Exhibit 4.6
AMENDED AND RESTATED
CREDIT AGREEMENT DATED
AS OF JUNE 3, 1996
WAIVER
WAIVER, dated as of June 28, 1997 (this "Waiver"), to the Amended and
Restated Credit Agreement, dated as of June 3, 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 CANADA INC., a Canadian
corporation (the "Canadian 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, the Canadian 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, the
Canadian 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 and the Canadian 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, the Canadian 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 and the Canadian Borrower agree 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 CANADA INC.
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, as Managing Agent and
a Lender
By Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
NATIONSBANK, N.A., as Managing Agent and a
Lender
By__________________________________
Name:
Title:
XXXXXXXXX XXXXXXXX LIFE INSURANCE
By__________________________________
Name:
Title:
ARAB BANKING CORPORATION
By__________________________________
Name:
Title:
AERIES FINANCE LTD.
By /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
CERES FINANCE LTD.
By /s/ X.X. Xxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
STRATA FUNDING LTD.
By /s/ X.X. Xxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
RESTRUCTURED OBLIGATIONS BACKED BY
SENIOR ASSETS B.V.
By: Chancellor LGT Senior Secured Management,
Inc., as Portfolio Advisor
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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 /s/ Xxxxx Xxxx Tat
----------------------------------
Name: Xxxxx Xxxx Tat
Title: Vice President
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By /s/ Xxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
BANQUE PARIBAS
By__________________________________
Name:
Title:
BRANCH BANKING AND TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxxxxxx III
----------------------------------
Name: Xxxxxxxx X. Xxxxxxxx III
Title: Vice President
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(a unit of The Chase Manhattan Bank)
By /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
CIBC INC.
By__________________________________
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPIENNE
By /s/ Xxxx Xxxxxxx /s/ Xxxxx X'Xxxxx
------------------------------------------
Name: Xxxx Xxxxxxx Xxxxx X'Xxxxx
Title: First Vice President Vice President
CONTINENTAL BANK
By__________________________________
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH AND
CREDIT LYONNAIS ATLANTA AGENCY
By ______________________________
Name:
Title:
CREDITANSTALT CORPORATE FINANCE, INC.
By /s/ W. Xxxxx Xxxxx
__________________________________
Name: W. Xxxxx Xxxxx
Title: Vice President
By /s/ Xxxxx Xxxx
----------------------------------
Name: Xxxxx Xxxx
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company
its Investment Manager
By /s/ Xxxxxx X. Xxxxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
CRESTAR BANK
By /s/ X. Xxxx Key
__________________________________
Name: X. Xxxx Key
Title: Vice President
DRESDNER BANK, A.G. NEW YORK AND GRAND
CAYMAN BRANCHE
By /s/ Xxxxxxxxxxx X. Xxxxxxx
__________________________________
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
By /s/ Xxxx X. Xxxxxxx
__________________________________
Name: Xxxx X. Xxxxxxx
Title: Assistant 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 /s/ Xxxx Xxxxxxx /s/ Xxxx Xxxxxx
__________________________________
Name: Xxxx Xxxxxxx Xxxx Xxxxxx
Title: Vice President Vice President
INDOSUEZ CAPITAL FUNDING II LTD.
By: Indosuez Capital, as Portfolio Advisor
By__________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.
By /s/ Takuya Honjo
__________________________________
Name: Takuya Honjo
Title: Senior Vice President
KEYPORT LIFE INSURANCE COMPANY
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 /s/ Xxxxxx Xxxxxxxx
__________________________________
Name: Xxxxxx Xxxxxxxx, CFA
Title: Authorized Signatory
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By /s/ Xxxxxx Xxxxxxxx
__________________________________
Name: Xxxxxx Xxxxxxxx, CFA
Title: Authorized Signatory
MIDLAND BANK, PLC
By__________________________________
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By /s/ Xxxxxx Xxxxxxxx
__________________________________
Name: Xxxxxx Xxxxxxxx, CFA
Title: Authorized Signatory
SENIOR HIGH INCOME PORTFOLIO,
INC., as successor in interest
to SENIOR HIGH INCOME PORTFOLIO
II, INC.
By /s/ Xxxxxx Xxxxxxxx
__________________________________
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
SENIOR HIGH INCOME PORTFOLIO,
INC., as successor in interest
to SENIOR STRATEGIC INCOME FUND,
INC.
By /s/ Xxxxxx Xxxxxxxx
__________________________________
Name: Xxxxxx Xxxxxxxx
Title: Authorized Signatory
THE MITSUBISHI TRUST AND BANKING CORPORATION
By__________________________________
Name:
Title:
NATIONAL CITY BANK
By__________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By__________________________________
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Investment Manager
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Investment Manager
THE NIPPON CREDIT BANK, LTD.
By__________________________________
Name:
Title:
THE SAKURA BANK, LIMITED
By__________________________________
Name:
Title:
SOCIETE GENERALE
By /s/ Xxxxxxx X. Xxxxx
__________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SOCIETY NATIONAL BANK
By__________________________________
Name:
Title:
SUMITOMO BANK, LIMITED
By__________________________________
Name:
Title:
SUNTRUST BANK, ATLANTA
By /s/ Xxxxx X. Xxxxxx
__________________________________
Name: Xxxxx X. Xxxxxx
Title: GVP
By /s/ X. X. Xxxx
__________________________________
Name: Xxxxxxx X. Xxxx
Title: V.P.
THE SUMITOMO TRUST & BANKING CO., LTD.
By /s/ Xxxxx Xxxxxxxx
__________________________________
Name: Xxxxx Xxxxxxxx
Title: Deputy General Manager
THE TORONTO-DOMINION BANK
By /s/ Xxxxxx X. Xxxxxx
__________________________________
Name: Xxxxxx X. Xxxxxx
Title: Mgr. Cr. Admin.
THE TRAVELERS INSURANCE COMPANY
By__________________________________
Name:
Title:
THE TRAVELERS INDEMNITY COMPANY
By__________________________________
Name:
Title:
UNITED STATES NATIONAL BANK OF OREGON
By /s/ Xxxxx Xxx Xxxx
__________________________________
Name: Xxxxx Xxx Xxxx
Title: Relationship Manager
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By__________________________________
Name:
Title:
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:
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By__________________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
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
Amended and Restated Credit Agreement dated as of June 3, 1996 (as the same may
be amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Xxxxxxx & Xxxxxx Canada Inc. (the "Canadian Borrower")
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/ Xxx 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:
