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EXHIBIT 10.12.1
Waiver and Consent
As of September __, 1999
THOMASTON XXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Re: Loan and Security Agreement dated as of July 27, 1999 among
Thomaston Xxxxx, Inc., as Borrower, the Lenders party thereto,
Foothill Capital Corporation and General Electric Capital
Corporation, as Co-Agents, and Foothill Capital Corporation,
as Agent (the "Loan Agreement"; capitalized terms used herein
and not otherwise defined herein shall have the meanings
ascribed thereto in the Loan Agreement)
Gentlemen:
You have requested that the Lenders waive compliance by the Borrower
with Section 7.4 of the Loan Agreement to permit the Borrower to sell the assets
listed in the table below at a gross sales price of at least the amount set
forth in such table immediately beside the description of such asset
(collectively, the "Proposed Asset Sales"):
ASSET TO BE SOLD: MINIMUM GROSS SALES PRICE:
----------------- --------------------------
25 Sulzer P-7100 weaving machines and $550,000
auxiliary equipment
14 Rieter Model C-4 Cards, year 1988 $210,000
2 Buick Roadmaster SDs $ 8,500
VIN # 0X0XX00X0XX000000 and
VIN# G4BN52PORR410058
3 Schlafhorst spinning frames, Model $ 18,000
year 1983
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ASSET TO BE SOLD: MINIMUM GROSS SALES PRICE:
----------------- --------------------------
Viper Trademark $ 10,000
United Stated Patent and Trademark
Office Registration Number 1,849,350
(the "Viper Trademark")
The Lenders have agreed to such Proposed Asset Sales so long as (a) the purchase
price therefor is paid in full in cash at the closing of the applicable Proposed
Asset Sale, (b) the assets are sold "as-is, where-is", (c) promptly upon the
sale of such assets, the Borrower shall notify the Agent that such sale has been
consummated, and (d) the proceeds (after payment of reasonable commissions and
expenses not to exceed 10% of the gross sales price therefor) from the sale of
the assets are remitted to the Agent for application to the Obligations in
accordance with Section 2.5(b) (iii). Notwithstanding anything to the contrary
contained in the Credit Agreement, the parties hereto hereby agree that such net
proceeds from the sale of the Viper Trademark shall be applied to the
Obligations in accordance with Section 2.5(b)(iii) in the same manner as such
proceeds would be applied if such sale were a sale of Equipment.
The Borrower has further requested that the Lenders waive compliance by
the Borrower with Section 7.4 of the Loan Agreement to permit future sales of
Equipment previously used by the Borrower in connection with the Borrower's
denim and industrial fabrics divisions (collectively, the "Future Equipment
Sales"). The Lenders have agreed to such Future Equipment Sales so long as (a)
after giving effect to this Waiver and Consent, no Default or Event of Default
then exists or would be caused thereby, (b) the net proceeds (after reasonable
commissions and expenses not to exceed 10% of the gross sales price therefor)
for each item of Equipment sold are not less than the forced liquidation value
of such Equipment as shown on the most recent appraisal completed for the Agent
by an appraiser satisfactory to the Co-Agents and based on comparable
methodology as used by MB Valuation Services, Inc. in connection with its
appraisal of the Equipment in connection with the closing of the Loan Agreement
(the "Forced Liquidation Value"), (c) the purchase price therefor is paid in
full in cash at the closing of the applicable Future Equipment Sale, (d) the
Equipment is sold "as-is, where-is", (e) prior to the effective date of the sale
the Borrower shall notify the Agent in writing of the proposed sale, the Forced
Liquidation Value of the Equipment to be sold, and the proposed gross sales
price and projected net sales proceeds therefor, (f) promptly upon the sale of
such Equipment, the Borrower shall notify the Agent that such sale has been
consummated, and (g) the net proceeds from the sale of the Equipment are
remitted to the Agent for application to the Obligations in accordance with
Section 2.5(b)(iii).
The Borrower has further requested that the Lenders approve non-cash
charges in the amount of $9,650,000 to be included in subsection (c) of the
definition of Tangible Net Worth as of the July 31, 1999. The Lenders have
agreed that such non-cash charges be included in subsection (c) of the
definition of Tangible Net Worth as of July 31, 1999.
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This Waiver and Consent shall be effective only upon (a) the execution
and delivery by the Borrower to the Agent of the acknowledgment and consent to
this Waiver and Agreement and (b) the receipt by the Agent for the account of
the Lenders of a consent fee in the amount of $2,500 (it being understood that,
by executing the acknowledgment and consent below the Borrower consents to the
Agent charging the Borrower's Loan Account for such fee and such fee shall
thereafter accrue interest at the rate applicable to Advances under the Loan
Agreement in accordance with Section 2.7(e) of the Loan Agreement).
Except as set forth above, all terms and conditions of the Loan
Agreement and all Loan Documents shall remain in full force and effect and not
be affected by this Waiver and Consent, and the Lenders reserve the right to
require strict compliance with the terms and conditions of the Loan Agreement
and the related Loan Documents, including without limitation Section 7.4 and
Section 7.20(b) of the Loan Agreement.
This Waiver and Consent shall be a Loan Document for all purposes.
This Waiver and Consent may be executed in any number of counterparts,
each of which shall be deemed an original but all of which, when taken together,
shall constitute one in the same agreement. Delivery of a counterpart hereto by
facsimile transmission shall be as effective as delivery of an original
counterpart hereto.
If the above provisions are satisfactory to you, please execute this
Waiver and Consent as set forth below and return it to the Agent.
Very truly yours,
Foothill Capital Corporation, a California
corporation with an office in Atlanta,
Georgia, as Agent, a Co-Agent and a Lender
By: /s/
----------------------------------------------------
Title:
----------------------------------------------
General Electric Capital Corporation, a New
York corporation with an office in Atlanta,
Georgia, as a Lender and a Co-Agent
By: /s/
----------------------------------------------------
Title:
----------------------------------------------
Back Bay Capital Funding LLC, a Delaware
limited liability company, as a Lender
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By: /s/
---------------------------
Title:
---------------------
cc: Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Consented and Agreed to this
___ day of September, 1999:
Thomaston Xxxxx, Inc.
By: /s/
---------------------------
Title:
---------------------
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Second Waiver and Amendment
As of December 31, 1999
THOMASTON XXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Re: Loan and Security Agreement dated as of July 27, 1999 among
Thomaston Xxxxx, Inc., as Borrower, the Lenders party thereto,
Foothill Capital Corporation and General Electric Capital
Corporation, as Co-Agents, and Foothill Capital Corporation,
as Agent, as modified and amended by that certain Waiver and
Consent dated as of September 16, 1999 (the "Loan Agreement";
capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Loan
Agreement)
Gentlemen:
You have requested that the definition of "Eligible Off-Site Inventory"
in Section 1(A) of the Loan Agreement be modified and amended to add the
following sentence immediately after the first sentence of such definition:
"In addition, "Eligible Off-Site Inventory" means those items
of Inventory consisting of finished goods with an aggregate
Cost not to exceed $1,000,000 that do not qualify as Eligible
Landed Inventory solely because they are not in a location set
forth on Schedule E-1 but such Inventory is located at
National Linen Service, Inc., 0000 Xxxxxxxxx Xxxxxx , Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx and is segregated or otherwise
separately identifiable from goods of others, if any, on such
premises of National Linen Service, Inc. and National Linen
Services, Inc. has executed a Collateral Access Agreement in
favor of Agent with respect thereto."
The Lenders have agreed to such modification and amendment to the
definition of "Eligible Off-Site Inventory" and such definition is hereby so
modified and amended.
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The Borrower has further requested that the Lenders waive compliance by
the Borrower with Section 7.4 of the Loan Agreement to permit the sale of
certain real estate identified on Exhibit A hereto to Georgia Power Company in
connection with its construction of a power substation adjacent to such property
(the "Utility Sale"). The Lenders have agreed to such Utility Sale so long as
(a) after giving effect to this Second Waiver and Amendment, no Default or Event
of Default then exists or would be caused thereby, (b) the gross proceeds for
such real estate sold is not less than $13,972.00 (c) the purchase price
therefor is paid in full in cash at the closing of the Utility Sale, (d)
promptly upon the sale of such real estate, the Borrower shall notify the Agent
that such sale has been consummated, and (e) the net proceeds from the sale of
such real estate are remitted to the Sun Trust Lenders for application to the
Sun Trust Term Loan.
This Second Waiver and Amendment shall be effective only upon (a) the
execution and delivery by the Borrower to the Agent of the acknowledgment and
consent to this Second Waiver and Amendment and (b) the receipt by the Agent for
the account of the Lenders of a consent fee in the amount of $2,500.00 (it being
understood that, by executing the acknowledgment and consent below the Borrower
consents to the Agent charging the Borrower's Loan Account for such fee and such
fee shall thereafter accrue interest at the rate applicable to Advances under
the Loan Agreement in accordance with Section 2.7(e) of the Loan Agreement).
Except as set forth above, all terms and conditions of the Loan
Agreement and all Loan Documents shall remain in full force and effect and not
be affected by this Second Waiver and Amendment, and the Lenders reserve the
right to require strict compliance with the terms and conditions of the Loan
Agreement and the related Loan Documents, including without limitation Section
7.4 of the Loan Agreement.
This Second Waiver and Amendment shall be a Loan Document for all
purposes.
This Second Waiver and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which, when
taken together, shall constitute one in the same agreement. Delivery of a
counterpart hereto by facsimile transmission shall be as effective as delivery
of an original counterpart hereto.
If the above provisions are satisfactory to you, please execute this
Second Waiver and Amendment as set forth below and return it to the Agent.
Very truly yours,
Foothill Capital Corporation, a California
corporation with an office in Atlanta, Georgia, as
Agent, a Co-Agent and a Lender
By: /s/
-------------------------------------------------
Title:
-------------------------------------------
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General Electric Capital Corporation, a New York
corporation with an office in Atlanta, Georgia, as a
Lender and a Co-Agent
By: /s/
-------------------------------------------------
Title:
-------------------------------------------
Back Bay Capital Funding LLC, a Delaware limited
liability company, as a Lender
By: /s/
-------------------------------------------------
Title:
-------------------------------------------
cc: Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Consented and Agreed to this
___ day of December, 1999:
Thomaston Xxxxx, Inc.
By: /s/
----------------------------
Title:
----------------------
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Third Waiver and Amendment
As of February 9, 2000
THOMASTON XXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Re: Loan and Security Agreement dated as of July 27, 1999 among
Thomaston Xxxxx, Inc., as Borrower, the Lenders party thereto,
Foothill Capital Corporation and General Electric Capital
Corporation, as Co-Agents, and Foothill Capital Corporation,
as Agent, as modified and amended by that certain Waiver and
Consent dated as of September 16, 1999, as further modified
and amended by that certain Second Waiver and Amendment dated
as of December 31, 1999 (the "Loan Agreement"; capitalized
terms used herein and not otherwise defined herein shall have
the meanings ascribed thereto in the Loan Agreement)
Gentlemen:
You have requested that the Lenders waive compliance by the Borrower
with Section 7.4 of the Loan Agreement to permit the sale of certain real estate
identified on Exhibit A hereto (the "Real Estate Sale"). The Lenders have agreed
to such Real Estate Sale so long as (a) after giving effect to this Third Waiver
and Amendment, no Default or Event of Default then exists or would be caused
thereby, (b) the gross proceeds for such real estate sold are not less than
$85,000.00 (c) the purchase price therefor is paid in full in cash at the
closing of the Real Estate Sale, (d) promptly upon the sale of such real estate,
the Borrower shall notify the Agent that such sale has been consummated, and (e)
the net proceeds from the sale of such real estate are remitted to the Sun Trust
Lenders for application to the Sun Trust Term Loan.
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This Third Waiver and Amendment shall be effective only upon (a) the
execution and delivery by the Borrower to the Agent of the acknowledgment and
consent to this Third Waiver and Amendment and (b) the receipt by the Agent for
the account of the Lenders of a consent fee in the amount of $2,500.00 (it being
understood that, by executing the acknowledgment and consent below the Borrower
consents to the Agent charging the Borrower's Loan Account for such fee and such
fee shall thereafter accrue interest at the rate applicable to Advances under
the Loan Agreement in accordance with Section 2.7(e) of the Loan Agreement).
Except as set forth above, all terms and conditions of the Loan
Agreement and all Loan Documents shall remain in full force and effect and not
be affected by this Third Waiver and Amendment, and the Lenders reserve the
right to require strict compliance with the terms and conditions of the Loan
Agreement and the related Loan Documents, including without limitation Section
7.4 of the Loan Agreement.
This Third Waiver and Amendment shall be a Loan Document for all
purposes.
This Third Waiver and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which, when
taken together, shall constitute one in the same agreement. Delivery of a
counterpart hereto by facsimile transmission shall be as effective as delivery
of an original counterpart hereto.
If the above provisions are satisfactory to you, please execute this
Third Waiver and Amendment as set forth below and return it to the Agent.
Very truly yours,
Foothill Capital Corporation, a California
corporation with an office in Atlanta, Georgia, as
Agent, a Co-Agent and a Lender
By: /s/
--------------------------------------------------
Title:
--------------------------------------------
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General Electric Capital Corporation,
a New York corporation with an office
in Atlanta, Georgia, as a Lender and
a Co-Agent
By: /s/
-------------------------------------
Title:
-------------------------------
Back Bay Capital Funding LLC, a Delaware
limited liability company, as a Lender
By: /s/
-------------------------------------
Title:
-------------------------------
cc: Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Consented and Agreed as of the
9th day of February, 2000:
Thomaston Xxxxx, Inc.
By: /s/
-----------------------------
Title:
-----------------------
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Fourth Waiver and Amendment
As of May 31, 2000
THOMASTON XXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Re: Loan and Security Agreement dated as of July 27, 1999 among
Thomaston Xxxxx, Inc., as Borrower, the Lenders party thereto,
Foothill Capital Corporation and General Electric Capital
Corporation, as Co- Agents, and Foothill Capital Corporation,
as Agent, as modified and amended by that certain Waiver and
Consent dated as of September 16, 1999, as further modified
and amended by that certain Second Waiver and Amendment dated
as of December 31, 1999, as further modified and amended by
that certain Third Waiver and Amendment dated as of February
9, 2000 (the "Loan Agreement"; capitalized terms used herein
and not otherwise defined herein shall have the meanings
ascribed thereto in the Loan Agreement)
Gentlemen:
You have requested that the Lenders waive compliance by the Borrower
with Section 7.1, Section 7.2, Section 7.4 and Section 7.6 of the Loan Agreement
to permit the refinancing of a portion of the SunTrust Term Loan by WebBank
("Web") pursuant to that certain Loan Agreement of even date herewith among the
Borrower and Web (the "Web Loan Agreement"; and together with all other loan
documents to be executed in connection therewith, the "Web Loan Documents") to
be secured by a deed to secure debt on certain real estate identified on Exhibit
A hereto (the "Lakeside Real Estate") and a lien on certain personal property
located on the Lakeside Real Estate and identified on Exhibit B hereto (the "Web
Personalty") and to be guarantied by Thomaston Xxxxx FSC, Inc. pursuant to an
unsecured guaranty. In connection therewith, the Borrower has requested that the
Agent release its lien on the Lakeside Real Estate and the Web Personalty. Such
refinancing pursuant to the Web Loan Agreement, the grant of such liens and
guaranty and the release of such Collateral is hereafter referred to as the "Web
Transaction." The Lenders have agreed to the Web Transaction so long as (a)
after giving effect to this Fourth Waiver and Amendment, no Default or Event of
Default then exists or would be caused thereby, (b) the gross amount of the loan
from Web is not less than $10,000,000, (c) the Lenders receive not less than
$525,000 from the proceeds of such loan, (d) the principal balance on the
SunTrust Term Loan is reduced by $9,000,000 from the proceeds from such loan,
(e) the Agent has received evidence satisfactory to it that the SunTrust Lenders
have released their liens on the Lakeside Real Estate and the Web Personalty,
and (f) promptly upon the closing of such loan, the Borrower shall notify the
Agent that such
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loan has been consummated and shall deliver executed copies of the Web Loan
Documents executed in connection therewith to the Agent.
The Loan Agreement is hereby modified and amended to the extent
necessary to permit the Web Transaction, to provide that all funds received by
the Lenders from the proceeds of the loan from Web to the Borrower shall be
applied to the Tranche A Term Loan, and to provide that modification of the Web
Loan Documents is restricted by Section 7.8(a) and (b) of the Loan Agreement. In
addition to the foregoing, Section 8.10 of the Loan Agreement is hereby modified
and amended to delete the word "or" immediately preceding clause (b) thereof and
the following is hereby added to the end of such Section 8.10:
", or (c) if there is a default under that certain Loan Agreement dated
as of May 31, 2000 between the Borrower and WebBank (as modified from
time to time pursuant to the terms hereof) or any loan document
executed in connection therewith;"
This Fourth Waiver and Amendment shall be effective only upon (a) the
execution and delivery by the Borrower to the Agent of the acknowledgment and
consent to this Fourth Waiver and Amendment and (b) the receipt by the Agent for
the account of the Lenders of a consent fee in the amount of $5,000 (it being
understood that, by executing the acknowledgment and consent below the Borrower
consents to the Agent charging the Borrower's Loan Account for such fee and such
fee shall thereafter accrue interest at the rate applicable to Advances under
the Loan Agreement in accordance with Section 2.7(e) of the Loan Agreement).
Except as set forth above, all terms and conditions of the Loan
Agreement and all Loan Documents shall remain in full force and effect and not
be affected by this Fourth Waiver and Amendment, and the Lenders reserve the
right to require strict compliance with the terms and conditions of the Loan
Agreement and the related Loan Documents, including without limitation Sections
7.1, 7.2, 7.4, 7.6, 7.8 and 8.10 of the Loan Agreement.
This Fourth Waiver and Amendment shall be a Loan Document for all
purposes.
This Fourth Waiver and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which, when
taken together, shall constitute one in the same agreement. Delivery of a
counterpart hereto by facsimile transmission shall be as effective as delivery
of an original counterpart hereto.
If the above provisions are satisfactory to you, please execute this
Fourth Waiver and Amendment as set forth below and return it to the Agent.
[signatures are on following page]
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Very truly yours,
Foothill Capital Corporation, a California
corporation with an office in Atlanta, Georgia, as
Agent, a Co-Agent and a Lender
By: /s/
Title:
General Electric Capital Corporation, a New York
corporation with an office in Atlanta, Georgia, as a
Lender and a Co-Agent
By: /s/
Title:
Back Bay Capital Funding LLC, a Delaware limited
liability company, as a Lender
By: /s/
Title:
cc: Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Consented and Agreed as of the
___ day of __________, 2000:
Thomaston Xxxxx, Inc.
By: /s/
Title:
FOURTH WAIVER AND AMENDMENT
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Fifth Waiver and Amendment
As of September 12, 2000
THOMASTON XXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Re: Loan and Security Agreement dated as of July 27, 1999 among
Thomaston Xxxxx, Inc., as Borrower, the Lenders party thereto,
Foothill Capital Corporation and General Electric Capital
Corporation, as Co-Agents, and Foothill Capital Corporation,
as Agent, as modified and amended by that certain Waiver and
Consent dated as of September 16, 1999, as further modified
and amended by that certain Second Waiver and Amendment dated
as of December 31, 1999, as further modified and amended by
that certain Third Waiver and Amendment dated as of February
9, 2000, as further modified and amended by that certain
Fourth Waiver and Amendment dated as of May 31, 2000 (the
"Loan Agreement"; capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed
thereto in the Loan Agreement)
Gentlemen:
You have requested that the Lenders waive, and the Lenders have agreed
to waive, compliance by the Borrower with Section 7.20(a) of the Loan Agreement,
Minimum EBITDA, for the period ending May 31, 2000.
In addition, you have requested that the table in Section 7.22 of the
Loan Agreement, Collateral Coverage, be modified and amended, and such table is
hereby modified and amended, to delete the reference to "July 31, 2000" therein
and to substitute "October 31, 2000" therefor.
This Fifth Waiver and Amendment shall be effective only upon (a)
the execution and delivery by the Borrower to the Agent of the acknowledgment
and consent to this Fifth Waiver and Amendment and (b) the receipt by the Agent
for the account of the Lenders of a consent fee in the amount of $25,000.00 (it
being understood that, by executing the acknowledgment and consent below the
Borrower consents to the Agent charging the Borrower's Loan Account for such fee
and such fee shall thereafter accrue interest at the rate applicable to Advances
under the Loan Agreement in accordance with Section 2.7(e) of the Loan
Agreement).
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Except as set forth above, all terms and conditions of the Loan
Agreement and all Loan Documents shall remain in full force and effect and not
be affected by this Fifth Waiver and Amendment, and the Lenders reserve the
right to require strict compliance with the terms and conditions of the Loan
Agreement and the related Loan Documents, including without limitation Section
7.20(a) and Section 7.22 of the Loan Agreement.
This Fifth Waiver and Amendment shall be a Loan Document for all
purposes.
This Fifth Waiver and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which, when
taken together, shall constitute one in the same agreement. Delivery of a
counterpart hereto by facsimile transmission shall be as effective as delivery
of an original counterpart hereto.
If the above provisions are satisfactory to you, please execute this
Fifth Waiver and Amendment as set forth below and return it to the Agent.
[signatures are on following page]
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Very truly yours,
Foothill Capital Corporation, a California
corporation with an office in Atlanta, Georgia, as
Agent, a Co-Agent and a Lender
By: /s/
--------------------------------------------------
Title:
--------------------------------------------
General Electric Capital Corporation, a New York
corporation with an office in Atlanta, Georgia, as a
Lender and a Co-Agent
By: /s/
--------------------------------------------------
Title:
--------------------------------------------
Back Bay Capital Funding LLC, a Delaware limited
liability company, as a Lender
By: /s/
--------------------------------------------------
Title:
--------------------------------------------
cc: Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Consented and Agreed as of the
____ day of September, 2000:
Thomaston Xxxxx, Inc.
By: /s/
----------------------------
Title:
----------------------
FIFTH WAIVER AND AMENDMENT
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Sixth Waiver and Amendment
As of September 12, 2000
THOMASTON XXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Re: Loan and Security Agreement dated as of July 27, 1999 among
Thomaston Xxxxx, Inc., as Borrower, the Lenders party thereto,
Foothill Capital Corporation and General Electric Capital
Corporation, as Co-Agents, and Foothill Capital Corporation,
as Agent, as modified and amended by that certain Waiver and
Consent dated as of September 16, 1999, as further modified
and amended by that certain Second Waiver and Amendment dated
as of December 31, 1999, as further modified and amended by
that certain Third Waiver and Amendment dated as of February
9, 2000, as further modified and amended by that certain
Fourth Waiver and Amendment dated as of May 31, 2000, as
further modified and amended by that certain Fifth Waiver and
Amendment dated as of September 12, 2000 (the "Loan
Agreement"; capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed thereto in the
Loan Agreement)
Gentlemen:
You have requested that the Lenders waive, and the Lenders hereby
waive, compliance by the Borrower with Section 7.20(a) of the Loan Agreement,
Minimum EBITDA, for the period ending June 30, 2000.
In addition, you have requested that the Lenders waive, and the
Lenders hereby waive, compliance by the Borrower with Section 7.20(b) of the
Loan Agreement, Tangible Net Worth, for the period ending June 30, 2000.
In addition, you and the Lenders hereby agree to modify and amend
subsection (b) of Section 2.1 of the Loan Agreement, Revolving Advances, to add
the following sentence at the end of such subsection:
"In addition to the foregoing reserves, as of September 12, 2000
there shall be a reserve against the Borrowing Base in the amount
of $666,666.66 which reserve shall be reduced by the amount of any
principal payments made on the Tranche A
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Term Loans after September 12, 2000 and which reserve shall be
eliminated at such time as the ratio of the principal balance of
the Term Loans to the most recently determined Equipment Net
Liquidation Value is equal to or less than 85%."
In addition, you have requested that the table in Section 7.20(a)
of the Loan Agreement, Minimum EBITDA, be modified and amended, and such table
is hereby modified and amended, to add the following additional monthly
covenants as set forth in the table below:
-------------------------------------------
As of the fiscal month Year-to-Date
ended closest to: EBITDA:
-------------------------------------------
July 31, 2000 $ 333,000
-------------------------------------------
August 31, 2000 $ 352,000
-------------------------------------------
September 30, 2000 $ 684,000
-------------------------------------------
October 31, 2000 $1,077,000
-------------------------------------------
November 30, 2000 $1,315,000
-------------------------------------------
December 31, 2000 $1,450,000
-------------------------------------------
January 31, 2001 $1,885,000
-------------------------------------------
February 28, 2001 $2,353,000
-------------------------------------------
March 31, 2001 $3,166,000
-------------------------------------------
April 30, 2001 $3,948,000
-------------------------------------------
May 31, 2001 $4,654,000
-------------------------------------------
June 30, 2001 $5,415,000
-------------------------------------------
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In addition, you have requested that the table in Section 7.20(b)
of the Loan Agreement, Tangible Net Worth, be modified and amended, and such
table is hereby modified and amended, to add the following additional monthly
covenants as set forth in the table below:
--------------------------------------------
As of the fiscal month
ended closest to: Tangible Net Worth:
--------------------------------------------
July 31, 2000 $17,905,000
--------------------------------------------
August 31, 2000 $16,705,000
--------------------------------------------
September 30, 2000 $15,557,000
--------------------------------------------
October 31, 2000 $14,745,000
--------------------------------------------
November 30, 2000 $13,771,000
--------------------------------------------
December 31, 2000 $12,372,000
--------------------------------------------
January 31, 2001 $11,563,000
--------------------------------------------
February 28, 2001 $10,800,000
--------------------------------------------
March 31, 2001 $10,117,000
--------------------------------------------
April 30, 2001 $ 9,657,000
--------------------------------------------
May 31, 2001 $ 9,124,000
--------------------------------------------
June 30, 2001 $ 8,375,000
--------------------------------------------
In addition, you have requested that the first proviso at the end
of Section 7.20 of the Loan Agreement, Financial Covenants, be modified and
amended, and such proviso is hereby modified and amended, to delete the
references to "June 30, 2000" therein and to substitute "June 30, 2001"
therefor.
In addition, you have requested that the second proviso at the end
of Section 7.20 of the Loan Agreement, Financial Covenants, be modified and
amended, and such proviso is hereby modified and amended, to delete the
reference to "$37,639,000" therein and to substitute "$8,375,000" therefor.
By executing the acknowledgment below, the Borrower hereby makes
the following representations:
The execution, delivery and performance by the Borrower of this
letter agreement and the Loan Agreement as amended hereby are
within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action and do not contravene (i) the
Borrower's articles or certificate of incorporation, or (ii) law
or any contractual restriction binding on or affecting the
Borrower;
This letter agreement and the Loan Agreement as amended hereby
constitute the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms; and
Except for the Defaults and Events of Default specifically waived
hereby, no Default or Event of Default is existing.
This Sixth Waiver and Amendment shall be effective only upon (a)
the execution and delivery by the Borrower to the Agent of the acknowledgment
and consent to this
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Sixth Waiver and Amendment and (b) the receipt by the Agent for the account of
the Lenders of a consent fee in the amount of $75,000.00 (it being understood
that, by executing the acknowledgment and consent below the Borrower consents to
the Agent charging the Borrower's Loan Account for such fee and such fee shall
thereafter accrue interest at the rate applicable to Advances under the Loan
Agreement in accordance with Section 2.7(e) of the Loan Agreement).
As a condition subsequent to this Sixth Waiver and Amendment, the
Borrower hereby agrees to obtain loans against the life insurance policy or
policies on the life of Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx, Xx. and Xxxxxxx Xxxxx
and use the proceeds therefrom (in respect of the cash surrender value thereof)
in an amount aggregating $1,000,000 to make a prepayment of the Advances (but
not a corresponding reduction in the Commitment) on or before October 3, 2000.
The Loan Agreement is hereby modified and amended to the extent necessary to
provide that the failure by the Borrower to make such prepayment shall
constitute an Event of Default under the Loan Agreement.
Except as set forth above, all terms and conditions of the Loan
Agreement and all other Loan Documents shall remain in full force and effect and
not be affected by this Sixth Waiver and Amendment, and the Lenders reserve the
right to require strict compliance with the terms and conditions of the Loan
Agreement and the related Loan Documents, including without limitation Section
7.20 of the Loan Agreement.
This Sixth Waiver and Amendment shall be a Loan Document for all
purposes.
This Sixth Waiver and Amendment may be executed in any number of
counterparts, each of which shall be deemed an original but all of which, when
taken together, shall constitute one in the same agreement. Delivery of a
counterpart hereto by facsimile transmission shall be as effective as delivery
of an original counterpart hereto.
If the above provisions are satisfactory to you, please execute
this Sixth Waiver and Amendment as set forth below and return it to the Agent.
[signatures are on following page]
4
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Very truly yours,
Foothill Capital Corporation, a California
corporation with an office in Atlanta, Georgia, as
Agent, a Co-Agent and a Lender
By:
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Title:
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General Electric Capital Corporation, a New York
corporation with an office in Atlanta, Georgia, as a
Lender and a Co-Agent
By:
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Title:
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Back Bay Capital Funding LLC, a Delaware limited
liability company, as a Lender
By:
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Title:
------------------------------------------
cc: Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Consented and Agreed as of the
12th day of September, 2000:
Thomaston Xxxxx, Inc.
By:
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Title:
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