Exhibit 4.5
WAIVER
WAIVER, dated as of October 27, 1998 (this "Waiver"), under the
Credit Agreement, dated as of May 28, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among XXXXXXX &
XXXXXX PRODUCTS CO., a Delaware corporation (the "Company"), XXXXXXX & XXXXXX
CANADA INC., a Canadian corporation (the "Xxxxxxx & Xxxxxx Canada"), XXXXXXX &
XXXXXX PLASTICS, LTD., a Canadian corporation ("Xxxxxxx & Xxxxxx Plastics", and
collectively with Xxxxxxx & Xxxxxx Canada, the "Canadian Borrowers"), XXXXXXX &
XXXXXX CORPORATION, a Delaware corporation ("Holdings"), the financial
institutions parties thereto (the "Lenders"), BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION, as documentation agent (in such capacity, the
"Documentation Agent") and THE CHASE MANHATTAN BANK, as administrative agent (in
such capacity, the "Administrative Agent") and THE CHASE MANHATTAN BANK OF
CANADA, as Canadian administrative agent (in such capacity, the "Canadian
Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Canadian Borrowers 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 period of four fiscal
quarters ending September 26, 1998; provided that such waiver is effective only
if the Interest Coverage Ratio for such period is at least 1.75 to 1.00.
SECTION 3. Waiver of Section 6.16 (Leverage Ratio). Section 6.16 of
the Credit Agreement is hereby waived in respect of the last day of the fiscal
quarter ending September 26, 1998; provided that such waiver is effective only
if the Leverage Ratio on such day is no greater than 5.25 to 1.00.
SECTION 4. Representations and Warranties. Holdings, the Company
and the Canadian Borrowers hereby represent and warrant to the Administrative
Agent, the Canadian
2.
Administrative Agent and each Lender that after giving effect to the waivers
contained herein, Holdings and the Borrower hereby confirm, reaffirm and restate
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:
(a) Waiver. The Administrative Agent shall have received this
Waiver, executed and delivered by a duly authorized officer of each of the
Company, the Canadian Borrowers, 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 Company and the Canadian Borrowers 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 Company, the Canadian Borrowers 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. Waiver Fee. The Company shall pay to each Lender which
executes and delivers this Waiver on or prior to 5:00 p.m., New York City time,
October 30, 1998, a fee equal to .10% of the sum of such Lender's (a) Revolving
Credit Commitment, (b) Canadian Revolving Credit Commitment, (c) outstanding
Tranche A Term Loans and (d) outstanding Tranche B Term Loans, such fee to be
payable only if the conditions precedent to the Waiver Effective Date have been
fulfilled by such time.
3.
SECTION 8. Expenses. The Company and the Canadian Borrowers 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.
SECTION 9. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 10. 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 CANADA INC.
By /s/ J. Xxxxxxx Xxxxx
------------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Chief Financial Officer
and Executive Vice President
XXXXXXX & XXXXXX PLASTICS, LTD.
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, Collateral Agent and as a lender
By /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK OF CANADA, as
Canadian Administrative Agent and as a
Lender
By /s/ Xxxxxxxxx Xxxx
-------------------------------
Name: Xxxxxxxxx Xxxx
Title: Vice President
By /s/ Xxxx X. Xxxx
-------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Documentation
Agent and as a Lender
By /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By /s/ Xxx Xxxxx Xxxxxx
-------------------------------
Name: Xxx Xxxxx Xxxxxx
Title: Vice President
BANK AUSTRIA
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx X. XxXxxxxx, Xx.
-------------------------------
Name: Xxxxxxx X. XxXxxxxx, Xx.
Title: Senior Associate
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Relationship Manager
BANK OF SCOTLAND
By /s/ Xxxxx Xxxx Tat
-------------------------------
Name: Xxxxx Xxxx Tat
Title: Senior Vice President
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By /s/ Xxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
BRANCH BANKING AND TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxxxxxx III
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx III
Title: Vice President
CIBC INC.
By /s/ E. Xxxxxxx Xxxxxx
-------------------------------
Name: E. Xxxxxxx Xxxxxx
Title: Executive Director, CIBC
Xxxxxxxxxxx Corp. AS AGENT
COMERICA BANK
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Account Representative
COMPAGNIE FINANCIERE DE
CIC ET DE L'UNION EUROPEENNE
By /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLENBANK
B.A., "RABOBANK NEDERLAND," NEW YORK BRANCH
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Corporate Banking Officer
By /s/ M. Xxxxxxxxx Xxxxxx
-------------------------------
Name: M. Xxxxxxxxx Xxxxxx
Title: Vice President
CREDIT AGRICOLE INDUSUEZ
By /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx, F.V.P.
Title: Head of Corporate Banking - Chicago
By /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President, Branch Manager
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company
its Investment Manager
By /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
CYPRESSTREE SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By /s/ Xxxxxxxxx X. XxXxxxxxx
-------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Principal
KZH-CYPRESSTREE-1 LLC
By /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
DRESDNER BANK, A.G. NEW YORK AND GRAND
CAYMAN BRANCH
By /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
By /s/ Xxxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxxx Xxxxx
Title: Assistant Treasurer
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By /s/ Xxxx Xxxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Vice President
By /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: First Vice President
FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President and Manager
XX XXXX MANAGEMENT
By
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV LP
By Indosuez Capital as Portfolio Advisor
By /s/
-------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By /s/ Takuya Honjo
-------------------------------
Name: Takuya Honjo
Title: Senior Vice President
KZH III LLC
By /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
THE LONG-TERM CREDIT BANK OF JAPAN
LIMITED, NEW YORK BRANCH
By /s/ Koji Sasayama
-------------------------------
Name: Koji Sasayama
Title: Deputy General Manager
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
By
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By /s/ Xxxxxxxx X. Rossodo
-------------------------------
Name: Xxxxxxxx X. Rossodo
Title: Senior Vice President
XXXXXX XXXXXXX SENIOR FUNDING INC.
By /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
NATEXIS BANQUE BFCE
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
By /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Associate
NATIONSBANK, N.A.
By /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
NEW YORK LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: New York Life Insurance Company
By /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
OCTAGON LOAN TRUST
By: Octagon Credit Investors, As Manager
By
-------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By /s/ Payson X. Xxxxxxxxx
-------------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
SOCIETE GENERALE
By /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
SUNTRUST BANK, ATLANTA
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Banking Officer
TORONTO DOMINION (TEXAS), INC.
By
Name:
Title:
THE TORONTO-DOMINION BANK
By /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: President
THE TRAVELERS INSURANCE COMPANY
By /s/ X. X. Xxxxxxxx
-------------------------------
Name: X. X. Xxxxxxxx
Title: 2nd Vice President
XXX XXXXXX CLO II LTD.
By: XXX XXXXXX AMERICAN CAPITAL MANAGEMENT
as Collateral Manager
By /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
WACHOVIA BANK, N.A.
By /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
EXHIBIT A TO
WAIVER
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned Persons hereby:
(a) acknowledges and consents to the execution, delivery and performance
of the Waiver, dated as of October 27, 1998 (the "Waiver") to the Credit
Agreement dated as of May 28, 1998 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Xxxxxxx &
Xxxxxx Products Co. (the "Company"), Xxxxxxx & Xxxxxx Canada Inc. ("Xxxxxxx &
Xxxxxx Canada"), Xxxxxxx & Xxxxxx Plastics, Ltd. ("Xxxxxxx & Xxxxxx Plastics",
and collectively with Xxxxxxx & Xxxxxx Canada, the "Canadian Borrowers") Xxxxxxx
& Xxxxxx Corporation ("Holdings"), the several banks and other institutions from
time to time parties to the Credit Agreement (the "Lenders"), Bank of America
National Trust & Savings Association, as documentation agent (in such capacity,
the "Documentation Agent") and The Chase Manhattan Bank, as administrative agent
(in such capacity, the "Administrative Agent") and The Chase Manhattan Bank of
Canada, as Canadian administrative agent (in such capacity, the "Canadian
Administrative Agent"); and
(b) agrees that such execution, delivery and performance shall not in any
way affect such Person's obligations under any Loan Document (as defined in the
Credit Agreement) to which such Person 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 __, 1998
XXXXXXX & XXXXXX PRODUCTS CO.
By:
-------------------------------
Name:
Title:
XXXXXXX & XXXXXX CANADA INC.
By:
-------------------------------
Name:
Title:
XXXXXXX & XXXXXX PLASTICS, LTD.
By:
-------------------------------
Name:
Title:
5
XXXXXXX & XXXXXX CORPORATION
By:_______________________
Name:
Title:
THE AKRO CORPORATION
By:_________________________
Name:
Title:
DURA CONVERTIBLE SYSTEMS, INC.
By:_________________________
Name:
Title:
WICKES ASSET
MANAGEMENT, INC.
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX INTERNATIONAL CORPORATION
By:_________________________
Name:
Title:
WICKES REALTY, INC.
By:_________________________
Name:
Title:
AMCO CONVERTIBLE FABRICS, INC.
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX PLASTICS, INC.
By:_________________________
Name:
Title:
XXXXXX PLASTICS, INCORPORATED
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX EUROPE, INC.
By:_________________________
Name:
Title:
PACJ, INC.
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX CARPET & ACOUSTICS (TN),
INC.
By:_________________________
Name:
Title:
XXXXXXX &AIKMAN CARPET & ACOUSTICS
(MI), INC.
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX AUTOMOTIVE INTERNATIONAL,
INC.
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX ASSET SERVICES, INC.
By:_________________________
Name:
Title:
CW MANAGEMENT CORPORATION
By:_________________________
Name:
Title:
XXXXXXX SERVICES, INC.
By:_________________________
Name:
Title:
SAF SERVICES CORPORATION
By:_________________________
Name:
Title:
XXXXXXX & XXXXXX (GIBRALTAR) LIMITED
By:_________________________
Name:
Title:
