Exhibit 10.2.3
WAIVER AGREEMENT
THIS WAIVER AGREEMENT (this "Waiver"), dated as of July 28, 1999, is by
and among Xxxxxx American Corp. (the "Borrower"), Xxxxxx American Investment
Corp. (the "Parent"), Xxxxxx American Group, Inc. ("Interco") and certain
subsidiaries of the Parent identified on the signature pages hereto (together
with the Parent and Interco, the "Guarantors"), the lenders identified on the
signature pages hereto (the "Lenders"), Bank of America, N.A., formerly
NationsBank, N.A., as agent for the Lenders (in such capacity, the "Agent") and
Gleacher NatWest Inc., as documentation agent (the "Documentation Agent").
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Lenders, the Agent and the
Documentation Agent have entered into that certain Credit Agreement dated as of
May 18, 1998 and as amended as of May 27, 1998, December 18, 1998 and March 19,
1999 (as so amended, the "Credit Agreement");
WHEREAS, the Required Lenders have agreed to waive certain Defaults and
Events of Default as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following term used in this Waiver, including
its preamble and recitals, has the following meaning:
"Waiver Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Waiver, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
PART II
WAIVER
The Required Lenders hereby waive the Defaults and Events of Default
caused by the Borrower's failure to comply with the requirements of Section 7.11
of the Credit Agreement for the fiscal quarter ended June 30, 1999.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Waiver Effective Date. This Waiver shall be and become
effective as of June 30, 1999 (the "Waiver Effective Date") when all of the
conditions set forth in this Part III shall have been satisfied.
SUBPART 3.2. Execution of Counterparts of Waiver. The Agent shall have
received executed counterparts (or other evidence of execution, including
facsimile signatures, satisfactory to the Agent) of this Waiver, which
collectively shall have been duly executed on behalf of each of the Borrower,
the Guarantors and the Required Lenders.
SUBPART 3.3. Other Documents. The Agent shall have received such other
documents as the Agent may reasonably request.
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PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Waiver to any Part or
Subpart are, unless otherwise specified, to such Part or Subpart of this Waiver.
SUBPART 4.2. Instrument Pursuant to Credit Agreement. This Waiver is a
Credit Document executed pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated therein) be construed, administered and applied in
accordance with the terms and provisions of the Credit Agreement.
SUBPART 4.3. Representations and Warranties. Each Credit Party hereby
represents and warrants that (i) each Credit Party that is party to this Waiver:
(a) has the requisite corporate power and authority to execute, deliver and
perform this Waiver, as applicable, and (b) is duly authorized to, and has been
authorized by all necessary corporate action, to execute, deliver and perform
this Waiver, (ii) the Borrower has no claims, counterclaims, offsets, or
defenses to the Credit Documents and the performance of its obligations
thereunder, or if the Borrower has any such claims, counterclaims, offsets, or
defenses to the Credit Documents or any transaction related to the Credit
Documents, the same are hereby waived, relinquished and released in
consideration of the Lenders' execution and delivery of this Waiver, (iii) the
representations and warranties contained in Section 6 of the Credit Agreement
are, subject to the limitations set forth therein, true and correct in all
material respects on and as of the date hereof as though made on and as of such
date (except for those which expressly relate to an earlier date) and (iv) after
giving effect to this Waiver, no Default or Event of Default exists under the
Credit Agreement on and as of the date hereof or will occur as a result of the
transactions contemplated hereby.
SUBPART 4.5. Liens. The Borrower and the Guarantors, as applicable, affirm
the liens and security interests created and granted in the Credit Documents and
agree that this Waiver shall in no manner adversely affect or impair such liens
and security interest.
SUBPART 4.6. Acknowledgment of Guarantors. The Guarantors acknowledge and
consent to all of the terms and conditions of this Waiver and agree that this
Waiver and all documents executed in connection herewith do not operate to
reduce or discharge the Guarantors' obligations under the Credit Agreement or
the other Credit Documents. The Guarantors further acknowledge and agree that
the Guarantors have no claims, counterclaims, offsets, or defenses to the Credit
Documents and the performance of the Guarantors' obligations thereunder or if
the Guarantors did have any such claims, counterclaims, offsets or defenses to
the Credit Documents or any transaction related to the Credit Documents, the
same are hereby waived, relinquished and released in consideration of the
Lenders' execution and delivery of this Waiver.
SUBPART 4.7. No Other Changes. Except as expressly modified in this Waiver,
all the terms, provisions and conditions of the Credit Documents shall remain
unchanged and shall continue in full force and effect.
SUBPART 4.8. Counterparts. This Waiver may be executed by the parties
hereto in several counterparts (including facsimile counterparts), each of which
shall be deemed to be an original and all of which shall constitute together but
one and the same agreement.
SUBPART 4.9. Entirety. This Waiver, the Credit Agreement and the other
Credit Documents embody the entire agreement between the parties and supersede
all prior agreements and understandings, if any, relating to the subject matter
hereof. These Credit Documents represent the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements of the parties.
SUBPART 4.10. Governing Law. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF the Borrower, the Guarantors and the Required
Lenders have caused this Waiver to be duly executed on the date first above
written.
BORROWER: XXXXXX AMERICAN Corp.
By:
Name: Xxxxx X. Xxxxxx
Title: President
GUARANTORS: Xxxxxx American Investment Corp.,
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a Delaware corporation
Xxxxxx American Group, Inc.,
a Delaware corporation
CONSUMER DIRECT CORPORATION,
a Delaware corporation
ARROW FACTORY STORES, INC.,
a Delaware corporation
GAKM RESOURCES CORPORATION,
a Delaware corporation
XXXXXX PEABODY RESOURCES CORPORATION,
a Delaware corporation
XXXXXX XXXXXXX HOLDING CORP.,
a Delaware corporation
XXXXXX, PEABODY & CO., INC.,
a Delaware corporation
BIDERTEX SERVICES INC.,
a Delaware corporation
GREAT AMERICAN KNITTING XXXXX, INC.,
a Delaware corporation
XXXXXX DESIGNER GROUP, INC.,
a Delaware corporation
BIDERMANN TAILORED CLOTHING, INC.,
a Delaware corporation
By:
Name: Xxxxx X. Xxxxxx
Title: President
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LENDERS: BANK OF AMERICA, N. A., formerly
NationsBank, N.A.
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
Name:
Title:
FLEET BANK, N.A.
By:
Name:
Title:
BANKBOSTON, N.A.
By:
Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
(successor in interest to Sanwa Business
Credit Corporation)
By:
Name:
Title:
[Signatures Continued]
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
Name:
Title:
By:
Name:
Title:
FIRST SOURCE FINANCIAL LLP,
By: First Source Financial Inc., its manager
By:
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
Name:
Title:
SUMMIT BANK
By:
Name:
Title:
MARINE MIDLAND BANK
By:
Name:
Title:
[Signatures Continued]
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AG CAPITAL FUNDING PARTNERS, L.P.
By: Xxxxxx Xxxxxx & Co., L.P. as Investment Advisor
By:
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY
By:
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:
Name:
Title:
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
By:
Name:
Title:
STRATA FUNDING LTD.
By:
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By:
Name:
Title:
[Signatures Continued]
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XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By:
Name:
Title:
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