EXHIBIT 4.24
WAIVER
TO
CREDIT AGREEMENT
This WAIVER to CREDIT AGREEMENT ("Waiver") is made as of March 23, 2000
by and among Xxxxxxxxx Xxxxx (Canada) Corporation (the "Borrower") and Bank
One Canada (the "Lender"). Defined terms used herein and not otherwise
defined herein shall have the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower and the Lender are parties to that certain Credit
Agreement, dated as of July 30, 1999 (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 Lender provide a limited
waiver under the Credit Agreement with respect to the covenant set forth in
SECTION 8.3 that references SECTION 6.4(B) of the Credit Agreement, dated as
of July 2, 1997, among Xxxxxxxxx Xxxxx Corporation, the institutions from
time to time party thereto, and Bank One, NA, as Agent (the "US Credit
Agreement");
WHEREAS, the Lender is 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 and the Lender 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 Lender hereby agrees to waive the requirements, as
existed immediately prior to the effectiveness of this Waiver, of SECTION 8.3
of the Credit Agreement with respect to the fiscal quarter ended February 26,
2000; PROVIDED, HOWEVER, that such waiver shall only apply to SECTION 8.3 as
it references SECTION 6.4(B) of the US Credit Agreement.
2. CONDITIONS OF EFFECTIVENESS. This Waiver shall become effective and
be deemed effective as of the date hereof, if, and only if, the Lender shall
have received a duly executed original of this Waiver from the Borrower.
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 Lender, 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 Lender) incurred by the Lender in connection with the
preparation, arrangement, execution and enforcement of this Waiver.
6. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY AND INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO AND THE LAWS OF
CANADA APPLICABLE THEREIN.
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 (CANADA) CORPORATION
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President & Chief
Financial Officer
BANK ONE CANADA
By: /s/ XXXXXXX XXXXX
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
