Exhibit 10.37
WAIVER AND AMENDMENT AGREEMENT dated as of December 19, 1995 to the
$12,000,000 Revolving Credit Loan and Term Loan Agreement dated November 10,
1993 (the "Loan Agreement") between Marietta Corporation, Marietta American,
Inc., Marietta Canada Inc., Marietta Realty Holdings Ltd. and Chemical Bank (the
"Bank"). Terms defined in the Loan Agreement are used herein as therein defined
and references herein to "Sections" are to Sections of the Loan Agreement.
1. The Bank hereby waives non-compliance with Section 7.15 for
the four-quarter period ending on September 30, 1995; provided that the
Borrower's Interest Coverage Ratio on a consolidated basis for such period is
not less than .75 to 1.0. The foregoing waiver does not constitute a waiver of
any other provision of the Loan Agreement or a waiver of any other right, power
or privilege of the Bank or of any other present or future default under the
Loan Agreement.
2. Section 2.06 is hereby amended to read in its entirety as
follows:
"Section 2.06 Repayment of Revolving Credit Loans.
All principal, interest and other sums due under this Loan
Agreement and the Revolving Credit Note shall be all due and payable
on the Conversion Date."
The parties hereto expressly confirm and agree that the intent and
effect of the foregoing amendment is to eliminate any Borrower right and any
Bank obligation to convert the Principal Balance outstanding on the Conversion
Date to the Term Loan and that, accordingly, such Principal Balance and all
other amounts then due under the Loan Agreement and the Revolving Credit Note
shall be due and payable on the Conversion Date.
3. Each Borrower hereby represents and warrants, as of the date
hereof, to the same effect as set forth in Sections 4.01, 4.02 and 4.03, except
that (a) the amendments set forth herein shall be assumed to be in effect and
(b) all references in such Sections to "this Agreement" or "this Loan Agreement"
shall be read, for the purposes hereof, to refer to both this Waiver and
Amendment and the Loan Agreement, as amended hereby.
4. Except for and to the extent expressly amended hereby, the
provisions of the Loan Agreement shall continue in full force and effect, and
are hereby ratified and confirmed, in all respects (and, to the extent not
already provided for therein, all references therein, in the Schedules and in
any Note to "the(is) Agreement," "the(is) Loan Agreement," "herein," "hereunder"
or similar references shall refer to the Loan Agreement as so amended).
5. This Waiver and Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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6. This Waiver shall (i) become effective when counterparts
hereof have been signed by the Borrower and the Bank and (ii) be construed in
accordance with and governed by the law of the State of New York.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this Waiver
and Amendment to be duly executed by their authorized officers.
MARIETTA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and CEO
MARIETTA AMERICAN, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and CEO
MARIETTA CANADA INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and CEO
MARIETTA REALTY HOLDINGS LTD.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
2
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CHEMICAL BANK
By: /s/ Xxxxxxx X. XxXxxxx
-------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
3
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