Exhibit 4.12
CREDIT AGREEMENT DATED
AS OF DECEMBER 5, 1996
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of January 12, 1998 (this
"Amendment and Waiver"), under the Credit Agreement, dated as of December 5,
1996 (as amended prior to the date hereof and as further amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among XXXXXXX
& XXXXXX PRODUCTS CO., a Delaware corporation (the "Borrower"), XXXXXXX & XXXXXX
CORPORATION, a Delaware corporation ("Holdings"), the financial institutions
parties thereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New York banking
corporation, as agent to the lenders thereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower and Holdings have requested the Lenders
to amend and to waive certain covenants in the Credit Agreement as set forth
herein; and
WHEREAS, the Lenders are willing to amend and to waive such
covenants in the Credit Agreement on and subject to the terms and conditions
thereof;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein,
terms defined in the Credit Agreement are used herein as therein defined.
SECTION 2. Amendment of Section 6.01 (Indebtedness). (a)
Subsection 6.01(d) of the Credit Agreement is hereby amended by deleting from
clause (iv) thereof the amount "$200,000,000" and substituting therefor the
amount "$225,000,000".
(b) Subsection 6.01 of the Credit Agreement is hereby amended by
deleting from clause (r) thereof the amount "$200,000,000" and substituting
therefor the amount "$225,000,000".
SECTION 3. Amendment of Section 6.07 (Investments, Loans and
Advances). Subsection 6.07 of the Credit Agreement is hereby amended by deleting
from clause (l) thereof the amount "$200,000,000" and substituting therefor the
amount "$225,000,000".
SECTION 4. Waiver of Section 6.14 (Interest Coverage Ratio).
Section 6.14 of the Credit Agreement is hereby waived for the fiscal quarter
ending December 27, 1997; provided that such waiver is effective only if the
Interest Coverage Ratio is at least 1.70 to 1.00 for such fiscal quarter.
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SECTION 5. Representations and Warranties. The parties hereto
hereby represent and warrant to the Administrative Agent and each Lender that
after giving effect to the waivers contained herein, each party hereto hereby
confirms, reaffirms and restates the representations and warranties set forth in
Article III of the Credit Agreement as if made on and as of the Effective Date,
except as they may specifically relate to an earlier date; provided that such
representations and warranties shall be and hereby are amended so that all
references to the Agreement therein shall be deemed a reference to (i) the
Credit Agreement, (ii) this Amendment and Waiver and (iii) the Credit Agreement
as amended and waived by this Amendment and Waiver.
SECTION 6. Conditions Precedent. This Amendment and Waiver
shall become effective as of the date hereof (the "Effective Date") when each of
the conditions precedent set forth below shall have been fulfilled:
(c) Amendment and Waiver. The Administrative Agent shall have
received this Amendment and Waiver, executed and delivered by a duly authorized
officer of each of the Borrower, Holdings and the Required Lenders.
(d) No Default or Event of Default. On and as of the Effective
Date and after giving effect to this Amendment and Waiver and the transactions
contemplated hereby, no Default or Event of Default shall have occurred and be
continuing.
(e) Representations and Warranties. The representations and
warranties made by the Borrower in the Credit Agreement and herein after giving
effect to this Amendment and Waiver and the transactions contemplated hereby
shall be true and correct in all material respects on and as of the Effective
Date as if made on such date, except where such representations and warranties
relate to an earlier date in which case such representations and warranties
shall be true and correct as of such earlier date.
(f) Acknowledgement and Consent. The Administrative Agent
shall have received from each of Holdings, the Borrower and the other Loan
Parties with respect to each Loan Document to which it is a party a duly
executed Acknowledgment and Consent, substantially in the form of Exhibit A
hereto.
SECTION 7. Continuing Effect of Credit Agreement. This
Amendment and Waiver shall not constitute an amendment or waiver of any
provision of the Credit Agreement not expressly referred to herein and shall not
be construed as an amendment, waiver or consent to any action on the part of any
party hereto that would require an amendment, waiver or consent of the
Administrative Agent or the Lenders except as expressly stated herein. Except as
expressly waived hereby, the provisions of the Credit Agreement are and shall
remain in full force and effect.
SECTION 8. Expenses. The Borrower agrees to pay or reimburse
the Administrative Agent for all of its reasonable out-of-pocket costs and
expenses incurred in connection with (a) the negotiation, preparation, execution
and delivery of this Amendment and Waiver and any other documents prepared in
connection herewith, and consummation of
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the transactions contemplated hereby and thereby, including the fees and
expenses of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the Administrative Agent, and
(b) the enforcement or preservation of any rights under this Amendment and
Waiver and any other such documents.
SECTION 9. GOVERNING LAW. THIS AMENDMENT AND WAIVER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
SECTION 10. Counterparts. This Amendment and Waiver may be
executed in any number of counterparts by the parties hereto, each of which
counterparts when so executed shall be an original, but all counterparts taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be duly executed and delivered by their respective duly
authorized officers as of the day and year first above written.
XXXXXXX & XXXXXX PRODUCTS CO.
By /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
XXXXXXX & XXXXXX CORPORATION
By /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
NATIONSBANK, N.A.
By /s/ X. Xxxxxx Xxxxx
Name: X. Xxxxxx Xxxxx
Title: Senior Vice President
BANK OF IRELAND - GRAND CAYMAN BRANCH
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
THE BANK OF NEW YORK
By /s/ Xxx Xxxxx Xxxxxx
Name: Xxx Xxxxx Xxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Relationship Manager
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BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By /s/ Xxxxxx Xxxxxxxx
Name: X. Xxxxxxxx
Title: Vice President
BRANCH BANKING AND TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxxxxxx III
Name: Xxxxxxxx X. Xxxxxxxx III
Title: Vice President
CIBC INC.
By /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Executive Director, CIBC Xxxxxxxxxxx Corp., as agent
COMERICA BANK
By /s Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
COMMERCIAL LOAN FUNDING TRUST I
By: Xxxxxx Commercial Paper Inc., not in its individual capacity but
solely as administrative agent
By /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
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COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: F.V.P., Head of Corporate Banking, Chicago
By /s/ Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: First Vice President
CREDIT LYONNAIS, NEW YORK BRANCH AND CREDIT LYONNAIS ATLANTA AGENCY
By
Name:
Title:
By
Name:
Title:
CREDITANSTALT CORPORATE FINANCE, INC.
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
By /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Title: Senior Associate
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DRESDNER BANK, A.G. NEW YORK AND GRAND CAYMAN BRANCHES
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxx X. XxXxxxxx
Name: Xxxx X. XxXxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Xxxxx Silendo
Name: Xxxxx Silendo
Title: Vice PResident
FUJI BANK
By
Name:
Title:
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THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED, NEW YORK BRANCH
By /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
THE ROYAL BANK OF SCOTLAND, PLC
By
Name:
Title:
SOCIETE GENERALE
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President, Regional Operations Manager
SUMITOMO BANK, LIMITED
By /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
THE SUMITOMO TRUST & BANKING CO., LTD.
By /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Senior Vice President
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SUNTRUST BANK, ATLANTA
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Banking Officer
By /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
THE TORONTO-DOMINION (NEW YORK), INC.
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A. formerly known as
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK
By
Name:
Title:
ALLIED SIGNAL INC.
By
Name:
Title:
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EXHIBIT A TO
AMENDMENT AND WAIVER
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned corporations hereby:
(a) acknowledges and consents to the execution, delivery and
performance of the Amendment and Waiver, dated as of January 12, 1998 (the
"Amendment and Waiver") under the Credit Agreement dated as of December 5, 1996
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among Xxxxxxx & Xxxxxx Products Co. (the
"Borrower"), Xxxxxxx & Xxxxxx Corporation ("Holdings"), the several banks and
other institutions from time to time parties to the Credit Agreement (the
"Lenders") and The Chase Manhattan Bank, as administrative agent to the lenders
thereunder (in such capacity, the "Administrative Agent"); and
(b) agrees that such execution, delivery and performance shall not in
any way affect such corporation's obligations under any Loan Document (as
defined in the Credit Agreement) to which such corporation is a party, which
obligations on the date hereof remain absolute and unconditional and are not
subject to any defense, set-off or counterclaim.
Dated: January 12, 1998
XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
XXXXXXX & XXXXXX CANADA INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President and Chief Financial Officer
XXXXXXX & XXXXXX CORPORATION
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
PACJ, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
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THE AKRO CORPORATION
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
DURA CONVERTIBLE SYSTEMS, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
IMPERIAL WALLCOVERINGS, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
MARKETING SERVICE, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President
GREFAB, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President
WICKES ASSET
MANAGEMENT, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President
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XXXXXXX & XXXXXX INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Treasurer
WICKES MANUFACTURING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Assistant Treasurer
WICKES REALTY, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President
AMCO CONVERTIBLE FABRICS, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President
XXXXXXX & XXXXXX PLASTICS, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President
XXXXXX PLASTICS, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
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XXXXXXX & XXXXXX PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Secretary and Treasurer
XXXXXXX & XXXXXX CARPET & ACOUSTICS (MI), INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
XXXXXXX & XXXXXX CARPET & ACOUSTICS (TN), INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial
Officer
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