CREDIT AGREEMENT DATED
AS OF DECEMBER 5, 1996
WAIVER
WAIVER, dated as of October 27, 1997 (this "Waiver"), under
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 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 September 27, 1997; provided that such waiver is effective only if the
Interest Coverage Ratio is at least 1.70 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
September 27, 1997; provided that such waiver is effective only if the Leverage
Ratio is no greater than 3.30 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 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
2
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 waived 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:
(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 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.
(d) Acknowledgement and Consent. 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 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 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.
3
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: Chief Financial Officer and
Executive Vice President
XXXXXXX & XXXXXX CORPORATION
By /s/ J. Xxxxxxx Xxxxx
-----------------------
Name: J. Xxxxxxx Xxxxx
Title: Chief Financial Officer and
Executive Vice President
THE CHASE MANHATTAN BANK,
as Administrative Agent and as
a Lender
By /s/ Xxxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
4
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxxx X. Pervicia
-----------------------
Name: Xxxxxx X. Pervicia
Title: Vice President
NATIONSBANK, N.A.
by /s/ X. Xxxxxx Xxxxx
-----------------------
Name: X. Xxxxxx Xxxxx
Title: Senior Vice President
BANK OF IRELAND - GRAND CAYMAN BRANCH
By______________________________________
Name:
Title:
THE BANK OF NEW YORK
By /s/ Xxxx Xxxxxx
-----------------------
Name: Xxxx Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ W. E. Zarrett
----------------------
Name: W. E. Zarrett
Title: Senior Relationship Manager
5
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By ________________________________
Name:
Title:
BRANCH BANKING AND TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxxx, III
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx, FVP
Title: Head of Corporate Banking
CIBC INC.
By /s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
Title: Director
COMERICA BANK
By __________________________________
Name:
Title:
6
COMMERCIAL LOAN FUNDING TRUST I
By /s/ Xxxxxxxxxxx Xxxx
_________________________________
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By __________________________________
Name:
Title:
By__________________________________
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH AND
CREDIT LYONNAIS ATLANTA AGENCY
By __________________________________
Name:
Title:
By __________________________________
Name:
Title:
CREDITANSTALT CORPORATE FINANCE, INC.
By /s/ Xxxxx Xxxxx
------------------------
Name: W. Xxxxx Xxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
7
DRESDNER BANK, A.G. NEW YORK AND
GRAND CAYMAN BRANCHES
By /s/ Xxxxxxx Xxxxx
------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
By /s/ Xxxxxxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Assistant Treasurer
FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By /s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
FUJI BANK
By /s/ Xxxxx Xxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
8
THE LONG-TERM CREDIT BANK OF JAPAN
LTD., NEW YORK BRANCH
By /s/ Xxxxxxx Xxxxxx
------------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
THE ROYAL BANK OF SCOTLAND, PLC
By __________________________________
Name:
Title:
SOCIETE GENERALE
By /s/ Xxxxx Xxxxx
------------------------
Name: Xxxxx Xxxxx
Title: Vice President and Manager
SUMITOMO BANK, LIMITED
By _______________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD.
By /s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
9
SUNTRUST BANK, ATLANTA
By /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
By /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Banking Officer
THE TORONTO-DOMINION (NEW YORK), INC.
By /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ALLIED SIGNAL INC.
By __________________________________
Name:
Title:
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 October 27, 1997 (the "Waiver") under 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: October 27, 1997
XXXXXXX & XXXXXX PRODUCTS CO.
By: __________________________________
Name:
Title:
XXXXXXX & XXXXXX CANADA INC.
By:__________________________________
Name:
Title:
XXXXXXX & XXXXXX CORPORATION
By:__________________________________
Name:
Title:
PACJ, INC.
By: __________________________________
Name:
Title:
2
THE AKRO CORPORATION
By:_________________________
Name:
Title:
DURA CONVERTIBLE SYSTEMS, INC.
By:_________________________
Name:
Title:
IMPERIAL WALLCOVERINGS, INC.
By:_________________________
Name:
Title:
MARKETING SERVICE, INC.
By:_________________________
Name:
Title:
GREFAB, INC.
By:_________________________
Name:
Title:
WICKES ASSET MANAGEMENT, INC.
By:_________________________
Name:
Title:
3
XXXXXXX & XXXXXX CORPORATION
By:_________________________
Name:
Title:
WICKES MANUFACTURING COMPANY
By:_________________________
Name:
Title:
WICKES REALTY, INC.
By:_________________________
Name:
Title:
AMCO CONVERTIBLE FABRICS, INC.
By:_________________________
Name:
Title:
MANCHESTER PLASTICS, INC.
By:_________________________
Name:
Title:
XXXXXX PLASTICS, INC.
By:_________________________
Name:
Title:
4
ACK-TI-LINING, INC.
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX PROPERTIES, INC.
By:_________________________
Name:
Title:
