Exhibit 4.3.1.10
GMAC COMMERCIAL FINANCE LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as of May 12, 2005
DELTA XXXXX, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Waiver
Gentlemen:
Reference is made to the Revolving Credit and Security Agreement dated
as of March 31, 2000 (as the same now exists or may hereafter be amended,
restated, renewed, replaced, substituted, supplemented, extended, or otherwise
modified, the "Credit Agreement"), by and between DELTA XXXXX, INC. ("Borrower")
and GMAC CREDIT LLC, as a lender and as agent for the lenders party to the
Credit Agreement from time to time (in such capacity, "Agent").
Borrower hereby acknowledges, confirms and agrees that Borrower has
failed to comply with certain terms and provisions of the Credit Agreement and
the Other Documents, including, without limitation, Borrower's failure to
company with Section 6.9 of the Credit Agreement (Minimum EBITDA) for the four
quarter period ending April 2, 2005 and as a result of such noncompliance, an
Event of Default had occurred and is continuing under Section 10.5 of the Credit
Agreement (the "Existing Default").
Borrower has requested that Agent and Lenders agree to waive the
Existing Default and Agent and Lenders have agreed to accommodate Borrower's
request subject to the terms and condition set forth herein, all as more
particularly set forth below.
In consideration of the foregoing, and for good and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agrees as follows:
1. Definitions. Capitalized terms used in this Letter re: Waiver (this
"Agreement") and not otherwise defined shall have the meanings ascribed to such
terms in the Credit Agreement.
2. Waiver.
a. Minimum EBITDA. Agent and Lenders hereby waive the Event of
Default occurring under Section 10.5 of the Credit Agreement arising solely from
Borrower's failure to comply with the provisions of Section 6.9 of the Credit
Agreement as of April 2, 2005, subject to the terms and conditions set forth
herein.
b. Reservation of Rights. Agent and Lenders hereby reserve all
rights and remedies granted to Agent and Lenders under the Credit Agreement, the
Other Documents, applicable law or otherwise and nothing contained herein shall
be construed to limit, impair or otherwise affect the right of Agent to declare
a Default or an Event of Default with respect to any non-compliance with the
Credit Agreement or the Other Documents of which Agent does not have knowledge
as of the date hereof of and any future non-compliance with any covenant, term
or provision of the Credit Agreement, the Other Documents or any other document
now or hereafter executed and delivered in connection therewith. Without
limiting the foregoing, nothing herein contained shall, or shall be deemed to
waive any Default or Event of Default that Borrower has failed to disclose to
Agent as of the date hereof.
3. No Other Modifications. Except as specifically set forth herein, no
other changes or modifications to the Credit Agreement or the Other Documents
are intended or implied, and, in all other respects, the Credit Agreement and
the Other Documents shall continue to remain in full force and effect in
accordance with their respective terms as of the date hereof. Except as
specifically set forth herein, nothing contained herein shall evidence a waiver
by Agent or Lenders of any other provision of the Credit Agreement or the Other
Documents nor shall anything contained herein be construed as a consent by Agent
or Lenders to any transaction other than that specifically consented to herein.
4. No Third Party Beneficiaries. The terms and provisions of this
Agreement shall be for the benefit of the parties hereto and their respective
successors and assigns; no other person, firm, entity or corporation shall have
any right, benefit or interest under this Agreement.
5. Condition to Effectiveness. The terms and provisions of this
Agreement shall not be effective until this Agreement has been duly authorized,
executed and delivered by Borrower and Agent.
6. Counterparts. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Agreement, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. This Agreement may be executed and delivered via telecopier
with the same force and effect as if it were a manually executed and delivered
counterpart.
7. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York, but excluding any principles of
conflicts of law or other rule of law that would result in the application of
the law of any jurisdiction other than the laws of the State of New York.
8. Merger. This Agreement sets forth the entire agreement and
understanding of the parties with respect to the matters set forth herein. This
Agreement cannot be changed, modified, amended or terminated except in writing
executed by the party to be charged.
Very truly yours,
GMAC COMMERCIAL FINANCE LLC,
As Agent and Lender
By: /s/ Xxxx Xxxxxx
----------------------------
Title: Vice President
ACKNOWLEDGED AND AGREED:
DELTA XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------------
Title: Chief Financial Officer
