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Exhibit 10(x)
WAIVER
Dated as of September 30, 1996
THIS WAIVER ("Waiver") is entered into as of
September 30, 1996 by and among THE XXXXXX & SESSIONS CO., an Ohio corporation
(the "Borrower"), GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
("GE Capital"), as the sole "Lender" (as defined in the Loan Agreement referred
to below) and GE Capital as agent for the Lenders (in such capacity, the
"Agent").
PRELIMINARY STATEMENT
A. The Borrower, the Lender and the Agent are parties to that
certain Loan Agreement dated as of February 13, 1992, as amended and restated as
of July 14, 1995 (as the same has been and may be further amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Loan Agreement.
B. The Borrower has requested that GE Capital, as the Agent
and the sole Lender, waive the Borrower's compliance with the minimum EBITDA
covenant set forth in Section 7.3(f) of the Loan Agreement for the fiscal
quarter ending nearest September 30, 1996, and GE Capital, as such Agent and
sole Lender, has agreed to waive such compliance subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises set forth
above, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrower, the Lender and the Agent hereby
agree as follows:
SECTION 1. Waiver. The Borrower has failed to comply with
SECTION 7.3(f) of the Loan Agreement by reason of the Borrower's failure to meet
the minimum Consolidated EBITDA covenant set forth therein for the fiscal
quarter ending nearest September 30, 1996. Effective as of the date first above
written, subject to the satisfaction of the conditions precedent set forth in
SECTION 2 below, GE Capital, as the Agent and the sole Lender, hereby waives the
Borrower's compliance with such covenant for such period.
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SECTION 2. CONDITIONS PRECEDENT. This Waiver shall become
effective and be deemed effective as of the date first above written upon the
Agent's having received the following:
(a) four (4) copies of this Waiver duly executed by the
Borrower, the Lender and the Agent; and
(b) Reaffirmations of Guaranty and Security Agreement in
substantially the form of EXHIBIT A attached hereto, duly executed by
each of Xxxxxx Chimes and Youngstown Steel Door.
SECTION 3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE
BORROWER.
3.1 Except to the extent that any representation or warranty
expressly is made only with respect to an earlier date, upon the effectiveness
of this Waiver, the Borrower hereby reaffirms all covenants, representations and
warranties made by it in the Loan Agreement to the extent the same are not
modified hereby and agrees that all such covenants, representations and
warranties shall be deemed to have been re-made as of the effective date of this
Waiver.
3.2 The Borrower hereby represents and warrants that this
Waiver constitutes the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general principles of equity which may limit the availability of
equitable remedies.
SECTION 4. EFFECT ON THE LOAN AGREEMENT.
4.1 Except as specifically amended hereby, the Loan Agreement
and other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
4.2 The execution, delivery and effectiveness of this Waiver
shall not operate as a waiver of any right, power or remedy of any Lender or the
Agent under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision contained therein, except as specifically
set forth herein.
SECTION 5. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF
LAW PROVISIONS) AND DECISIONS OF THE STATE OF ILLINOIS.
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SECTION 6. 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 taken together shall constitute but
one and the same instrument.
SECTION 7. HEADINGS. Section headings in this Waiver are
included herein for convenience or reference only and shall not constitute a
part of this Waiver for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be executed by their respective officers thereto duly authorized as of the
date first written above.
THE XXXXXX & SESSIONS CO.
By:/s/ Xxxxx X. Xxxx
Title: Executive Vice President,
Treasurer and Chief Financial
Officer
GENERAL ELECTRIC CAPITAL CORPORATION, as
the Agent and as the sole Lender
By:/s/ Xxxxx Xxxxxx
Title: Duly Authorized Signatory
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