EXHIBIT 4.3.1.6
GMAC COMMERCIAL FINANCE LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 19, 2004
DELTA XXXXX, INC.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Re: Waiver and Amendment to Credit Agreement and Other Documents
Gentlemen:
Reference is made to the Revolving Credit and Security Agreement dated
as of March 31, 2000 (as amended, restated, renewed, extended, supplemented,
substituted or otherwise modified, the "Credit Agreement"), by and between DELTA
XXXXX, INC. ("Borrower") and GMAC COMMERCIAL FINANCE LLC, as successor by merger
to 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"). All
capitalized terms used and not otherwise defined in this waiver and amendment
(this "Waiver") shall have the respective meanings ascribed to them in the
Credit Agreement.
An Event of Default has occurred under Section 10.5 of the Credit
Agreement as a result of Borrower's failure to maintain as of March 27, 2004 a
Leverage Ratio of not more than 6.1:1 as required under Section 6.9(a) of the
Credit Agreement (the "Existing Default"). Borrower has requested that Agent
waive such Event of Default and Agent has agreed to do so on the terms and
conditions set forth in this Waiver.
1. Agent hereby irrevocably waives the Existing Default and any other Event of
Default under Article X of the Credit Agreement resulting from Borrower's
failure to maintain a Leverage Ratio of not more than 6.0:1 as of March 27,
2004, provided that Borrower's Leverage Ratio as of such date as determined in
accordance with the Credit Agreement was not more than 6.24:1.
2. Effective as of the date hereof and for the period ending on July 3, 2004,
Section 6.9(a) of the Credit Agreement is hereby amended and restated as
follows:
"(a) Maximum Leverage Ratio. Maintain as of the last day of
each of Borrower's fiscal quarters for the period of four consecutive
quarters ending thereon, a Leverage Ratio of not more than 10.1:1."
After the close of business on July 3, 2004, the amendment to Section 6.9(a) of
the Credit Agreement set forth in this Waiver shall cease to be effective and
the terms of Section 6.9(a) of the Credit Agreement as in effect immediately
prior to the effectiveness of this Waiver shall automatically be restored
without any further action by the parties hereto.
3. Effective as of the date hereof and for the period ending on July 3,
2004, Section 6.9(b) of the Credit Agreement is hereby deleted in its entirely.
After the close of business on July 3, 2004, the amendment to Section 6.9(b) of
the Credit Agreement set forth in this Paragraph 3 shall cease to be effective
and the terms of Section 6.9(b) of the Credit Agreement as in effect immediately
prior to the effectiveness of this Waiver shall automatically be restored
without any further action by the parties hereto.
4. Effective as of the date hereof and for all periods thereafter,
Borrower may not permit the aggregate amount of the Obligations to exceed the
lesser of (a) the Maximum Loan Amount and (b) the Formula Amount minus
$7,000,000 (the "Availability Block").
5. The definition of "Applicable Margin for Domestic Rate Loans" set
forth in Article I of the Credit Agreement is hereby amended and restated in its
entirely as follows:
" "Applicable Margin for Domestic Rate Loans" shall mean .75%".
The amendment to the definition of "Applicable Margin for Domestic Rate Loans"
set forth in this Waiver shall cease to be effective and the terms of such
definition as in effect immediately prior to the effectiveness of this Waiver
shall automatically be restored without any further action by the parties hereto
if Borrower's operations for its fiscal year 2005 are profitable and no Event of
Default exists under the Credit Agreement.
6. The definition of "Applicable Margin for Eurodollar Rate Loans" set
forth in Article I of the Credit Agreement is hereby amended and restated in its
entirety as follows
" "Applicable Margin for Eurodollar Rate Loans" shall mean 3.0%."
The amendment to the definition of "Applicable Margin for Eurodollar Rate Loans"
set forth in this Waiver shall cease to be effective and the terms of such
definition as in effect immediately prior to the effectiveness of this Waiver
shall automatically be restored without any further action by the parties hereto
if Borrower's operations for its fiscal year 2005 are profitable ad no Event of
Default exists under the Credit Agreement.
7. Agent hereby reserves all rights and remedies granted to Agent under
the Credit Agreement and the Other Documents or applicable law or otherwise and
nothing contained herein shall be constued to limit, impair or otherwise affect
the right of Agent to declare a default or an Event of Default with respect to
any future non-compliance with any covenant, term or provision of the Credit
Agreement and 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.
8. 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 terms as of the date hereof. Except as specifically set forth herein,
nothing contained herein shall evidence a waiver or amendment by Agent of any
other provision of the Credit Agreement, the Credit Agreement or any of the
Other Documents nor shall anything herein be construed as a consent by Agent to
any transaction other than those specifically consented to herein.
9. The terms and provisions of this Waiver 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.
10. This Waiver may be signed in counterparts, each of which shall be
an original and all of which taken together constitute one amendment. In making
proof of this agreement, it shall not be necessary to produce or account for
more than one counterpart signed by the party to be charged.
11. This Waiver sets forth the entire agreement and understanding of
the parties with respect to the matters set forth herein. This Waiver 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 Xxxxxxxxxxx
Title: Senior Vice President
ACKNOWLEDGED AND AGREED:
DELTA XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
Title: CFO
