EXHIBIT 99.1
EXECUTION COPY
WAIVER NO. 1 dated as of March 31, 2005
(this "Waiver"), to the Amended and Restated Credit
Agreement dated as of September 1, 2004 (as 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
from time to time party thereto (the "Lenders"),
CREDIT SUISSE FIRST BOSTON, as syndication agent,
DEUTSCHE BANK SECURITIES INC., as documentation
agent, and JPMORGAN CHASE BANK, N.A. (formerly known
as JPMorgan Chase Bank), as administrative agent (in
such capacity, the "Administrative Agent").
A. The Borrower has requested that the Required Lenders agree
to waive certain provisions of the Credit Agreement as set forth herein.
B. The Required Lenders are willing so to waive such
provisions of the Credit Agreement pursuant to the terms and subject to the
conditions set forth herein.
C. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned thereto in the Credit Agreement.
SECTION 1. Waivers. (a) The Required Lenders hereby waive the
obligation to deliver (i) the consolidated balance sheets and related statements
of income and cash flows as of the end of and for fiscal year 2004 as required
to be delivered by Section 5.01(a) of the Credit Agreement (the "2004 Financial
Statements"), (ii) the consolidated balance sheets and related statements of
income and cash flows as of the end of and for the fiscal quarter ending March
31, 2005 as required to be delivered by Section 5.01(b) of the Credit Agreement
(collectively with the 2004 Financial Statements, the "Covered Financial
Statements") and (iii) the certificate required to be delivered by Section
5.01(c) of the Credit Agreement, but only to the extent such certificate relates
to or would cover any of the Covered Financial Statements, in the case of
clauses (i), (ii) and (iii) until the earlier of (x) the date on which an event
of default, a termination event or a comparable event occurs under any
Indebtedness having an outstanding principal amount exceeding $15,000,000 for
failure to deliver any of the Covered Financial Statements (other than the
Indentures (as defined below)), (y) the date that is 30 days after the date on
which a notice of default for failure to deliver any of the Covered Financial
Statements is delivered pursuant to any of the indentures (the "Indentures")
with respect to the Permitted Senior Unsecured Notes and the Permitted
Subordinated Notes or (z) June 15, 2005 (the period commencing on the date this
Waiver becomes effective and ending on the earlier of the dates referred to in
clauses (x), (y) and (z) of this Section being referred to herein as the
"Covered Period").
(b) The Required Lenders hereby waive, during the Covered
Period, the application of all representations and warranties in Article III of
the Credit Agreement
and in any certificates delivered under the Credit Agreement to the extent such
representations and warranties relate to the Investigation (as defined below),
except to the extent that the facts relating to the matters that are the subject
of the Investigation become materially inconsistent with such facts previously
disclosed to the Administrative Agent, and such inconsistency is materially
adverse to the Lenders.
(c) The Required Lenders hereby waive, during the Covered
Period, any Default arising from (i) the failure of the Borrower to comply with
the requirements of Section 5.01(a), Section 5.01(b), Section 5.01(c), the first
sentence of Section 5.09 (but only to the extent the first sentence of Section
5.09 relates to matters that are the subject of the Investigation) and Section
5.10 (but only to the extent Section 5.10 relates to the Borrower's obligation
to file annual reports on Form 10-K or quarterly reports on Form 10-Q pursuant
to Sections 13 or 15(d) of the Securities Exchange Act of 1934) of the Credit
Agreement, (ii) the application of any of the representations and warranties in
Article III of the Credit Agreement and in any certificates delivered under the
Credit Agreement (to the extent limited by Section 1(b) above) and (iii) the
failure to comply with the requirements of Section 6.15 of the Credit Agreement
as to any period ending on or before December 31, 2004, but only to the extent
such Default arises as a result of the matters that are the subject of the
Investigation.
(d) The waivers provided for by paragraphs (a), (b) and (c)
above shall terminate and expire at 11:59 p.m., New York City time, on the final
day of the Covered Period, and at all times thereafter the Credit Agreement
shall apply in all respects, and the Administrative Agent and the Lenders shall
have all such rights and remedies, as if such waiver had never been granted.
SECTION 2. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and to each of the Lenders
that:
(a) This Waiver has been duly authorized, executed and
delivered by it and constitutes a legal, valid and binding obligation of each
Loan Party party hereto, enforceable against such Loan Party in accordance with
its terms.
(b) After giving effect to this Waiver, the representations
and warranties set forth in Article III of the Credit Agreement are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) After giving effect to this Waiver, no Default or Event of
Default has occurred and is continuing.
(d) The Borrower's press releases dated as of March 17, 2005
and March 24, 2005, attached hereto as Annex A (such matters that are described
therein collectively and all matters reasonably related thereto are referred to
herein as the "Investigation") states all material facts, and does not omit to
state any material facts, necessary to make the statements concerning the
Investigation misleading in any material respect, in light of the circumstances
in which they were made, as of the date hereof.
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SECTION 3. Waiver Fee. In consideration of the agreements of
the Required Lenders contained in this Waiver, the Borrower agrees to pay to the
Administrative Agent, for the account of each Lender that delivers an executed
counterpart of this Waiver prior to 5:00 P.M., New York City time, on March 31,
2005, a waiver fee (the "Waiver Fee") equal to 12.5 basis points on the
aggregate amount of the Commitments and outstanding Term Loans of such Lender.
SECTION 4. Conditions to Effectiveness. This Waiver shall
become effective as of March 31, 2005, when (a) the Administrative Agent shall
have received (i) counterparts of this Waiver that, when taken together, bear
the signatures of Holdings, the Borrower and the Required Lenders and (ii) the
Waiver Fee, (b) the representations and warranties set forth in Section 2 hereof
are true and correct (as set forth on an officer's certificate delivered to the
Administrative Agent) and (c) all fees and expenses required to be paid or
reimbursed by the Borrower pursuant hereto or to the Credit Agreement or
otherwise, including all invoiced fees and expenses of counsel to the
Administrative Agent shall have been paid or reimbursed, on or prior to
effectiveness as applicable.
SECTION 5. Credit Agreement. Except as specifically waived
hereby, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof as in existence on the date hereof.
Without limiting the generality of the foregoing, the waivers contemplated under
Section 1(a), (b) and (c) above shall not affect the obligations of the Borrower
to deliver other certificates required by the Credit Agreement except as
specifically set forth in Section 1(a), (b) or (c), provided that the
Administrative Agent may take such actions reasonably requested by the Borrower
with respect to delivery of such required certificates to other Lenders to the
extent necessary to ensure that the Borrower is in compliance with Regulation FD
of the Securities Exchange Act of 1934. This Waiver shall be a Loan Document for
all purposes.
SECTION 6. APPLICABLE LAW. THIS WAIVER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Waiver may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one agreement. Delivery of an executed
signature page to this Waiver by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Waiver.
SECTION 8. Expenses. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Waiver, including the fees, charges and disbursements of Cravath, Swaine & Xxxxx
LLP, counsel for the Administrative Agent.
SECTION 9. Headings. The headings of this Waiver are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be duly executed by their respective authorized officers as of the day and
year first written above.
XXXXXXX & XXXXXX PRODUCTS CO.,
by
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Name:
Title:
XXXXXXX & XXXXXX CORPORATION,
by
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Name:
Title:
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
and Collateral Agent,
by
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Name:
Title:
CREDIT SUISSE FIRST BOSTON,
individually and as Syndication Agent,
by
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Name:
Title:
by
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Name:
Title:
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH, as a Lender,
by
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Name:
Title:
by
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Name:
Title:
DEUTSCHE BANK SECURITIES INC.,
individually and as Documentation Agent,
by
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Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender,
by
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Name:
Title:
SIGNATURE PAGE TO WAIVER
DATED AS OF MARCH , 2005
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To Approve the Waiver:
Name of Institution
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by
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Name:
Title:
