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CONFORMED COPY
EXHIBIT 4.1
AGREEMENT AND WAIVER TO NOTE PURCHASE AGREEMENT
This Agreement and Limited Waiver to Note Purchase Agreement, dated
October 21, 1996 (this "WAIVER"), relates to that certain Note Purchase
Agreement, dated as of June 17, 1993, as amended to date (the "NOTE AGREEMENT"),
between Xxxxxx, Inc. (the"COMPANY") and each of the Noteholders listed on the
signature page hereto (each a "NOTEHOLDER"). Capitalized terms used herein, but
not expressly defined herein, shall have the meaning given to such terms in the
Note Agreement.
WHEREAS, the parties hereto desire to waive a certain Event of
Default of the Company with respect to the Note Agreement, in the respects, but
only in the respects, hereinafter set forth; and
WHEREAS, the parties hereto desire that to negotiate the terms of an
additional waiver agreement (the "Additional Waiver") which will provide that
certain Events of Default under Section 8.2 of the Note Agreement will be
waived and immediately upon consummation of the merger between the Company and
Xxxxxx-Xxxxxx Company (the "PURCHASER"), or a subsidiary formed by the
Purchaser to facilitate the merger, if permitted under the Note Agreement after
giving effect to this Waiver and such Additional Waiver (the "MERGER"), the
Purchaser and each Noteholder will amend the financial covenant in Section
8.2 of the Note Agreement and the Purchaser will unconditionally guarantee the
prompt payment and performance of all obligations of the Company under the Note
Agreement.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Waiver, and in considerations
of the agreements set forth herein the receipt and sufficiency of which is
hereby acknowledged, the Company and each Noteholder, severally but not
jointly, do hereby agree as follows:
Section 1. Waiver. The failure of the Company to comply with the
financial covenant set forth in Section 8.2 of the Note Agreement on or prior
to the date hereof which failure constitutes an Event of Default under the Note
Agreement (and which Event of Default prohibits the Company's reliance on
Section 8.19(b) of the Note Agreement to consummate the Merger) shall be deemed
to have been waived by each Noteholder solely for the period consisting of the
quarter ended August 31, 1996, which Event of Default has occurred solely as
a result of the Company's failure to maintain the Fixed Charge Coverage Ratio
set forth in Section 8.2 during such second quarter. The Company understands
and agrees that the waiver contained in this Waiver pertains only to the Event
of Default herein described and to the extent so described and not to any other
Default or Event of Default which may exist under the Note Agreement, or any
other matters arising in connection with the Note Agreement.
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Section 2. Consent Fee. The Company will pay each Noteholder by wire
transfer in immediately available funds the sum equal to .25% of the outstanding
principal amount of the balance owed such Noteholder under the Note Agreement on
the date of such wire transfer (the "CONSENT FEE") and such other amounts as
are required to be paid under the Note Agreement in connection with obtaining
this Waiver and the Additional Waiver.
Section 3. Additional Waiver. During the term of this Waiver, as
limited by Section 4 hereof, the parties hereto will negotiate in good faith to
enter into the Additional Waiver, which shall include a provision that the
Purchaser, upon consummation of the Merger, will unconditionally guarantee the
prompt payment and performance of all obligations of the Company under the Note
Agreement (as amended by the Additional Waiver) in form and substance
satisfactory to the Noteholder and in no event less beneficial to the
Noteholder than that given by the borrower to the lender under the Purchaser's
senior credit facility.
Section 4. Miscellaneous.
(a) Effective Time; Termination. This Waiver shall become effective
and binding upon the Company and the Noteholder upon the execution of each of
the parties hereto and the receipt by each Noteholder of the Consent Fee;
provided, however, this Waiver shall terminate immediately, and shall be deemed
null and void as of the date hereof with respect to the provisions of Sections 1
and 3, upon the earlier of (i) thirty (30) days from the date hereof or (ii) a
public announcement that the Merger will not be consummated.
(b) Notices. The Company hereby agrees, on behalf of each Noteholder,
to provide notice of this Waiver to each party required to be given notice by
such Noteholder under the Note Agreement or any other document entered into by
such Noteholder in connection with the Note Agreement (including without
limitation the Intercreditor Agreement dated June 17, 1993) (the "LOAN
DOCUMENTS").
(c) Confirmation. Except as expressly provided herein, none of the
provisions of the Note Agreement and the Loan Documents are amended, modified,
impaired or otherwise affected hereby, and the Note Agreement and all of the
Loan Documents are hereby confirmed in full force and effect.
(d) Governing Law. This Waiver shall be governed by and construed in
accordance with the laws of the State of New York.
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This Agreement and Waiver to Note Purchase Agreement has been
entered into as of the date first above written and may be executed in any
number of counterparts each of which shall constitute an original, but all
together only one agreement.
XXXXXX, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President, Finance
and Administration
NOTEHOLDERS:
SUNAMERICA LIFE INSURANCE COMPANY
f/k/a SUN LIFE INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxxx XxXxxxxxx
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Name: Xxxxx XxXxxxxxx
Title: Authorized Agent
EQUITABLE CAPITAL PRIVATE INCOME
AND EQUITY PARTNERSHIP II, L.P.
BY: EQUITABLE CAPITAL MANAGEMENT
CORPORATION
Its General Partner
By: /s/ U. Xxxxx X. Xxxxxxxx
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Name: U. Xxxxx X. Xxxxxxxx
Title: Investment Officer
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