party or upon any of its
property. Each of this Waiver, the Credit Agreement, as
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heretofore amended, and the Notes, is the legal, valid and binding obligation of
each Credit Party party thereto, enforceable against each such Credit Party in
accordance with its terms.
3.2 REPRESENTATIONS AND WARRANTIES. As of the Effective Date, except
as contemplated by SECTION 1.1(b) of this Waiver, the representations and
warranties of the Credit Parties contained in Section 9 of the Credit Agreement,
as heretofore amended, are true and correct, except to the extent that such
representations and warranties relate solely to an earlier date.
3.3 NO DEFAULT. No Default or Event of Default has occurred and is
continuing or would result from the execution or delivery of this Waiver or any
other Waiver Document.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
The effectiveness of the waiver contemplated by this Waiver is subject to
the following:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Credit Parties contained in this Waiver are true and correct as of the
Effective Date.
4.2 DOCUMENTS AND FEES. The Agents have received all of the following,
each duly executed and dated, or received, by such date as is satisfactory to
the Administrative Agent and in form and substance satisfactory to the Agents:
(A) WAIVER NO. 1 TO CREDIT AGREEMENT. This Waiver executed by
each Credit Party, the Agents and the Required Lenders.
(B) CONSENTS. Certified copies of all documents evidencing any
necessary corporate consents and governmental approvals, if
any, with respect to this Waiver.
(C) COSTS AND EXPENSES. All reasonable out-of-pocket costs and
expenses incurred in connection with this Waiver to the
Agents, including the reasonable fees and out-of-pocket
charges of counsel for the Agents.
(D) WAIVER FEE. (i) A fee to the Administrative Agent by the
Borrowers for the account of each Lender in the amount
equal to the product of each such Lender's Percentage TIMES
$50,000.
(ii) Additionally, the Borrowers hereby agree and
acknowledge that the Borrowers shall pay on or before
December 15, 2003 a fee to the Administrative Agent for the
account of each Lender party to this Waiver in the amount
equal to the product of each such Lender's Percentage TIMES
$200,000 if the Obligations under the Loan Documents have
not been paid in full on or before December 15, 2003.
(E) OTHER. Such other information, documents, and instruments
as the Agents may reasonably request.
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SECTION 5. MISCELLANEOUS.
5.1 CAPTIONS. The recitals to this Waiver (except for definitions) and
the section captions used in this Waiver are for convenience only and do not
affect the construction of this Waiver.
5.2 GOVERNING LAW; SEVERABILITY. THIS WAIVER IS A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS. Wherever possible,
each provision of this Waiver must be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of this Waiver is
prohibited by or invalid under such law, such provision is ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Waiver.
5.3 COUNTERPARTS. This Waiver may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart is deemed to be an original, but all such counterparts together
constitute but one and the same Waiver. The Credit Parties, the Agents and the
Lenders agree to accept facsimile counterparts.
5.4 SUCCESSORS AND ASSIGNS. This Waiver is binding upon the Credit
Parties, the Agents, the Lenders and their respective successors and assigns,
and inures to the sole benefit of the Credit Parties, the Agents, the Lenders
and their successors and assigns. A Credit Party cannot assign its rights or
delegate its duties under this Waiver.
5.5 REVIVAL OF OBLIGATIONS. If all or any part of any payment under or
on account of the Credit Agreement, the other Loan Documents, this Waiver or any
agreement, instrument or other document executed or delivered by the Credit
Parties in connection with this Waiver is invalidated, set aside, declared or
found to be void or voidable or required to be repaid to the issuer or to any
trustee, custodian, receiver, conservator, master, liquidator or any other
person pursuant to any bankruptcy law or pursuant to any common law or equitable
cause then, to the extent of such invalidation, set aside, voidness, voidability
or required repayment, such payment would be deemed to not have been paid, and
the obligations of the Credit Parties in respect thereof shall be immediately
and automatically revived without the necessity of any action by the Lenders.
5.6 REFERENCES. From and after the Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein", or
words of like import, and each reference in the Credit Agreement or any other
Loan Document to the Credit Agreement, the Notes or to any term, condition or
provision contained "thereunder", "thereof", "therein", or words of like import,
mean and are a reference to the Credit Agreement or the Notes (or such term,
condition or provision, as applicable) as amended, supplemented, restated or
otherwise modified, including by this Waiver.
5.7 CONTINUED EFFECTIVENESS. Notwithstanding anything contained in
this Waiver to the contrary, the terms of this Waiver are not intended to and do
not serve to effect a novation as to the Credit Agreement. The Credit Parties
and the Lenders expressly do not intend to extinguish the Credit Agreement.
Instead, it is the express intention of the Credit Parties and the Lenders to
reaffirm the indebtedness created under the Credit Agreement. The Credit
Agreement
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remains in full force and effect and the terms and provisions of the
Credit Agreement are ratified and confirmed.
5.8 INDEMNIFICATION. The Lenders shall indemnify upon demand the
Administrative Agent and its directors, officers, employees and agents (to the
extent not reimbursed by or on behalf of the Borrowers and without limiting the
obligation of the Borrowers to do so), pro rata, from and against any and all
actions, causes of actions, suits, losses, liabilities, damages and related
expenses, including reasonable attorneys' fees and charges and allocated costs
of staff counsel, of any liability of the Administrative Agent to any
independent auditor related to any tax-related services provided by such
independent auditor on behalf of the Administrative Agent and the Lenders;
PROVIDED that, no Lender shall be liable for any payment to the Administrative
Agent of any portion of the Indemnified Liabilities resulting solely from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse the Agents upon demand for their ratable
share of any costs or out-of-pocket expenses (including reasonable fees of
attorneys for the Administrative Agent (including the allocable costs of
internal legal services and all disbursements of internal counsel)) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, modification, amendment or enforcement (whether through negotiations,
legal proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, the Credit Agreement, any other Loan Document or any
document contemplated by or referred to therein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this SECTION 5.8 shall survive repayment of the
Loans, cancellation of the Notes, expiration or termination of the Letters of
Credit, any foreclosure under, or any modification, release or discharge of, any
or all of the Collateral Documents, any termination of the Credit Agreement and
the resignation or replacement of the Administrative Agent.
5.9 WAIVER OF JURY TRIAL. Each of the Credit Parties, the Agents and
the each Lender waives any right to a trial by jury in any action or proceeding
to enforce or defend any rights under this Waiver, and agrees that any such
action or proceeding shall be tried before a court and not before a jury.
5.10 WAIVER OF CLAIMS. THE CREDIT PARTIES, IN EVERY CAPACITY,
INCLUDING, BUT NOT LIMITED TO, AS SHAREHOLDERS, PARTNERS, OFFICERS, DIRECTORS,
INVESTORS AND/OR CREDITORS OF ANY CREDIT PARTY, OR ANY ONE OR MORE OF THEM,
HEREBY WAIVE, DISCHARGE AND FOREVER RELEASE EACH AGENT AND EACH LENDER AND THEIR
RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS, STOCKHOLDERS AND
SUCCESSORS AND ASSIGNS FROM AND OF ANY AND ALL KNOWN CLAIMS, CAUSES OF ACTION,
DEFENSES, COUNTERCLAIMS OR OFFSETS AND/OR ALLEGATIONS THE CREDIT PARTIES MAY
HAVE OR MAY HAVE MADE OR THAT ARE BASED ON FACTS OR CIRCUMSTANCES OF WHICH ANY
CREDIT PARTY HAS KNOWLEDGE ARISING AT ANY TIME UP THROUGH AND INCLUDING THE DATE
OF THIS WAIVER AGAINST ANY OR ALL OF ANY AGENT, ANY LENDER, OR ANY OF THEIR
RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS, STOCKHOLDERS AND
SUCCESSORS AND ASSIGNS.
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5.11 COSTS, EXPENSES AND TAXES. The Credit Parties, the Agents and the
Lenders affirm and acknowledge that Section 15.5 of the Credit Agreement applies
to this Waiver and the transactions and agreements and documents contemplated
under this Waiver.
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Delivered at Chicago, Illinois, as of the date and year first above
written.
CREDIT PARTIES:
XXXX INDUSTRIES, INC.
XXXX INSTALLATION SERVICES, INC.
XXXX ENCLOSURES, INC.
XXXX, INC.
XXXX PRODUCTS, INC.
XXXX CONSTRUCTION, INC.
FOLDING CARRIER CORPORATION
XXXX FOREIGN HOLDINGS, INC.
UNR REALTY, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name:
Title:
(for each of the foregoing entities)
ADMINISTRATIVE AGENT:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name:
Title:
SYNDICATION AGENT:
NATIONAL CITY BANK
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name:
Title:
LENDERS:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name:
Title:
NATIONAL CITY BANK
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name:
Title:
U.S. BANK
By: /s/ Xxx Xxxxxxx
--------------------------------------
Name:
Title:
COMERICA BANK
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name:
Title:
ASSOCIATED BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name:
Title:
