Exhibit 4.16
CREDIT AGREEMENT DATED
AS OF DECEMBER 5, 1996
AMENDMENT
AMENDMENT, dated as of March 27, 1997 (this "Amendment"), to
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 amend the Credit Agreement as set forth herein; and
WHEREAS, the Lenders are willing to amend 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 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. Amendment of Section 6.02 (Dividends and
Distributions). Section 6.02(b) of the Credit Agreement is hereby amended by
inserting immediately at the end thereof the phrase" plus an additional
$12,000,000 for the period from April 1, 1997 through December 31, 1997".
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 amendments 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 Amendment
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 Amendment and (iii) the Credit
Agreement as amended by this Amendment.
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SECTION 4. Conditions Precedent. This Amendment shall become
effective as of the date hereof (the "Amendment Effective Date") when each of
the conditions precedent set forth below shall have been fulfilled:
(a) Amendment. The Administrative Agent shall have received
this Amendment, 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 Amendment
Effective Date and after giving effect to this Amendment 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 Amendment and the transactions contemplated hereby shall be true
and correct in all material respects on and as of the Amendment 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 Amendment. 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, Consent and Amendment, substantially in the form of
Exhibit A hereto.
SECTION 5. Continuing Effect of Credit Agreement. This
Amendment 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 amended
and waived hereby, the provisions of the Credit Agreement are and shall remain
in full force and effect.
SECTION 6. 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 Amendment 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 Amendment and any other such documents.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
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SECTION 8. Counterparts. This Amendment 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
Amendment 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 CORPORATION
By /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
by /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
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NATIONSBANK, N.A.
by /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK OF IRELAND - GRAND CAYMAN BRANCH
By /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
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/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Relationship Manager
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By /s/ W. Xxxxx Xxxxx
Name: W. Xxxxx Xxxxx
Title: Senior Vice President
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BRANCH BANKING AND TRUST COMPANY
By
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: First Vice President
CIBC INC.
By /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director, CIBC Wood Gundy Securities Corp. AS AGENT
COMERICA BANK
By /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Account Officer
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By /s/ Michel de Rennaly
Name: Michel de Rennaly
Title: Deputy General Manager
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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CREDIT LYONNAIS, NEW YORK BRANCH AND CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
By
Name:
Title:
CREDITANSTALT CORPORATE FINANCE, INC.
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
By /s/ W. Xxxxx Xxxxx
Name: W. Xxxxx Xxxxx
Title: Senior Associate
DRESDNER BANK, A.G. NEW YORK AND GRAND CAYMAN BRANCHES
By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By /s/ Xxxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By /s/ Xxxxx Silendo
Name: Xxxxx Silendo
Title: Vice President
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FUJI BANK
By
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN LTD., NEW YORK BRANCH
By /s/ Xxxxxxx Xxxxxx
Name: Shiuchi Tajima
Title: Deputy General Manager
NBD BANK
By
Name:
Title:
THE NIPPON CREDIT BANK, LTD.
By /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Senior Manager
THE ROYAL BANK OF SCOTLAND, PLC
By /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
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SOCIETE GENERALE
By /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President, Manager
SUMITOMO BANK, LIMITED
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Manager, Corporate Finance Dept.
THE SUMITOMO TRUST & BANKING CO., LTD.
By
Name:
Title:
SUNTRUST BANK, ATLANTA
By /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Banking Officer
By /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
THE TORONTO-DOMINION (NEW YORK), INC.
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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XXX XXXXXX AMERICAN CAPITAL PRIME RATE INCOME TRUST
By
Name:
Title:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
By /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Senior Vice President
ALLIED SIGNAL INC.
By
Name:
Title:
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EXHIBIT A TO
AMENDMENT
ACKNOWLEDGEMENT, CONSENT AND AMENDMENT
Each of the undersigned corporations hereby:
(a) acknowledges and consents to the execution, delivery and
performance of the Amendment, dated as of March 27, 1997 (the "Amendment") to
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: March 27, 1997
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/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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
IMPERIAL WALLCOVERINGS, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
MARKETING SERVICE, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President
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
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XXXXXXX & XXXXXX INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Treasurer
WICKES MANUFACTURING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Assistant Treasurer
WICKES REALTY, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Vice President
ACK-TI-LINING, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
AMCO CONVERTIBLE FABRICS, INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
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MANCHESTER 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 & AKIMAN PROPERTIES, INC. (f/k/a
XXXXXXX & XXXXXX FLOOR COVERINGS)
GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Secretary and Treasurer
XXXXXXX & XXXXXX CARPET & ACOUSTICS (MI), INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
XXXXXXX & XXXXXX CARPET & ACOUSTICS (TN), INC.
By: /s/ J. Xxxxxxx Xxxxx
Name: J. Xxxxxxx Xxxxx
Title: Executive Vice President and Chief Financial Officer
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