EXHIBIT 99.1
WAIVER AND AGREEMENT dated as of March 17, 2005 (this
"Waiver"), is entered into among CARCORP, INC., a Delaware corporation
("Transferor"), XXXXXXX & XXXXXX PRODUCTS CO., a Delaware corporation,
individually, in its capacity as "Guarantor" and in its capacity as collection
agent (in such capacity, the "Collection Agent"), GENERAL ELECTRIC CAPITAL
CORPORATION, in its capacity as committed purchaser (in such capacity, "GECC
Committed Purchaser") and as funding agent (in such capacity, "GECC Funding
Agent"), and GENERAL ELECTRIC CAPITAL CORPORATION, in its capacity as
administrative agent under the Transfer Agreement referred to below (in such
capacity, the "Administrative Agent"), and relates to that certain Receivables
Transfer Agreement, dated as of December 20, 2001, and as amended and restated
as of September 24, 2002 (as so amended and restated and as may be further
amended, restated, supplemented or otherwise modified from time to time,
including, without limitation, by the Amendment and Waiver, dated as of August
26, 2003 (the "First Amendment"), the Second Amendment, dated as of December 18,
2003 (the "Second Amendment"), the Third Amendment, dated as of December 10,
2004 (the "Third Amendment"), the Fourth Amendment, dated as of January 14, 2005
(the "Fourth Amendment") and the Fifth Amendment, dated as of February 22, 2005
(the "Fifth Amendment"), the "Transfer Agreement"), among Transferor, Collection
Agent, GECC Committed Purchaser, GECC Funding Agent, the other persons from time
to time party thereto as "Committed Purchasers," "Funding Agents" and "CP
Conduit Purchasers," and Administrative Agent. Capitalized terms used and not
otherwise defined herein have the respective meanings assigned to them in the
Transfer Agreement or Schedule A thereto.
WITNESSETH:
WHEREAS, the Transferor and the Collection Agent have requested and the
GECC Committed Purchaser, GECC Funding Agent and the Administrative Agent
(collectively, the "Consenting Parties") agree to waive certain provisions of
the Transfer Agreement and refrain from taking certain actions as set forth
herein;
WHEREAS, the Consenting Parties are willing to so waive such provisions
of the Transfer Agreement pursuant to the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Transferor, Collection Agent, Administrative
Agent, GECC Committed Purchaser and GECC Funding Agent agree as follows:
SECTION 1. Waivers by the Consenting Parties.
(a) The Consenting Parties hereby waive the obligation to
deliver (i) the consolidated balance sheets and related statements of
operations, stockholders' equity and cash flows as of the end of and for fiscal
year 2004 required to be delivered by Section 5.01(a)(i) of the Transfer
Agreement (the "Covered Financial Statements"), (ii) the certificate required to
be
delivered by Section 5.01(a)(iii) of the Transfer Agreement and (iii) the report
required to be delivered by Section 6.02(c) of the Transfer Agreement, in each
case until the earlier of: (x) the date on which an event of default occurs
under the Credit Agreement for failure to deliver any of the Covered Financial
Statements, (y) the date that is 30 days after the date on which a notice of
default for failure to deliver any of the Covered Financial Statements is
delivered pursuant to any of the indentures (the "Indentures") with respect to
the 12 7/8% Senior Subordinated Notes due 2012 or the 10 3/4% Senior Notes due
2011 (such 30-day period, the "Lockout Period") or (z) May 20, 2005 (the period
commencing on the date this Waiver becomes effective and ending on the earlier
of the dates referred to in clauses (x), (y) and (z) of this Section being
referred to herein as the "Covered Period").
(b) The Consenting Parties hereby waive, during the Covered
Period (i) the application of all representations and warranties in Section 3.01
of the Transfer Agreement and in any certificates delivered with respect thereto
to the extent such representations and warranties relate to the Investigation
(as defined below) and (ii) any failure to comply with the requirements of
Section 9.1(vi) of the Receivables Purchase Agreement and Section 6.15 of the
Credit Agreement as to any period ending on or before December 31, 2004 to the
extent such failure relates to the Investigation, except, in each case, to the
extent that the facts relating to the matters that are the subject of the
Investigation become materially inconsistent with such facts previously
disclosed to the Administrative Agent, and such inconsistency is materially
adverse to GECC Committed Purchaser.
(c) The Consenting Parties hereby waive, during the Covered
Period, any Termination Event arising from (i) the failure to comply with the
requirements of Sections 5.01(a)(i), 5.01(a)(iii) and 6.02(c) of the Transfer
Agreement (to the extent limited by Section 1(a)(iii) above), (ii) the
application of any of the representations and warranties in Article III of the
Transfer Agreement and in any certificates delivered under the Transfer
Agreement (to the extent limited by Section 1(b) above) and (iii) any failure to
comply with the requirements of Section 9.1(vi) of the Receivables Purchase
Agreement or Section 6.15 of the Credit Agreement as to any period ending on or
before December 31, 2004 (to the extent limited by Section 1(b) above) (such
failure or application during the Covered Period being a "Waived Event").
(d) The Consenting Parties agree that a Waived Event (i) shall
not constitute a Potential Termination Event or Termination Event and (ii) shall
not constitute the basis for the declaration of the Termination Date pursuant to
Section 7.2(a) of the Transfer Agreement or the "declaration of a Termination
Event" as that phrase is used in Section 9.1 of the Receivables Purchase
Agreement.
(e) The waivers and agreements provided for by paragraphs (a),
(b), (c) and (d) above shall terminate and expire at 11:59 p.m., New York City
time, on the final day of the Covered Period, and at all times thereafter the
Transfer Agreement and Receivables Purchase Agreement shall apply in all
respects, and the Administrative Agent, the GECC Funding Agent and the GECC
Committed Purchaser shall have all such rights and remedies, as if such waiver
had never been granted.
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(f) Notwithstanding anything herein to the contrary, the
waivers set forth in this Section 1 shall not constitute a waiver of any
Termination Event arising under Section 7.01(d) of the Transfer Agreement.
SECTION 2. Representations and Warranties. Each of Transferor
and Collection Agent hereby represents and warrants to Administrative Agent,
GECC Committed Purchaser and GECC Funding Agent that, as of the date hereof and
after giving effect to this Waiver:
(a) The execution, delivery and performance by each of
Transferor and Collection Agent of this Waiver (i) are within such Person's
corporate power, and (ii) have been duly authorized by all necessary or proper
corporate and shareholder action.
(b) When duly executed and delivered by each of Transferor and
Collection Agent, this Waiver shall constitute a legal, valid and binding
obligation of such Person enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws affecting the rights of creditors
generally and general equitable principles (whether considered in a proceeding
at law or in equity).
(c) The execution, delivery and performance by Transferor and
Collection Agent of this Waiver will not contravene any provision of applicable
law, rule or regulation or of the articles of incorporation or bylaws of
Transferor or Collection Agent or constitute a default under any agreement or
any judgment, injunction, order, writ, decree or other instrument binding upon
Transferor or Collection Agent or result in the creation or imposition of any
Adverse Claim on the assets of Transferor or Collection Agent (except as
contemplated by Section 2.09 of the Transfer Agreement).
(d) The execution, delivery and performance of by Transferor
and Collection Agent of this Waiver does not require any action by or in respect
of, or filing with, any Official Body or official thereof, other than has been
obtained or made and other than as will be made on Form 8-K with the Securities
and Exchange Commission, which Form 8-K will disclose the transactions
contemplated by this Waiver.
(e) Subject to Section 1 above, all of the representations and
warranties of Transferor and Collection Agent contained in this Waiver, the
Transfer Agreement and the other Transaction Documents are true and correct in
all material respects on and as of the date hereof, as if then made (other than
representations and warranties which expressly speak as of a different date,
which are true and correct in all material respects as of that date).
(f) Subject to Section 1 above, all of the representations and
warranties of the Sellers contained in the Receivables Purchase Agreement and
the other Transaction Documents are true and correct in all material respects on
and as of the date hereof, as if then made (other than representations and
warranties which expressly speak as of a different date, which are true and
correct in all material respects as of that date).
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(g) After giving effect to this Waiver, no Termination Event
has occurred and is continuing.
(h) Parent's press release dated as of March , 2005, attached
hereto as Annex A (such matters that are described therein collectively and all
matters reasonably related thereto are referred to herein as the
"Investigation") does not contain any untrue statement of a material facts and
does not omit to state any material facts, necessary to make the statements
concerning the Investigation not misleading in any material respect, in light of
the circumstances in which they were made, as of the date hereof.
SECTION 3. Waiver Fee. In consideration of the agreements of
the Consenting Parties contained in this Waiver, the Transferor and the
Collection Agent agree to pay to the GECC Committed Purchaser a waiver fee (the
"Waiver Fee") of $75,000.
SECTION 4. Conditions to Effectiveness. This Waiver shall
become effective as of March 17, 2005, when (a) the Administrative Agent shall
have received (i) counterparts of this Waiver that, when taken together, bear
the signatures of the Administrative Agent, the Transferor, the Collection Agent
and GECC Committed Purchaser and (ii) the Waiver Fee, (b) the representations
and warranties set forth in Section 2 hereof are true and correct and (c) all
fees and expenses required to be paid or reimbursed by the Transferor or the
Collection Agent pursuant hereto or to the Transfer Agreement or otherwise,
including all invoiced fees and expenses of counsel to the Administrative Agent
shall have been paid or reimbursed, as applicable.
SECTION 5. Transfer Agreement. Except as specifically waived
hereby, the Transfer Agreement shall continue in full force and effect in
accordance with the provisions thereof as in existence on the date hereof.
Without limiting the generality of the foregoing, the waivers and agreement
contemplated under Section 1(a), (b) and (c) above shall not affect the
obligations of the Transferor or the Collection to deliver other certificates
required by the Transfer Agreement except as specifically set forth in Section
1(a), (b) or (c). This Waiver shall be limited solely to the matters expressly
set forth herein and shall not (i) constitute an amendment or waiver of any term
or condition of the Transfer Agreement or any other Transaction Documents,
except as expressly provided herein, (ii) prejudice any right or rights which
the Administrative Agent, any Committed Purchaser or any Funding Agent may now
have or may have in the future under or in connection with the Transfer
Agreement or any other Transaction Document, (iii) require the Administrative
Agent, any Committed Purchaser or any Funding Agent to agree to a similar waiver
on a future occasion or (iv) create any rights herein or under any Transaction
Document to another Person or other beneficiary or otherwise.
SECTION 6. APPLICABLE LAW. THIS WAIVER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 7. Counterparts. This Waiver may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement. Delivery of an executed
signature page to this Waiver by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Waiver.
SECTION 8. Expenses. The Transferor and the Parent agree to
reimburse the Administrative Agent, the CP Conduit Purchasers and the Committed
Purchasers for their out-of-pocket expenses in connection with this Waiver,
including the fees, charges and disbursements of Sidley Xxxxxx Xxxxx & Xxxx LLP,
counsel for the Administrative Agent.
SECTION 9. Headings. The headings of this Waiver are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be duly executed by their respective authorized officers as of the day and
year first written above.
CARCORP, INC., as Transferor
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX PRODUCTS CO.,
individually, as Collection Agent and as
Guarantor
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
GENERAL ELECTRIC CAPITAL CORPORATION,
as GECC Funding Agent and GECC Committed Purchaser
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
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