TEMPORARY WAIVER AGREEMENT
THIS TEMPORARY WAIVER AGREEMENT (this "Waiver Agreement") is dated as of
June 5, 1998, by and among CASTLE & XXXXX, INC., a Hawaii corporation (the
"Borrower"), the Lenders listed below (the "Required Lenders") and The Chase
Manhattan Bank, as Collateral Agent and Administrative Agent for the Lenders
(in such capacity, the "Agent").
WITNESSETH
WHEREAS, the Borrower, the Lenders, and the Agent are parties to the
Amended and Restated Credit Agreement dated as of May 16, 1997, as amended
(as amended, the "Credit Agreement");
WHEREAS, the clause (I) of Section 6.01 (g) of the Credit Agreement sets
forth a maximum aggregate principal amount of certain Indebtedness permitted
thereunder, equal to the lesser of (1) the Total Commitment (i.e.
$250,000,000) PLUS $10,000,000, or (2) the Borrowing Base, PLUS $10,000,000;
and
WHEREAS, the Borrower has requested that the Required Lenders
temporarily waive, and the Required Lenders are willing to temporarily waive,
the foregoing cap in Indebtedness, on the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the foregoing premises, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and fully intending to be legally bound by this
Temporary Waiver Agreement, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. TEMPORARY WAIVER.
(a) Effective only during the "Waiver Period" (as defined below), the
maximum aggregate principal amount of Indebtedness allowed under clause (i)
of Section 6.01 (g) of the Credit Agreement shall be equal to the lesser of
(1) the Total Commitment, PLUS $10,000,000, PLUS the Debt Cushion (as defined
below), or (2) the Borrowing Base, PLUS $10,000,000, plus the Debt Cushion.
(b) As used herein, the following terms shall have the meaning
indicated.
(1) "Debt Cushion" means additional debt in the amount shown on
Schedule A attached hereto under the column labeled Debt Cushion relating to
the shares of Borrower's common stock repurchased pursuant to the Tender
Offer.
(2) "Tender Offer" means that Offer to Purchase dated May 15,
1998,
whereby the Borrower has offered to purchase for cash up to 3,000,000 shares
of its common stock at a purchase price not greater than $19.50 nor less than
$17.75 per share.
(3) "Waiver Period" means the period commencing on the date of
this Waiver Agreement and terminating on October 31, 1998 or such earlier
date on which the Debt Cushion is repaid.
(c) Upon termination of the Waiver Period, the waiver set forth above
in this numbered paragraph 2 shall thereupon and thereafter be of no further
force or effect.
3. LIMITATION, RATIFICATION AND CONFIRMATION. The waiver set forth in the
preceding numbered Paragraph 2 shall be strictly construed and shall not,
except as expressly provided, constitute a waiver or amendment of any terms
or conditions of the Credit Agreement. Except as specifically set forth in
numbered paragraph 2 above, all terms of the Credit Agreement and the other
Loan Documents are ratified and confirmed in all respects.
4. COUNTERPARTS. This Waiver Agreement may be executed in one or more
counterparts, each of which shall be an original but all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF,. the parties hereto have caused this Waiver Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
CASTLE & XXXXX, INC.
By: /s/ XXXXXX X. XXXXXX
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
By: /s/ XXXX X. XXXXXXX
----------------------------
Name: Xxxx X. Xxxxxxx
By: Assistant Treasurer
THE CHASE MANHATTAN BANK
By: /s/ XXXX X. XXXXXXXXXX
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
SAN FRANCISCO AGENCY
By: /s/ XXXXX XXXXXX
----------------------------
Name: Xxxxx Xxxxxx
Title: Relationship Manager
XXXXX FARGO BANK
NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXXXX
----------------------------
Name: Xxxx X. Xxxxxxx
Title Assistant Vice President
BANK OF HAWAII
By: /s/ XXX. X. XXXXXXXX
----------------------------
Name: Xxx. X. Xxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SOCIETE GENERALE
By: /s/ XXXXX XXXXXXXX
----------------------------
Name: Xxxxx XxXxxxxx
Title: Vice President
BANKBOSTON, N.A.
By: /s/ XXXXXX XXXXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
BANKERS TRUST COMPANY
By: /s/ XXXXXXXXX XXXXXXX
----------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Managing Director
CASTLE & XXXXX, INC. SCHEDULE A
SHARES REPURCHASED DEBT CUSHION
--------------------- ------------
3,000,000 - 2,750,001 20,000,000
2,750,000 - 2,500,001 15,000,000
2,500,000 - 2,000,001 10,000,000
2,000,000 or less 0
