EXHIBIT 4.3
LIMITED WAIVER
This LIMITED WAIVER (this "WAIVER") is dated as of May 13, 1998 and
entered into by and among XXXX GRAPHIC SYSTEMS, INC., a corporation organized
under the laws of Delaware whose registered office is at 000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of America ("COMPANY"), XXXX GRAPHIC
SYSTEMS LIMITED, a company organized under the laws of England whose
registered office is at Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx XX0 0XX,
Xxxxxx Xxxxxxx ("XXXX UK"), XXXX SYSTEMES GRAPHIQUES NANTES S.A., a SOCIETE
ANONYME organized under the laws of France whose registered office is at 00,
xxx xx Xxxxxx, 00000 Xxxxxx, Xxxxxx ("XXXX FRANCE"), XXXX GRAPHIC SYSTEMS
JAPAN CORPORATION, a corporation organized under the laws of Japan whose
registered office is located at Mitsuya Toranomon Building, 22-14 Toranomon
1-Chome, Minato-Ku, Tokyo 000, Xxxxx ("XXXX XXXXX"; together with Company,
Xxxx UK and Xxxx France, the "BORROWERS"), THE FINANCIAL INSTITUTIONS ACTING
AS LENDERS AND LISTED ON THE SIGNATURE PAGES HEREOF, THE FINANCIAL
INSTITUTIONS ACTING AS INDEMNIFYING LENDERS AND LISTED ON THE SIGNATURE PAGES
HEREOF, BANKERS TRUST COMPANY, as administrative agent for Lenders
("ADMINISTRATIVE AGENT"), and CREDIT SUISSE FIRST BOSTON, as syndication agent
("SYNDICATION AGENT"), and is made with reference to that certain Amended
and Restated Multicurrency Credit Agreement dated as of January 19, 1998 (the
"CREDIT AGREEMENT") by and among Borrowers, Lenders, Indemnifying Lenders,
Administrative Agent and Syndication Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Borrowers and Lenders desire to waive compliance by
Company of certain financial covenants with respect to the second Fiscal
Quarter of 1998.
NOW THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as
follows:
SECTION 1. LIMITED WAIVER
Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of Company herein contained,
Lenders hereby waive compliance with the provisions of subsections 7.6B, 7.6C
and 7.6D of the Credit Agreement to the extent, and only to the extent,
necessary to permit (i) the Consolidated Leverage Ratio for the four-Fiscal
Quarter period ending on the last day of the second Fiscal Quarter of 1998 to
be higher than the ratio set forth in the table contained in subsection 7.6B,
(ii) the Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on the last day of
the second Fiscal Quarter of 1998 to be lower than the figure set forth in
the table contained in subsection 7.6C and (iii) the Consolidated Net Worth
for the second Fiscal Quarter of 1998 to be lower than the figure set forth
in the table contained in subsection 7.6D; PROVIDED that in any event Company
shall not permit (1) the Consolidated Leverage Ratio for such four-Fiscal
Quarter period to be more than 6.88:1.00, (2) the Consolidated Adjusted
EBITDA for such four-Fiscal Quarter period to be less than $54,000,000 and
(3) the Consolidated Net Worth at any time during the second Fiscal Quarter of
1998 to be less than $83,300,000.
SECTION 2. LIMITATION OF WAIVER
Without limiting the generality of the provisions of subsection
10.6 of the Credit Agreement, the waiver set forth above shall be limited
precisely as written and relates solely to the noncompliance by Company with
the provisions of subsections 7.6B, 7.6C and 7.6D of the Credit Agreement in
the manner and to the extent described above, and nothing in this Waiver shall
be deemed to:
(a) constitute a waiver of compliance by Company with respect to
(i) subsections 7.6B, 7.6C and 7.6D of the Credit Agreement in any other
instance or (ii) any other term, provision or condition of the Credit
Agreement or any other instrument or agreement referred to therein
(whether in connection with the noncompliance of Company of the
financial covenants described above or otherwise); or
(b) prejudice any right or remedy that Administrative Agent or any
Lender may now have (except to the extent such right or remedy was based
upon existing defaults that will not exist after giving effect to this
Waiver) or may have in the future under or in connection with the Credit
Agreement or any other instrument or agreement referred to herein.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Waiver, Company
hereby represents and warrants that after giving effect to this Waiver:
(a) as of the date hereof, there exists no Event of Default or
Potential Event of Default under the Credit Agreement;
(b) all representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete
in all material respects on and as of the date hereof except to the
extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date; and
(c) as of the date hereon, Company has performed all agreements to
be performed on its part as set forth in the Credit Agreement.
SECTION 4. COUNTERPARTS; EFFECTIVENESS
This Waiver may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages
may be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Waiver shall become effective as of the date hereof upon the
execution of counterparts hereof by Borrowers and by Lenders constituting
Requisite Lenders and receipt by Company and Administrative Agent of written
or telephonic notification of such execution and authorization of delivery
thereof.
SECTION 5. GOVERNING LAW
THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWERS:
XXXX GRAPHIC SYSTEMS, INC.
By: ______________________
Title: ___________________
XXXX GRAPHIC SYSTEMS LIMITED
By: ______________________
Title: ___________________
XXXX SYSTEMES GRAPHIQUES NANTES
S.A.
By: ______________________
Title: ___________________
XXXX GRAPHIC SYSTEMS JAPAN
CORPORATION
By: ______________________
Title: ___________________
LENDERS:
BANKERS TRUST COMPANY,
as Administrative Agent and as a
Lender
By: ______________________
Title: ___________________
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent and as a
Lender
By: ______________________
Title: ___________________
By: ______________________
Title: ___________________
[Other Signature Pages Omitted]
