Exhibit 4.13
AMENDED AND RESTATED
CREDIT AGREEMENT DATED
AS OF JUNE 3, 1996
WAIVER
WAIVER, dated as of March 27, 1998 (this "Waiver"), under 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 waive certain covenants in the Credit Agreement as set
forth herein; and
WHEREAS, the Lenders are willing 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. Waiver of Section 6.14 (Interest Coverage Ratio).
Section 6.14 of the Credit Agreement is hereby waived for the fiscal quarter
ending March 28, 1998; provided that such waiver is effective only if the
Interest Coverage Ratio is at least 1.75 to 1.00 for such fiscal quarter.
SECTION 3. Waiver of Section 6.16 (Leverage Ratio). Section
6.16 of the Credit Agreement is hereby waived for the fiscal quarter ending
March 28, 1998; provided that such waiver is effective only if the Leverage
Ratio is no greater than 2.50 to 1.00 for such fiscal quarter.
SECTION 4. Representations and Warranties. The parties hereto
hereby represent and warrant to the Administrative Agent and each Lender that
after giving effect to
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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 5. 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:
(c) 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.
(d) 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.
(e) 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 and the transactions
contemplated hereby 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.
(f) Acknowledgement and Consent. 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 and Consent, substantially in the form of
Exhibit A hereto.
SECTION 6. Continuing Effect of Credit Agreement. This 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 7. 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.
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SECTION 8. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
SECTION 9. 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: 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
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THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By _______________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Managing Agent and a Lender
By
Name:
Title:
NATIONSBANK, N.A., as Managing Agent and a Lender
By
Name:
Title:
AERIES FINANCE LTD.
By
Name:
Title:
CERES FINANCE LTD.
By
Name:
Title:
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STRATA FUNDING LTD.
By
Name:
Title:
THE BANK OF NEW YORK
By
Name:
Title:
THE BANK OF NOVA SCOTIA
By: _______________________________________
Name:
Title:
BANK OF SCOTLAND
By
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By
Name:
Title:
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BRANCH BANKING AND TRUST COMPANY
By
Name:
Title:
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO (a unit of The
Chase Manhattan Bank)
By
Name:
Title:
CIBC INC.
By
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION EUROPEENNE
By
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I
By
Name:
Title:
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CREDIT LYONNAIS, NEW YORK BRANCH AND CREDIT LYONNAIS ATLANTA AGENCY
By
Name:
Title:
CREDITANSTALT CORPORATE FINANCE, INC.
By
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company
its Investment Manager
By
Name:
Title:
CRESTAR BANK
By
Name:
Title:
CYPRESS TREE INVESTMENT PARTNERS I
By
Name:
Title:
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DRESDNER BANK, A.G.
By
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By
Name:
Title:
FUJI BANK, LIMITED
By
Name:
Title:
INDOSUEZ CAPITAL FUNDING II LTD.
By: Indosuez Capital, as Portfolio Advisor
By
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.
By
Name:
Title:
8
THE LONG-TERM CREDIT BANK OF JAPAN LTD., NEW YORK BRANCH
By
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.
By
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By
Name:
Title:
PARIBAS CAPITAL FUNDING LLC
By
Name:
Title:
SENIOR HIGH INCOME PORTFOLIO, INC.
By
Name:
Title:
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THE MITSUBISHI TRUST AND BANKING CORPORATION
By
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By
Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By
Name:
Title:
SOCIETE GENERALE
By
Name:
Title:
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SUNTRUST BANK, ATLANTA
By
Name:
Title:
By
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD.
By
Name:
Title:
THE TORONTO-DOMINION BANK
By
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By
Name:
Title:
THE TRAVELERS INSURANCE COMPANY
By
Name:
Title:
00
XXXXXX XXXXXX XXXXXXXX XXXX XX XXXXXX
By
Name:
Title:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By
Name:
Title:
XXXXX FARGO BANK
By
Name:
Title:
THE YASUDA TRUST & BANKING CO., LTD.
By
Name:
Title:
NATEXIS BANQUE BFCE
By:
Name:
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as Investment Advisor
By:
Name:
Title:
ERSTE BANK
By:
Name:
Title:
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EXHIBIT A TO
WAIVER
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned corporations hereby:
(a) acknowledges and consents to the execution, delivery and
performance of the Waiver, dated as of March 27, 1998 (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: March 27, 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
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
XXXXXXX & XXXXXX INTERNATIONAL CORPORATION
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Treasurer
WICKES MANUFACTURING COMPANY
By /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President
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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 and Chief Financial Officer
XXXXXXX & XXXXXX PLASTICS, INC.
By /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
XXXXXX PLASTICS, INC.
By /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
XXXXXXX & XXXXXX PROPERTIES, INC.
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Secretary and Treasurer
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