EXHIBIT 4.23
WAIVER
TO
AMENDED AND RESTATED CREDIT AGREEMENT
This WAIVER to AMENDED AND RESTATED CREDIT AGREEMENT ("Waiver") is made
as of March 23, 2000 by and among Xxxxxxxxx Xxxxx Corporation (the
"Borrower"), the financial institutions (the "Lenders") party to the "Credit
Agreement" (defined below), and Bank One, NA, having its principal office in
Chicago, Illinois, formerly known as The First National Bank of Chicago, as
Agent. Defined terms used herein and not otherwise defined herein shall have
the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Amended and Restated Credit Agreement, dated as of July 2, 1997 (as
the same may be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders and the Agent
provide a limited waiver under the Credit Agreement with respect to the
financial covenant set forth in SECTION 6.4(B);
WHEREAS, the Lenders and the Agent are willing to provide such a limited
waiver on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Borrower, the Agent and the Lenders have entered into this Waiver.
1. LIMITED WAIVER. Effective as of the date hereof, as expressly limited
hereby and subject to the satisfaction of the condition precedent set forth
in SECTION 2 below, the Lenders and the Agent hereby agree to waive the
requirements, as existed immediately prior to the effectiveness of this
Waiver, of SECTION 6.4(B) of the Credit Agreement with respect to the fiscal
quarter ended February 26, 2000.
2. CONDITIONS OF EFFECTIVENESS. This Waiver shall become effective and
be deemed effective as of the date hereof, if, and only if, the Agent shall
have received four (4) duly executed originals of this Waiver from the
Borrower and the Lenders.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
represents and warrants as follows:
(a) The Credit Agreement as previously executed constitutes the
legal, valid and binding obligation of the Borrower and is enforceable
against the Borrower in accordance with its terms.
(b) Upon the effectiveness of this Waiver, the Borrower hereby (i)
represents that no Default or Unmatured Default exists, (ii) reaffirms all
covenants, representations and warranties made in the Credit Agreement, and
(iii) agrees that all such covenants, representations and warranties shall be
deemed to have been remade as of the effective date of this Waiver.
4. EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of SECTION 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement, as amended previously and as modified by
waiver hereby.
(b) Except as specifically modified by waiver above, the Credit
Agreement and all 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.
(c) The execution, delivery and effectiveness of this Waiver shall
neither, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lenders or the Agent, nor constitute a waiver
of any provision of the Credit Agreement or any other documents, instruments
and agreements executed and/or delivered in connection therewith.
5. COSTS AND EXPENSES. The Borrower agrees to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses
charged to the Agent) incurred by the Agent and the Lenders in connection
with the preparation, arrangement, execution and enforcement of this Waiver.
6. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
7. HEADINGS. Section headings in this Waiver are included herein for
convenience of reference only and shall not constitute a part of this Waiver
for any other purpose.
8. COUNTERPARTS. This Waiver may be executed by one or more of the
parties to the Waiver on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Waiver. In the event an ambiguity or
question of intent or interpretation arises, this Waiver shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Waiver.
IN WITNESS WHEREOF, this Waiver has been duly executed as of the day
and year first above written.
XXXXXXXXX XXXXX CORPORATION
By: /s/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Chief
Financial Officer
BANK ONE, NA, HAVING ITS PRINCIPAL OFFICE IN
CHICAGO, ILLINOIS, formerly known as The First
National Bank of Chicago
By: /s/ XXXXX XXXXXX
------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
FLEET BUSINESS CREDIT CORPORATION,
formerly known as Sanwa Business
Credit Corporation
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
