GMAC COMMERCIAL FINANCE LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As of September 27, 2003
DELTA XXXXX, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Wavier
Gentlemen:
Reference is made to the evolving Credit and Security Agreement dated
as of March 31, 2003 (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 COMMERCIAL 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 comply
with (i) Section 6.9(a) of the Credit Agreement (Maximum Leverage Ratio) as at
September 27, 2003, and (ii) Section 6.9(b) of the Credit Agreement (Fixed
Charge Coverage Ratio) as at September 27, 2003, and as a result of such
noncompliance, Events of Default have occurred and are continuing under Section
10.5 of the Credit Agreement (the "Existing Defaults").
Borrower has requested that Agent and Lenders agree to waive the
Existing Defaults and Agent and Lenders have agreed to accommodate Borrower's
request subject to the terms and conditions 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 agree 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. WAIVERS.
A. MAXIMUM LEVERAGE RATIO. 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(a) of the Credit
Agreement as at September 27, 2003, subject to the terms and conditions set
forth herein.
B. FIXED CHARGE COVERAGE RATIO. 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(b) of the Credit
Agreement as at September 27, 2003, subject to the terms and conditions set
forth herein.
C. 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 provisions 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 a writing executed
by the party to be charged.
Very truly yours,
GMAC COMMERCIAL FINANCE LLC,
as Agent and Lender
By: /s/ Xxxx Xxxxxx
Title: Executive Vice President
ACKNOWLEDGED AND AGREED:
DELTA XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx. 9/26/03
Title: CFO
