Exhibit 99.1
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT WAIVER
WAIVER, dated as of January 7, 2003 (this "Waiver Agreement"), to the
Second Amended and Restated Loan and Security Agreement, dated as of October 29,
2001 (as heretofore or hereafter amended, supplemented and otherwise modified,
the "Agreement"), among Woodworkers Warehouse, Inc. (the "Borrower"), the
financial institutions listed on the signature pages hereof (such financial
institutions, together with their respective successors and assigns, are
referred to hereinafter each individually as a "Lender" and collectively as the
"Lenders") and Bank of America, N.A. as agent for the Lenders (in its capacity
as agent, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders are parties to the
Agreement;
WHEREAS, the Borrower has requested that the Lenders waive a certain Event
of Default under the Agreement, and the Lenders are willing to do so, on the
terms and conditions as hereinafter set forth;
WHEREAS, the Borrower acknowledges that in consideration for the waiver
granted herein by the Lenders of the Event of Default under the Agreement as
described herein, the Borrower has agreed to enter into an amendment to the
Agreement on or before February 28, 2003, which shall contain terms and
conditions reasonably satisfactory to the Lenders.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein have the respective meanings ascribed thereto in the Agreement.
2. Waiver of Certain Covenant. The Borrower has acknowledged and agreed
with the Lenders that the Borrower failed to comply with the EBITDA requirements
of Section 10.26 of the Agreement for the period ending November 23, 2002. The
Borrower's failure to comply with the foregoing covenant constitutes an Event of
Default under the Agreement and the Loan Documents. The Borrower has requested
that the Lenders waive this Event of Default. In reliance upon the Borrower's
representations and warranties and subject to the terms and conditions herein
set forth, the Lenders agree to grant a waiver of Borrower's non-compliance with
the covenant and the Event of Default that has resulted from the violation of
such covenant solely for the above-referenced period. The Borrower agrees that
it will hereafter comply fully with all other covenants and all other provisions
of the Agreement and the other Loan Documents, which remain in full force and
effect. This Waiver Agreement shall not constitute (a) a modification or an
alteration of the terms, conditions or covenants of the Agreement or the other
Loan Documents or (b) a waiver, release or
limitation upon the Lenders' exercise of any of its rights and remedies
thereunder, which are hereby expressly reserved. This Waiver Agreement shall not
relieve or release the Borrower in any way from any of its respective duties,
obligations, covenants or agreements under the Loan Documents or from the
consequences of any Event of Default thereunder, except as expressly described
above. This Waiver Agreement shall not obligate the Lenders, or be construed to
require the Lenders, to waive any other Event of Default or default, whether now
existing or which may occur after the date of this Waiver Agreement.
3. Representations and Warranties. To induce the Lenders to enter into this
Waiver Agreement, the Borrower hereby represents and warrants as follows, with
the same effect as if such representations and warranties were set forth in the
Agreement:
(1) The Borrower has the power and authority to enter into this
Waiver Agreement and has taken all corporate action required
to authorize the Borrower's execution, delivery and
performance of this Waiver Agreement. This Waiver Agreement
has been duly executed and delivered by the Borrower, and the
Agreement and the other Loan Documents constitutes the valid
and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their terms. The execution,
delivery, and performance of this Waiver Agreement, the
Agreement and the other Loan Documents, by the Borrower will
not violate its certificate of incorporation or by-laws or any
material agreement or legal requirement binding on the
Borrower.
(ii) On the date hereof and after giving effect to the terms of
this Waiver Agreement, (A) the Agreement and the other Loan
Documents are in full force and effect and constitute binding
obligations, enforceable against the Borrower in accordance
with their respective terms; (B) no Default or Event of
Default has occurred and is continuing; and (C) the Borrower
has no defense to or setoff, counterclaim or claim against
payment of the Obligations and enforcement of the Loan
Documents based upon a fact or circumstance existing or
occurring on or prior to the date hereof.
4. Limited Effect. Except as expressly waived hereby, all of the covenants,
representations and warranties (including, without limitation, those found in
Section 9.1), and provisions of the Agreement are and shall continue to be in
full force and effect. Upon the effectiveness of this Waiver Agreement, each
reference in the Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import and each reference in the other Loan Documents to the
Agreement shall mean and be a reference to the Agreement as affected by the
waiver in Section 2 hereof.
5. GOVERNING LAW. THIS WAIVER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS (AS OPPOSED TO THE
CONFLICT OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
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6. Counterparts. This Waiver Agreement may be executed by the parties
hereto in any number of separate counterparts, each of which shall be an
original, and all of which taken together shall be deemed to constitute one and
the same instrument.
7. Amendment. No modification or waiver of any provision of this Waiver
Agreement, or any consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
"BORROWER"
Woodworkers Warehouse, Inc.
By /s/ Xxxx X.Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President & Chief Financial Officer
"AGENT"
Bank of America, N.A.
as the Agent
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
"LENDERS"
Bank of America, N.A.
as a Lender
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Foothill Capital Corporation
By /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Assistant Vice President
Transamerica Business Capital Corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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