EXHIBIT 10
EXECUTION COPY
AMENDMENT AND WAIVER NO. 4 TO THE LOAN DOCUMENTS
As of May 25, 1999
AMENDMENT AND WAIVER NO. 4 TO THE LOAN DOCUMENTS dated as of
May 25, 1999 to the Credit Agreement dated as of November 26, 1997 (as amended
and otherwise modified by Amendment and Waiver No. 1 dated as of January 23,
1998, Letter Waiver No. 2 dated as of April 9, 1998 and Amendment No. 3 to the
Loan Documents dated as of May 26, 1998, the "Credit Agreement") among Desa
International, Inc., a Delaware corporation (the "Borrower"), Desa Holdings
Corporation, a Delaware corporation (the "Parent Guarantor"), the Lender Parties
party thereto, UBS Securities LLC, as a Co- Arranger and Documentation Agent
thereunder, Banc of America Securities LLC (formerly NationsBanc Xxxxxxxxxx
Securities LLC), as a Co-Arranger and Syndication Agent thereunder and
NationsBank, N.A., as Administrative Agent (the "Administrative Agent") for the
Lender Parties thereunder. Capitalized terms not otherwise defined herein shall
have the same meanings as specified therefor in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lender Parties agree
(a) to amend the Credit Agreement and the other Loan Documents in order, among
other things, (i) to permit the establishment of an unsecured line of credit to
the Borrower from NationsBank, N.A. (the "Childs Guaranteed Line of Credit") in
an aggregate principal amount of up to $15,000,000, which line of credit shall
be available for two years and all amounts outstanding from time to time under
which shall be unconditionally and irrevocably guaranteed by X.X. Childs Equity
Partners, L.P., and (ii) to modify the requirements of each of the financial
covenants set forth in Section 5.04 of the Credit Agreement for each of the
remaining Measurement Periods through the Term B Termination Date and (b) to
waive any and all Defaults and Events of Default under Section 6.01(c) and
6.01(d) of the Credit Agreement that have occurred and are continuing as a
result of the failure by the Borrower or the Parent Guarantor, as the case may
be, to comply with the requirements of Section 2.01(g) of the Credit Agreement
for the Clean-Up Period occurring between January 1, 1999 and May 30, 1999 and
the requirements set forth in Section 5.04(a) of the Credit Agreement for a
maximum Total Leverage Ratio at all times during the Measurement Period ended
February 28, 1999.
(2) The Lender Parties have indicated their willingness to
agree, among other things, to the amendments and waivers of the Credit Agreement
described above in Preliminary Statement (1) on the terms and subject to the
satisfaction of the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
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SECTION 1. Amendments of Certain Provisions of the Credit
Agreement. The Credit Agreement is, upon the occurrence of the Amendment
Effective Date (as hereinafter defined), hereby amended as follows:
(a) The definition of "Adjusted Funded Debt" set forth in
Section 1.01 of the Credit Agreement is hereby amended (i) to add after
the clause reference "(a)" in the second line thereof the new subclause
reference "(i)" and (ii) to add after the language "the Parent
Guarantor Preferred Stock on such date" in the seventh line thereof the
new language "and (ii) the aggregate principal amount of all "Loans"
outstanding under the Childs Guaranteed Line of Credit on such date".
(b) The definition of "Consolidated Cash Interest Expense" set
forth in Section 1.01 of the Credit Agreement is hereby amended to add
after the language "of such Person and its Subsidiaries for such
period" in the third line thereof the new language "and, in the case of
the Borrower, all interest expense (net of interest income) paid or
payable on all "Loans" outstanding under the Childs Guaranteed Line of
Credit during such period".
(c) The definition of "Consolidated EBITDA" set forth in
Section 1.01 of the Credit Agreement is hereby amended to restate
clause (d) thereof in its entirety to read as follows:
"(d) the pro forma cost savings and operating income
annualization adjustments of $5,100,000 for the Measurement
Period ending in February 1999, $3,600,000 for the Measurement
Period ending in May 1999 and $1,700,000 for the Measurement
Period ending in August 1999".
(d) The definition of "Fixed Charge Coverage Ratio" set forth
in Section 1.01 of the Credit Agreement is hereby amended to restate
clause (a) thereof in its entirety to read as follows:
"(a) (i) Consolidated EBITDA of the Parent Guarantor and its
Subsidiaries for such period plus (ii) the aggregate principal
amount of all "Loans" made under the Childs Guaranteed Line of
Credit during such period, the proceeds of which are used to
pay or prepay outstanding Term Advances, Acquisition Advances
and/or Acquisition B Advances in accordance with the terms of
this Agreement, less (iii) the aggregate amount of all Capital
Expenditures made by the Parent Guarantor and its Subsidiaries
during such period."
(e) The definition of "Loan Value" set forth in Section 1.01
of the Credit Agreement is hereby amended to delete the figure
"$15,000,000" in clause (i) of the proviso clause thereto and to
substitute therefor the new figure "$30,000,000".
(f) The following definitions set forth in Section 1.01 of the
Credit Agreement are hereby amended and restated in their entirety to
read as follows:
""Applicable Margin" means at any time and from time
to time, a percentage per annum equal to the applicable
percentage set forth below for the Performance Level set forth
below:
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Alternate Eurodollar Alternate Eurodollar
Base Rate Rate Base Rate Rate
Advances Advances Advances Advances
Under Under Term Under Term Under Term
Term A and A and B, Acquisition B, Acquisition
Working Working and and
Performance Capital Capital Acquisition B Acquisition B
Level Facilities Facilities Facilities Facilities
I 0.500% 1.500% 1.125% 2.125%
II 0.750% 1.750% 1.125% 2.125%
III 1.000% 2.000% 1.375% 2.375%
IV 1.500% 2.500% 1.750% 2.750%
V 2.000% 3.000% 2.250% 3.250%
VI 2.250% 3.250% 2.500% 3.500%
The Applicable Margin for each Alternate Base Rate Advance
shall be determined by reference to the Performance Level in
effect from time to time and the Applicable Margin for each
Eurodollar Rate Advance shall be determined by reference to
the Performance Level in effect on the first day of each
Interest Period for such Advance.
"Applicable Percentage" means, at any time and from
time to time, a percentage per annum equal to the applicable
percentage set forth below for the Performance Level set forth
below:
Performance Level Commitment Fee
I 0.325%
II 0.375%
III 0.375%
IV 0.500%
V 0.500%
VI 0.500%
The Applicable Percentage for the Commitment Fee shall be
determined by reference to the Performance Level in effect
from time to time.
"Performance Level" means Performance Level I,
Performance Level II, Performance Level III, Performance Level
IV, Performance Level V or Performance Level VI, as the
context may require. For purposes of determining the
Performance Level at any date of
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determination, no change in the Performance Level shall be
effective until three Business Days after the date on which
the Administrative Agent receives Consolidated financial
statements of the Parent Guarantor and its Subsidiaries
pursuant to (and satisfying all of the requirements of)
Section 5.03(c) or 5.03(d) reflecting such change and the
related certificate pursuant to such Section; provided,
however, that if the Parent Guarantor has not submitted to the
Administrative Agent all of the information required under
this definition as and when required under Section 5.03(c) or
5.03(d), as the case may be, the Performance Level shall be
deemed to be at Performance Level VI for so long as such
information has not been submitted.
"Performance Level V" means, at any date of
determination, that (a) the Performance Level does not meet
the requirements of Performance Level I, Performance Level II,
Performance Level III or Performance Level IV and (b) the
Parent Guarantor and its Subsidiaries shall have maintained a
Senior Leverage Ratio of less than 4.00:1 as of the last day
of the most recently completed Measurement Period prior to
such date."
(g) Section 1.01 of the Credit Agreement is hereby further
amended to add the following new definitions:
""Amendment No. 4 Effective Date" means the first
date on which all of the conditions precedent to the
effectiveness of Amendment and Waiver No. 4 to the Loan
Documents were satisfied.
"Childs Guaranteed Line of Credit" means the
unsecured line of credit to the Borrower from NationsBank
(and/or its successors and assigns) in an aggregate principal
amount of up to $15,000,000, which line of credit has a
maturity date of May 31, 2001 and all amounts outstanding from
time to time under which are unconditionally and irrevocably
guaranteed by Childs.
"Childs Guaranteed LOC Documents" means,
collectively, (a) the credit agreement dated as of May 26,
1999 between the Borrower and NationsBank, as the initial
lender thereunder, (b) all promissory notes issued to
NationsBank (and, if applicable, its successors and assigns)
and evidencing indebtedness of the Borrower under the Childs
Guaranteed Line of Credit and (c) the guaranty dated May 26,
1999 of Childs in favor of NationsBank (and, if applicable,
its successors and assigns), in each case as such agreement,
instrument or other document may be amended, supplemented or
otherwise modified from time to time after the Amendment No. 4
Effective Date in accordance with the terms hereof and
thereof.
"Performance Level VI" means, at any date of
determination, that the Performance Level does not meet the
requirements of Performance Level I, Performance Level II,
Performance Level III, Performance Level IV or Performance
Level V."
(h) Section 2.01(g) of the Credit Agreement is hereby amended
to delete the language "$24,000,000 for the Clean-Up Period occurring
in 1998 and $15,000,000 for any Clean-Up Period thereafter" at the end
of such Section and to substitute therefor the new figure
"$30,000,000".
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(i) Section 2.06(b)(vi) of the Credit Agreement is hereby
amended to delete the figure "$15,000,000" in the fourth line thereof
and to substitute therefor the new figure "$30,000,000".
(j) Section 5.02(b) of the Credit Agreement is hereby amended
(i) to delete the word "and" at the end of subclause (iv)(I) thereof,
(ii) to delete the punctuation "." at the end of subclause (iv)(J)
thereof and to substitute therefor the new phrase ", and" and (iii) to
add the following new subclause (iv)(K) thereto:
"(K) Debt under the Childs Guaranteed LOC Documents."
(k) Section 5.02(j) of the Credit Agreement is hereby amended
(i) to delete the word "and" at the end of subclause (i)(B) thereof,
(ii) to add the word "and" at the end of subclause (i)(C) thereof after
the phrase "of Surviving Debt", (iii) to add the following new
subclause (i)(D) thereto:
"(D) the prepayment of the "Loans" outstanding under the
Childs Guaranteed Line of Credit, in whole or in part;
provided that at the time of any such prepayment, (1) no
Default shall have occurred and be continuing or shall occur
as a result thereof and (2) if the aggregate principal amount
of one or more of such "Loans" was included in the
determination of the Fixed Charge Coverage Ratio for any
Measurement Period under subclause (a)(ii) of the definition
of "Fixed Charge Coverage Ratio" set forth in Section 1.01,
then such "Loans" may not be prepaid until such time as the
Parent Guarantor or the Borrower shall deliver to the Lender
Parties Consolidated financial statements of the Parent
Guarantor and its Subsidiaries pursuant to (and satisfying all
of the requirements of) Section 5.03(c) and 5.03(d), and the
related compliance certificate pursuant to such Section, which
demonstrate that the Parent Guarantor is in compliance with
the requirements of Section 5.04(b) to maintain a minimum
Fixed Charge Coverage Ratio of 1.00:1 without including the
aggregate principal amount of any "Loans" made under the
Childs Guaranteed Line of Credit which are being prepaid in
the calculation of the numerator of the Fixed Charge Coverage
Ratio for the Measurement Period reflected in such compliance
certificate",
(iv) to add after the language "any term or condition of" in clause
(ii) thereof the new subclause reference "(A)" and (v) to add after the
phrase "any Surviving Debt" at the end of clause (ii) thereof the
following new language:
", the Subordinated Notes Documents, the Parent Guarantor
Preferred Stock or the Junior Exchange Notes or (B) the Childs
Guaranteed LOC Documents, in the case of this subclause
(ii)(B), in any manner that, either individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect or to adversely affect the rights or interests
of the Administrative Agent or any Lender Party under or in
respect of the Loan Documents".
(l) Section 5.03(e) of the Credit Agreement is hereby amended
(i) to delete the phrase "no later than 30 days" in the second line
thereof and to substitute therefor the new phrase "no later than 60
days" and (ii) to delete the phrase "on a monthly basis" in the fourth
line thereof and to substitute therefor the new phrase "on a quarterly
basis".
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(m) Section 5.04 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"SECTION 5.04. Financial Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender Party shall have any Commitment
hereunder, the Parent Guarantor will:
(a) Total Leverage Ratio. Maintain a Total
Leverage Ratio as of the last day of each Measurement
Period of not more than the amount set forth below
for each Measurement Period set forth below:
Measurement Period
Ending In Ratio
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May 1999 7.25:1
August 1999 7.50:1
November 1999 7.90:1
February 2000 7.20:1
May 2000 6.90:1
August 2000 6.75:1
November 2000 6.75:1
February 2001 6.40:1
May 2001 6.25:1
August 2001 6.10:1
November 2001 5.75:1
February 2002 5.50:1
May 2002 5.50:1
August 2002 5.25:1
November 2002 5.00:1
February 2003 4.75:1
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Measurement Period
Ending In Ratio
------------------ --------
May 2003 4.50:1
August 2003 4.50:1
November 2003 and
thereafter 4.25:1
(b) Fixed Charge Coverage Ratio. Maintain a
Fixed Charge Coverage Ratio as of the last day of
each Measurement Period of not less 1.00:1.
(c) Interest Coverage Ratio. Maintain an
Interest Coverage Ratio as of the last day of each
Measurement Period of not less than the amount set
forth below for each Measurement Period set forth
below:
Measurement Period
Ending In Ratio
------------------ --------
May 1999 1.40:1
August 1999 1.35:1
November 1999 1.35:1
February 2000 1.45:1
May 2000 1.50:1
August 2000 1.55:1
November 2000 1.55:1
February 2001 1.65:1
May 2001 1.70:1
August 2001 1.75:1
November 2001 1.75:1
February 2002 1.90:1
May 2002 2.00:1
August 2002 2.00:1
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Measurement Period
Ending In Ratio
------------------ --------
February 2003 2.00:1
May 2003 2.25:1
August 2003 2.25:1
November 2003 2.25:1
February 2004 2.25:1
May 2004 2.25:1
August 2004 2.25:1
November 2004 and
thereafter 2.50:1"
(n) Section 6.01 of the Credit Agreement is hereby amended (i)
to add after the punctuation ";" at the end of subsection (o) thereof
the word "or" and (ii) to add the following new Section 6.01(p):
"(p) any "Event of Default" (as defined in the Childs
Guaranteed LOC Documents) shall have occurred and be
continuing under the Childs Guaranteed LOC Documents;".
(o) Schedule III to the Credit Agreement is hereby deleted in
its entirety.
SECTION 2. Waiver of Certain Provisions of the Credit
Agreement. Any and all Defaults and Events of Default under Sections 6.01(c) and
6.01(d) of the Credit Agreement that have occurred and are continuing as a
result of (a) the failure of the Parent Guarantor and the Borrower to deliver
projected Consolidated financial statements of the Parent Guarantor and its
Subsidiaries on a monthly basis for the Fiscal Year ending February 26, 2000,
(b) the failure of the Parent Guarantor to maintain a Total Leverage Ratio for
the Measurement Period ended February 28, 1999 of 6.75:1 in accordance with
Section 5.04(a) of the Credit Agreement and (c) the failure of the Borrower to
reduce the sum of the aggregate principal amount of all Working Capital
Advances, Letter of Credit Advances and Swing Line Advances outstanding during
the Clean-Up Period occurring between January 1, 1999 and May 30, 1999 to not
more than $15,000,000 in accordance with Section 2.01(g) of the Credit Agreement
are, on and as of the Amendment Effective Date, hereby waived by the Lender
Parties.
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SECTION 3. Conditions Precedent to the Effectiveness of this
Amendment and Waiver. This Amendment and Waiver shall become effective as of the
first date (the "Amendment Effective Date") on which each of the following
conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received counterparts
of this Amendment and Waiver executed by the Borrower, the Parent
Guarantor and the Required Lenders or, as to any of the Lender Parties,
advice satisfactory to the Administrative Agent that such Lender Party
has executed this Amendment and Waiver.
(b) The Administrative Agent and each of the Lender Parties
shall have received true and complete copies, certified by the
Borrower, of all of the Childs Guaranteed LOC Documents, which in each
case shall be in form and substance reasonably satisfactory to the
Lender Parties. All of the conditions precedent to the effectiveness of
the Childs Guaranteed LOC Documents shall have been satisfied or shall
be satisfied concurrently with the effectiveness of this Amendment and
Waiver.
(c) The Administrative Agent and each of the Lender Parties
shall have received true and complete copies, certified by the
Borrower, of agreements, in form and substance reasonably satisfactory
to the Lender Parties, duly executed by each of X.X. Childs Associates
L.P. and UBS Management, Inc., in which X.X. Childs Associates L.P. and
UBS Management, Inc., respectively, have agreed to defer payment of any
and all management fees owing to them under its Management Agreement
until such time as the Administrative Agent and the Lender Parties
shall have received the Consolidated financial statements of the Parent
Guarantor and its Subsidiaries for the Fiscal Year ending February 26,
2000 and the certificates and other documents required to be delivered
together with such Consolidated financial statements pursuant to
Section 5.03(d) of the Credit Agreement and then only if (i) such
Consolidated financial statements (and the related compliance
certificate) reflect that the Consolidated EBITDA of the Parent
Guarantor and its Subsidiaries for such Fiscal Year is not less than
$51,600,000 and (ii) at such time no Default has occurred and is
continuing or would result from the payment of such deferred management
fees to X.X. Childs Associates L.P. or UBS Management, Inc.
(d) All of the consents, approvals and authorizations of, and
notices and filings to or with, and other actions by, any governmental
or regulatory authority or any other Person necessary in connection
with any aspect of any of the Loan Documents (as amended and otherwise
modified hereby), the Childs Guaranteed LOC Documents or any of the
other transactions contemplated thereby or hereby to occur on or prior
to the Amendment Effective Date shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the
Lender Parties) and shall remain in full force and effect; all
applicable waiting periods shall have expired without any action being
taken by any competent authority; and no law, rule or regulation shall
be applicable in the reasonable judgment of the Lender Parties that
restrains, prevents or imposes materially adverse conditions upon any
aspect of any of the Loan Documents (as amended and otherwise modified
hereby), the Childs Guaranteed LOC Documents or any of the other
transactions contemplated thereby or hereby to occur on or prior to the
Amendment Effective Date.
(e) The representations and warranties contained in each of
the Loan Documents shall be correct in all material respects on and as
of the Amendment Effective Date, before and after giving effect to this
Amendment and Waiver, as though made on and as of such date (except (i)
for any such
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representation and warranty that, by its terms, refers to a specific
date other than the Amendment Effective Date, in which case as of such
specific date, (ii) that the Consolidated financial statements of the
Parent Guarantor and its Subsidiaries referred to in Section 4.01(f) of
the Credit Agreement shall be deemed to refer to the Consolidated
financial statements of the Parent Guarantor and its Subsidiaries most
recently delivered to the Administrative Agent and the Lender Parties
pursuant to Sections 5.03(c) and 5.03(d) on or prior to the Amendment
Effective Date and (iii) that the projected Consolidated financial
statements of the Parent Guarantor and its Subsidiaries referred to in
Section 4.01(h) of the Credit Agreement shall be deemed to refer to the
projected Consolidated financial statements of the Parent Guarantor and
its Subsidiaries most recently delivered to the Administrative Agent
and the Lender Parties pursuant to Section 5.03(e) on or prior to the
Amendment Effective Date).
(f) No event shall have occurred and be continuing, or shall
result from the effectiveness of this Amendment and Waiver, that
constitutes a Default, other than the Defaults and Events of Default
that are or are to be expressly waived pursuant to Section 2.
(g) No change, development, event or circumstance relating to
or affecting the Parent Guarantor or any of its Subsidiaries or any of
their respective property, assets or businesses shall have occurred,
and no additional information shall have come to the attention of the
Administrative Agent or the Lender Parties, since May 6, 1999 that,
either individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
(h) The Borrower shall have paid to the Administrative Agent,
for the ratable account of each of the Lenders that has executed and
delivered a counterpart of this Amendment and Waiver to the
Administrative Agent on or prior to the Amendment Effective Date (or
advised the Administrative Agent in a manner satisfactory to it that
such Lender has executed this Amendment and Waiver on or prior to the
Amendment Effective Date), an amendment fee of 0.25% on the aggregate
Commitments of such Lender.
(i) All of the accrued fees and expenses of the Administrative
Agent and the Lender Parties (including the accrued fees and expenses
of counsel for the Administrative Agent) shall have been paid in full.
(j) The Administrative Agent shall have received on or before
the Amendment Effective Date the following, each dated such date
(unless otherwise specified), in form and substance reasonably
satisfactory to the Required Lenders (unless otherwise specified) and
in sufficient copies for each Lender Party:
(i) Certified copies of the resolutions of the Board
of Directors of the Borrower and the Parent Guarantor
approving this Amendment and Waiver, the Childs Guaranteed
Line of Credit and the Childs Guaranteed LOC Documents and the
transactions contemplated hereby and thereby (and which have
not been delivered to the Lender Parties prior to the
Amendment Effective Date), and of all documents evidencing
other necessary corporate action and governmental and other
third party approvals and consents, if any, with respect to
this Amendment and Waiver, the Childs Guaranteed Line of
Credit and the Childs Guaranteed LOC Documents and the
transactions contemplated hereby and thereby (and which have
not been delivered to the Lender Parties prior to the
Amendment Effective Date).
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(ii) A certificate of the Borrower and the Parent
Guarantor, signed on behalf of the Borrower and the Parent
Guarantor, respectively, by its President or a Vice President
and its Secretary or any Assistant Secretary, dated the
Amendment Effective Date (the statements made in which
certificate shall be true on and as of the Amendment Effective
Date), certifying as to:
(A) the absence of any amendments to the
charter of such Person since the date of the
Secretary of State's certificate referred to in
Section 3.01(j)(iv) of the Credit Agreement, or any
steps taken by the board of directors (or persons
performing similar functions) or the shareholders of
such Person to effect or authorize any further
amendment, supplement or other modification thereto;
(B) the accuracy and completeness of the
bylaws of such Person as in effect on the date on
which the resolutions of the board of directors (or
persons performing similar functions) of such Person
referred to in clause (i) of this Section 3(j) were
adopted and on the Amendment Effective Date (a copy
of which, if different from the bylaws of such Person
most recently delivered to the Lender Parties prior
to the Amendment Effective Date, shall be attached to
such certificate);
(C) the due incorporation and good standing
of such Person as a corporation organized under the
laws of the jurisdiction of its incorporation, and
the absence of any proceeding (either pending or
contemplated) for the dissolution, liquidation or
other termination of the existence of such Person or
any of its Subsidiaries;
(D) the accuracy in all material respects of
the representations and warranties made by such
Person in the Loan Documents to which it is or is to
be a party as though made on and as of the Amendment
Effective Date, before and after giving effect to
this Amendment and Waiver, as though made on and as
of such date (except (i) for any such representation
and warranty that, by its terms, refers to a specific
date other than the Amendment Effective Date, in
which case as of such specific date, (ii) that the
Consolidated financial statements of the Parent
Guarantor and its Subsidiaries referred to in Section
4.01(f) of the Credit Agreement shall be deemed to
refer to the Consolidated financial statements of the
Parent Guarantor and its Subsidiaries most recently
delivered to the Administrative Agent and the Lender
Parties pursuant to Sections 5.03(c) and 5.03(d) on
or prior to the Amendment Effective Date and (iii)
that the projected Consolidated financial statements
of the Parent Guarantor and its Subsidiaries referred
to in Section 4.01(h) of the Credit Agreement shall
be deemed to refer to the projected Consolidated
financial statements of the Parent Guarantor and its
Subsidiaries most recently delivered to the
Administrative Agent and the Lender Parties pursuant
to Section 5.03(e) on or prior to the Amendment
Effective Date); and
(E) the absence of any event occurring and
continuing, or resulting from the effectiveness of
this Amendment and Waiver, that would constitute a
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Default, other than the Defaults and Events of
Default that are or are to be expressly waived
pursuant to Section 2.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower and the Parent Guarantor certifying
the names and true signatures of the officers of the Borrower
or the Parent Guarantor authorized to sign this Amendment and
Waiver and the other documents to be delivered hereunder.
(iv) Projections, prepared by management of the
Parent Guarantor and the Borrower, of Consolidated balance
sheets, income statements and cash flows statements of the
Parent Guarantor and its Subsidiaries on a quarterly basis for
the period between March 1, 1999 and February 26, 2000 and on
an annual basis for each Fiscal Year thereafter through the
Term B Termination Date.
(v) A favorable opinion of Xxxxxxxx & Worcester,
counsel for Childs and the Parent Guarantor and its
Subsidiaries, in form and substance reasonably satisfactory to
the Lender Parties.
(vi) Such other opinions, certificates, documents and
information as the Administrative Agent or any of the Lender
Parties through the Administrative Agent may reasonably
request.
The effectiveness of this Amendment and Waiver is further conditioned upon the
accuracy of all of the factual matters described herein. This Amendment and
Waiver is subject to the provisions of Section 9.01 of the Credit Agreement.
SECTION 4. Reference to and Effect on the Loan Documents. (a)
On and after the Amendment Effective Date, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and the other
Loan Documents to "the Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement, as amended and otherwise modified hereby.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as amended and otherwise modified by the amendments and waivers
specifically provided above in Sections 1 and 2, are and shall continue to be in
full force and effect and are hereby in all respects ratified and confirmed.
Without limiting the generality of the foregoing, the Collateral Documents and
all of the Collateral described therein do and shall continue to secure the
payment of all Obligations of the Loan Parties under and in respect of the Loan
Documents, as amended and otherwise modified by this Amendment and Waiver.
(c) The execution, delivery and effectiveness of this
Amendment and Waiver shall not, except as expressly provided herein, operate as
a waiver of any right, power or remedy of any Secured Party or any Agent under
any of the Loan Documents, nor constitute a waiver of any provision of any of
the Loan Documents.
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SECTION 5. Costs and Expenses. The Borrower hereby agrees to
pay, upon demand, all costs and expenses of the Administrative Agent (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent) in connection with the preparation, execution, delivery,
administration, modification and amendment of this Amendment and Waiver and the
other documents, instruments and agreements to be delivered hereunder or in
connection herewith, all in accordance with the terms of Section 9.04 of the
Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment and
Waiver may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment and Waiver by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment and Waiver.
SECTION 7. Governing Law. This Amendment and Waiver shall be
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
The Borrower
DESA INTERNATIONAL, INC.
By
Name:
Title:
The Parent Guarantor
DESA HOLDINGS CORPORATION
By
Name:
Title:
-14-
The Administrative Agent
NATIONSBANK, N.A., as Administrative Agent
By
Name:
Title:
The Lender Parties
NATIONSBANK, N.A., as a Lender,
the Swing Line Bank and the Issuing Bank
By
Name:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
XXXXXX FINANCIAL, INC.
By
Name:
Title:
-00-
XXXXXXXX XXXX, XXXXXXXXXX
BANKING CORPORATION
By
Name:
Title:
BANKBOSTON, N.A.
By
Name:
Title:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By
Name:
Title:
By
Name:
Title:
FIRST SOURCE FINANCIAL LLP
BY FIRST SOURCE FINANCIAL, INC.,
as Agent/Manager
By
Name:
Title:
FLEET NATIONAL BANK
By
Name:
Title:
-16-
GENERAL ELECTRIC CAPITAL
CORPORATION
By
Name:
Title:
NATIONAL CITY BANK
By
Name:
Title:
FLEET BUSINESS CREDIT
CORPORATION
By
Name:
Title:
COMERICA BANK
By
Name:
Title:
XXX XXXXXX PRIME
RATE INCOME TRUST
By
Name:
Title:
-17-
SENIOR DEBT PORTFOLIO, by
BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By
Name:
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By
Name:
Title:
PILGRIM PRIME RATE TRUST, by
PILGRIM INVESTMENTS, INC.,
as Investment Manager
By
Name:
Title:
ML CBO IV (CAYMAN), by
HIGHLAND CAPITAL MANAGEMENT
L.P., as Collateral Manager
By
Name:
Title:
BOEING CAPITAL CORPORATION
By
Name:
Title:
-18-
BANK POLSKA KASA OPIEKI S.A. -
PEKAO S.A. GROUP, NEW YORK
BRANCH
By
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By
Name:
Title:
