WAIVER
WAIVER, dated as of June 28, 1997 (this "Waiver"), to 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 agree
to waive certain provisions of Sections 6.08(i) and 6.16 of the Credit
Agreement; and
WHEREAS, the Lenders are willing to agree to waive certain provisions
of Sections 6.08(i) and 6.16 of the Credit Agreement, but only on the terms and
subject to the conditions set forth in this Waiver;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is 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. Waiver. Compliance with the provisions of:
(a) Section 6.08(i) of the Credit Agreement is hereby waived to permit
the sale of the Air Restraint and Technical Products Division of JPS Automotive
L.P. and the Borg Textile Division of Xxxxxxx & Xxxxxx Canada, Inc. and to
exclude such sales from the calculation of the maximum amount of assets that may
be sold pursuant to such section; provided that the Net Proceeds of such sale
are applied in accordance with Section 2.12(c) of the Credit Agreement; and
(b) Section 6.16 of the Credit Agreement is hereby waived for the
second fiscal quarter of 1997 of Holdings; provided that the Leverage Ratio is
not in excess of 2.75 to 1.00.
SECTION 3. 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 Waiver 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 Waiver and (iii) the Credit Agreement as amended by
this Waiver.
SECTION 4. Conditions Precedent. This Waiver shall become effective as
of the date hereof (the "Waiver Effective Date") when each of the conditions
precedent set forth below shall have been fulfilled:
(a) Waiver. The Administrative Agent shall have received this Waiver,
executed and delivered by a duly authorized officer of each of the Borrower,
Holdings and the Required Lenders.
(b) No Default or Event of Default. On and as of the Waiver Effective
Date and after giving effect to this Waiver and the transactions contemplated
hereby, no Default or Event of Default shall have occurred and be continuing.
(c) Representations and Warranties. The representations and warranties
made by the Borrower in the Credit Agreement and herein after giving effect to
this Waiver shall be true and correct in all material respects on and as of the
Waiver 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.
(d) Acknowledgement, Consent and Waiver. 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, Consent and Waiver, substantially in the form of Exhibit A
hereto.
SECTION 5. No Other Waivers. Except as expressly waived hereby, the
Credit Agreement shall remain in full force and effect in accordance with its
terms, without any waiver, amendment or modification of any provision.
SECTION 6. 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 Waiver and any other documents prepared in connection herewith,
and consummation of 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 Waiver and any other such documents.
SECTION 7. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This 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 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:
Title:
XXXXXXX & XXXXXX CORPORATION
By /s/ J. Xxxxxxx Xxxxx
________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as
a Lender
By /s/ Xxxxxxxx Xxxxxxx
________________________________
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Xxxxx X. Xxxxxx
________________________________
Name: Xxxxx X. Xxxxxx
Title: Managing Director
NATIONSBANK, N.A.
By _____________________________
Name:
Title:
AERIES FINANCE LTD.
By _____________________________
Name:
Title:
BANKBOSTON, N.A.
By _____________________________
Name:
Title:
BANK OF IRELAND - GRAND CAYMAN
BRANCH
By /s/ Xxxx Xxxxxx
_____________________________
Name: Xxxx X. Xxxxxx
Title: A.V.P.
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/ W.E. Zarrett
________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Relationship
Manager
BANK OF SCOTLAND
By ____________________________
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By /s/ Xxxxxxxxx X. Xxxxx
____________________________
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
BANQUE FRANGAISE DU COMMERCE
EXTIRIEUR
By _____________________________
Name:
Title:
BANQUE PARIBAS
By ____________________________
Name:
Title:
BRANCH BANKING AND TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxxxxxx
_______________________________
Name: Xxxxxxxx X. Xxxxxxxx III
Title: Vice President
CAISSE NATIONALE DE CRIDIT
AGRICOLE
By /s/ X. Xxxxx
_____________________________
Name: Xxxxx Xxxxx, AVP
Title: Head of Corporate Banking
Chicago
CERES FINANCE LTD.
By _____________________________
Name:
Title:
CIBC INC.
By _____________________________
Name:
Title:
COMERICA BANK
By /s/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Account Officer
COMPAGNIE FINANCIORE DE CIC ET DE
L'UNION EUROPIENNE
By ____________________________
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By /s/ X. Xxxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By /s/ W.P.C. Kodde
_____________________________
Name: W. Xxxxxx X. Xxxxx
Title: Vice President
ALLIED SIGNAL INC.
By _____________________________
Name:
Title:
CREDITANSTALT CORPORATE FINANCE,
INC.
By /s/ Xxxxx Xxxxx
_____________________________
Name: W. Xxxxx Xxxxx
Title: Vice President
By /s/ Xxxxx Xxxx
____________________________
Name: Xxxxx Xxxx
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
AND CREDIT LYONNAIS ATLANTA
AGENCY
By _____________________________
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management
Company its
Investment Manager
By _____________________________
Name:
Title:
DRESDNER BANK, A.G. NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ X. Xxxxxxx
_____________________________
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
By /s/ Xxxx X. Xxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice
President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Xxxx X. XxXxxxxx
________________________________
Name: Xxxx X. XxXxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By /s/ Xxxxx Xxxxxxxx
________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
FUJI BANK, LIMITED
By _____________________________
Name:
Title:
GIROCREDIT BANK
By _____________________________
Name:
Title:
INDOSUEZ CAPITAL FUNDING II LTD.
By: Indosuez Capital, as
Portfolio Advisor
By _____________________________
Name:
Title:
INDUSTRIAL BANK OF JAPAN, LTD.
By _____________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By /s/ Xxxxxxxx Xxxxxxx
_______________________________
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
THE LONG-TERM CREDIT BANK OF
JAPAN LTD., NEW YORK BRANCH
By /s/ X. Xxxxxx
________________________________
Name: Xxxxxxx Xxxxxx
Title: Deputy General
Manager
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By _____________________________
Name:
Title:
MITSUBISHI TRUST AND BANKING
CORPORATION
By _____________________________
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By ____________________________
Name:
Title:
NATIONAL CITY BANK
By _____________________________
Name:
Title:
NBD BANK
By _____________________________
Name:
Title:
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By _____________________________
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By _____________________________
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By _____________________________
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN
PORTFOLIO (a unit of The Chase
Manhattan Bank)
By _____________________________
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By _____________________________
Name:
Title:
RESTRUCTURED OBLIGATIONS BACKED
BY SENIOR ASSETS B.V.
By: Chancellor LGT Senior
Secured Management, Inc.,
as Portfolio Advisor
By _____________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND, PLC
By /s/ Xxxxx Xxxxxx
_____________________________
Name: Xxxxx Xxxxxx
Title: Vice President
SAKURA BANK, LIMITED
By ____________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and
Research, as
Investment Advisor
By _____________________________
Name:
Title:
SOCIETE GENERALE
By /s/ Xxxxxxx X. Xxxxx
________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
STRATA FUNDING LTD.
By _____________________________
Name:
Title:
SUMITOMO BANK, LIMITED
By /s/ Xxxxxxxx Xxxxxxxxx
________________________________
Name: Xxxxxxxx Xxxxxxxxx
Title: Joint General
Manager
THE SUMITOMO TRUST & BANKING
CO., LTD.
By /s/ Xxxxx Xxxxxxxx
_______________________________
Name: Xxxxx Xxxxxxxx
Title: Deputy General
Manager
SUNTRUST BANK, ATLANTA
By /s/ Xxxxxxx X. Xxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Banking Officer
By /s/ X. X. Xxxx
____________________________
Name: Xxxxxxx X. Xxxx
Title: V.P.
THE TORONTO-DOMINION (NEW YORK),
INC.
By /s/ Xxxxxx X. Xxxxxx
____________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By ____________________________
Name:
Title:
UNITED STATES NATIONAL BANK OF
OREGON
By ____________________________
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/ X. Xxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice Pres.-
Portfolio Mgr.
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:
THE YASUDA TRUST & BANKING CO.,
LTD.
By ____________________________
Name:
Title:
EXHIBIT A TO
WAIVER
ACKNOWLEDGEMENT, CONSENT AND WAIVER
Each of the undersigned corporations hereby:
(a) acknowledges and consents to the execution, delivery and
performance of the Waiver, dated as of June 28, 1997 (the "Waiver") to 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: June 28, 1997
XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ J. Xxxxxxx Xxxxx
___________________________
Name:
Title:
XXXXXXX & XXXXXX CANADA INC.
By: /s/ J. Xxxxxxx Xxxxx
___________________________
Name:
Title:
XXXXXXX & XXXXXX CORPORATION
By: /s/ J. Xxxxxxx Xxxxx
__________________________
Name:
Title:
PACJ, INC.
By: /s/ J. Xxxxxxx Xxxxx
__________________________
Name:
Title:
THE AKRO CORPORATION
By: /s/ J. Xxxxxxx Xxxxx
___________________________
Name:
Title:
DURA CONVERTIBLE SYSTEMS, INC.
By: /s/ J. Xxxxxxx Xxxxx
___________________________
Name:
Title:
IMPERIAL WALLCOVERINGS, INC.
By: /s/ J. Xxxxxxx Xxxxx
__________________________
Name:
Title:
MARKETING SERVICE, INC.
By: /s/ J. Xxxxxxx Xxxxx
________________________
Name:
Title:
GREFAB, INC.
By: /s/ J. Xxxxxxx Xxxxx
________________________
Name:
Title:
WICKES ASSET
MANAGEMENT, INC.
By: /s/ J. Xxxxxxx Xxxxx
_________________________
Name:
Title:
XXXXXXX & XXXXXX INTERNATIONAL
CORPORATION
By: /s/ J. Xxxxxxx Xxxxx
_________________________
Name:
Title:
WICKES MANUFACTURING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
_________________________
Name:
Title:
WICKES REALTY, INC.
By: /s/ J. Xxxxxxx Xxxxx
_________________________
Name:
Title:
XXXXXXX & XXXXXX FLOOR
COVERINGS, INC.
By:
_________________________
Name:
Title:
AMCO CONVERTIBLE FABRICS, INC.
By: /s/ J. Xxxxxxx Xxxxx
________________________
Name:
Title:
MANCHESTER PLASTICS, INC.
By: /s/ J. Xxxxxxx Xxxxx
_________________________
Name:
Title:
XXXXXX PLASTICS, INC.
By: /s/ J. Xxxxxxx Xxxxx
_________________________
Name:
Title:
XXXXXXX & XXXXXX PROPERTIES,
INC.
(formerly XXXXXXX & XXXXXX
FLOOR COVERINGS GROUP, INC.)
By: /s/ Xxx Xxxxx
________________________
Name:
Title:
ACK-TI-LINING, INC.
By: _________________________
Name:
Title: