EXHIBIT 4.11
FIRST WAIVER TO
THE BANK CREDIT AGREEMENT
WAIVER TO CREDIT AGREEMENT
THIS WAIVER TO CREDIT AGREEMENT (this "Waiver"), dated as of
October 18, 2002, by and among the lenders listed on the
signature pages hereof (the "Lenders"), XXXXXX MANUFACTURING
COMPANY, a Delaware corporation (the "Borrower"), and BANK OF
AMERICA, N.A., as administrative agent for the Lenders (the
"Administrative Agent"), to the extent and in the manner
provided for in the Credit Agreement (defined below and herein
so called).
BACKGROUND
THE BORROWER, THE LENDERS, AND THE ADMINISTRATIVE AGENT ARE
PARTIES TO THAT CERTAIN CREDIT AGREEMENT, DATED AS OF JUNE 30,
2001, AS AMENDED BY THAT CERTAIN FIRST AMENDMENT, DATED AS OF
DECEMBER 4, 2001 (SAID CREDIT AGREEMENT, AS AMENDED, THE
"CREDIT AGREEMENT"; THE TERMS DEFINED IN THE CREDIT AGREEMENT
AND NOT OTHERWISE DEFINED HEREIN SHALL BE USED HEREIN AS
DEFINED IN THE CREDIT AGREEMENT).
THE BORROWER HAS REQUESTED A WAIVER OF EVENTS OF DEFAULT UNDER
THE CREDIT AGREEMENT SOLELY WITH RESPECT TO THE FIXED CHARGE
COVERAGE RATIO AS OF THE FISCAL QUARTER ENDED SEPTEMBER 30,
2002. NOW, THEREFORE, in consideration of the covenants,
conditions and agreements hereafter set forth, and for other
good and valuable consideration, the receipt and adequacy of
which are all hereby acknowledged, the parties hereto covenant
and agree as follows:
WAIVER. SUBJECT TO THE SATISFACTION OF THE CONDITIONS OF
EFFECTIVENESS SET FORTH IN SECTION 4 HEREOF, THE LENDERS
HEREBY WAIVE COMPLIANCE WITH THE FIXED CHARGE COVERAGE RATIO
SET FORTH IN SECTION 7.2 OF THE CREDIT AGREEMENT AT THE
BORROWER'S FISCAL QUARTER ENDING SEPTEMBER 30, 2002. THE
WAIVER PROVIDED HEREIN IS LIMITED AND (A) DOES NOT AFFECT ANY
OTHER COVENANT OR PROVISION OF THE CREDIT AGREEMENT OR ANY
OTHER LOAN DOCUMENT AND (B) DOES NOT RELATE TO ANY OTHER
FISCAL QUARTER.
COMMITMENT AVAILABILITY. IN CONSIDERATION OF THE WAIVER
PROVIDED IN THE FOREGOING SECTION 1, THE BORROWER AND THE
LENDERS HEREBY ACKNOWLEDGE THAT, NOTWITHSTANDING ANYTHING IN
THE CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT TO THE
CONTRARY, (A) THE LENDERS SHALL HAVE NO COMMITMENT TO MAKE ANY
ADVANCES UNDER SECTION 2.1 OF THE CREDIT AGREEMENT OR
OTHERWISE ADVANCE ANY FUNDS TO THE BORROWER, (B) ANY DRAW
UNDER ANY LETTER OF CREDIT DURING THE TERM OF THIS WAIVER
SHALL IMMEDIATELY AND AUTOMATICALLY RESULT IN AN OBLIGATION
FOR THE BORROWER TO REIMBURSE THE ISSUING BANK FOR ANY SUCH
DRAW (WHICH REIMBURSEMENT OBLIGATION MAY NOT BE PAID BY THE
BORROWER WITH THE PROCEEDS OF AN ADVANCE), AND (C) THE
AGGREGATE MAXIMUM AMOUNT OF LETTERS OF CREDIT THAT MAY BE
ISSUED AND OUTSTANDING AT ANY TIME SHALL NOT EXCEED
$22,100,000, WHICH MAXIMUM AMOUNT SHALL BE AUTOMATICALLY
REDUCED TO $19,100,000 UPON THE EXPIRATION OF LETTER OF CREDIT
NO. XXXXXXX00000, FOR THE BENEFIT OF BANK OF COMMUNICATIONS
TIANJIN BRANCH, TEDA SUB BRANCH NO. 88. NOTHING PROVIDED
HEREIN SHALL RELIEVE THE OBLIGATION OF ANY LENDER FROM FUNDING
ITS OBLIGATIONS UNDER SECTION 2.16(C) OF THE CREDIT AGREEMENT
WITH RESPECT TO DRAWS UNDER ANY LETTER OF CREDIT.
REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. BY
ITS EXECUTION AND DELIVERY HEREOF, THE BORROWER REPRESENTS AND
WARRANTS THAT, AS OF THE DATE HEREOF AND AFTER GIVING EFFECT
TO THE WAIVER SET FORTH IN THE FOREGOING SECTION 1:
the representations and warranties contained in the Credit
Agreement and the other Loan Documents are true and correct on
and as of the date hereof as made on and as of such date; and
no event has occurred and is continuing which constitutes a
Default or Event of Default.
CONDITIONS OF EFFECTIVENESS. THIS WAIVER SHALL BE EFFECTIVE AS
OF OCTOBER 18, 2002, SUBJECT TO THE FOLLOWING:
the representations and warranties set forth in Section 3 of
this Waiver shall be true and correct;
the Administrative Agent shall have received counterparts of
this Waiver executed by the Determining Lenders;
the Administrative Agent shall have received counterparts of
this Waiver executed by the Borrower and acknowledged by each
Guarantor; and
the Administrative Agent shall have received in form and
substance satisfactory to the Administrative Agent, such other
documents, certificates and instruments as the Lenders shall
require.
RELEASE.
Borrower and each of its Subsidiaries (collectively, the
"Borrower Parties") hereby unconditionally and irrevocably
remises, acquits, and fully and forever releases and
discharges the Administrative Agent and the Lenders and all
respective Affiliates and subsidiaries of the Administrative
Agent and the Lenders, their respective officers, servants,
employees, agents, attorneys, financial advisors, principals,
directors and shareholders, and their respective heirs, legal
representatives, successors and assigns (collectively, the
"Released Lender Parties") from any and all claims, demands,
causes of action, obligations, remedies, suits, damages and
liabilities of any nature whatsoever, whether now known,
suspected or claimed, whether arising under common law, in
equity or under statute, which any Borrower Party ever had or
now has against the Released Lender Parties which may have
arisen at any time on or prior to the date of the Credit
Agreement, this Waiver or the Loan Documents and which were in
any manner related to any of the Loan Documents or the
enforcement or attempted enforcement by the Administrative
Agent or the Lenders of rights, remedies or recourses related
thereto (collectively, the "Borrower Claims").
Each Borrower Party covenants and agrees never to commence,
voluntarily aid in any way, prosecute or cause to be commenced
or prosecuted against any of the Released Lender Parties any
of the Borrower Claims which may have arisen at any time on or
prior to the date of this Waiver and were in any manner
related to any of the Loan Documents.
GUARANTOR'S ACKNOWLEDGMENT. BY SIGNING BELOW, EACH GUARANTOR
(I) ACKNOWLEDGES, CONSENTS AND AGREES TO THE EXECUTION,
DELIVERY AND PERFORMANCE BY THE BORROWER OF THIS WAIVER, (II)
ACKNOWLEDGES AND AGREES THAT ITS OBLIGATIONS IN RESPECT OF ITS
SUBSIDIARY GUARANTY ARE NOT RELEASED, DIMINISHED, WAIVED,
MODIFIED, IMPAIRED OR AFFECTED IN ANY MANNER BY THIS WAIVER,
OR ANY OF THE PROVISIONS CONTEMPLATED HEREIN, (III) RATIFIES
AND CONFIRMS ITS OBLIGATIONS UNDER ITS SUBSIDIARY GUARANTY AND
(IV) ACKNOWLEDGES AND AGREES THAT IT HAS NO CLAIM OR OFFSETS
AGAINST, OR DEFENSES OR COUNTERCLAIMS TO, ITS SUBSIDIARY
GUARANTY.
REFERENCE TO THE CREDIT AGREEMENT.
Upon and during the effectiveness of this Waiver, each
reference in the Credit Agreement to "this Agreement",
"hereunder", or words of like import shall mean and be a
reference to the Credit Agreement, as affected by this Waiver.
Except as expressly set forth herein, this Waiver shall not by
implication or otherwise limit, impair, constitute a waiver
of, or otherwise affect the rights or remedies of the
Administrative Agent or the Lenders under the Credit Agreement
or any of the other Loan Documents, and shall not alter,
modify, amend, or in any way affect the terms, conditions,
obligations, covenants, or agreements contained in the Credit
Agreement or the other Loan Documents, all of which are hereby
ratified and affirmed in all respects and shall continue in
full force and effect.
COSTS AND EXPENSES. THE BORROWER SHALL BE OBLIGATED TO PAY THE
COSTS AND EXPENSES OF THE ADMINISTRATIVE AGENT IN CONNECTION
WITH THE PREPARATION, REPRODUCTION, EXECUTION AND DELIVERY OF
THIS WAIVER AND THE OTHER INSTRUMENTS AND DOCUMENTS TO BE
DELIVERED HEREUNDER.
EXECUTION IN COUNTERPARTS. THIS WAIVER MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN
SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED AND
DELIVERED SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH
WHEN TAKEN TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME
INSTRUMENT. FOR PURPOSES OF THIS WAIVER, A COUNTERPART HEREOF
(OR SIGNATURE PAGE THERETO) SIGNED AND TRANSMITTED BY ANY
PERSON PARTY HERETO TO THE ADMINISTRATIVE AGENT (OR ITS
COUNSEL) BY FACSIMILE MACHINE, TELECOPIER OR ELECTRONIC MAIL
IS TO BE TREATED AS AN ORIGINAL. THE SIGNATURE OF SUCH PERSON
THEREON, FOR PURPOSES HEREOF, IS TO BE CONSIDERED AS AN
ORIGINAL SIGNATURE, AND THE COUNTERPART (OR SIGNATURE PAGE
THERETO) SO TRANSMITTED IS TO BE CONSIDERED TO HAVE THE SAME
BINDING EFFECT AS AN ORIGINAL SIGNATURE ON AN ORIGINAL
DOCUMENT.
GOVERNING LAW; BINDING EFFECT. THIS WAIVER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS (WITHOUT GIVING EFFECT TO CONFLICT OF LAWS) AND THE
UNITED STATES OF AMERICA, AND SHALL BE BINDING UPON THE
BORROWER AND EACH LENDER AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS.
HEADINGS. SECTION HEADINGS IN THIS WAIVER ARE INCLUDED HEREIN
FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT CONSTITUTE A
PART OF THIS WAIVER FOR ANY OTHER PURPOSE.
ENTIRE AGREEMENT. THE CREDIT AGREEMENT, AS AMENDED BY THIS
WAIVER, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT MATTER THEREIN
AND HEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE
PARTIES.
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF, the parties hereto have executed this
Waiver as of the date first above written.
BORROWER:
XXXXXX MANUFACTURING COMPANY
By:
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Name:
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Title:
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ADMINISTRATIVE LENDER:
BANK OF AMERICA, N.A., as Administrative Lender
By:
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Name:
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Title:
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LENDERS:
BANK OF AMERICA, N.A., as a Lender and as the Issuing Bank
By:
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Name:
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Title:
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COMMERCE BANK, N.A.
By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED:
BMC REAL ESTATE, INC.
By:
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Name:
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Title:
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BUCON, INC.
By:
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Name:
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Title:
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XXXXXX HOLDINGS, INC.
By:
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Name:
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Title:
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XXXXXX REAL ESTATE, INC.
By:
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Name:
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Title:
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XXXXXX BUILDINGS, INC.
By:
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Name:
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Title:
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XXXXXX PACIFIC, INC.
By:
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Name:
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Title:
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MODULINE WINDOWS, INC.
By:
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Name:
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Title:
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LIBERTY BUILDING SYSTEMS, INC.
By:
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Name:
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Title:
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