WAIVER
This WAIVER with respect to that certain CREDIT AGREEMENT
("Waiver") is made as of July 10, 2000 by and among Xxxxxxxxx Xxxxx (Canada)
Corporation (the "Borrower") and Bank One Canada (formerly known as First
Chicago NBD Bank, Canada) (the "Lender"). Defined terms used herein and not
otherwise defined herein shall have the meaning given to them in the Credit
Agreement.
WITNESSETH
WHEREAS, the Borrower and the Lender are parties to that
certain Credit Agreement, dated as of July 30, 1999, as amended (the "Credit
Agreement);
WHEREAS, the Borrower's affiliate, Xxxxxxxxx Xxxxx
Corporation, Bank One, NA and Fleet Business Credit Corporation are parties to
that certain Amended and Restated Credit Agreement dated as of July 2, 1997, as
amended (the "U.S. Credit Agreement").
WHEREAS, the Borrower has requested that the Lender provide a
waiver under the Credit Agreement with respect to the Borrower's violation of
the covenants set forth in SECTION 6.4 of the U.S. Credit Agreement as
incorporated in the Credit Agreement in SECTION 8.3 thereof for the Fiscal
Quarter ending in May, 2000;
WHEREAS, the Lender is willing to provide such a waiver on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower and the Lender have entered into this Waiver.
1. WAIVER. Effective as of the date hereof, subject to the satisfaction
of the condition precedent set forth in SECTION 2 below, the Lender hereby
agrees to waive the requirements of SECTION 8.3 of the Credit Agreement for the
Fiscal Quarter ending in May, 2000.
2. CONDITIONS OF EFFECTIVENESS. This Waiver shall become effective and
be deemed effective as of the date hereof, if, and only if, the Agent shall have
received four (4) duly executed originals of this Waiver from the Borrower and
the Lenders.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The Borrower hereby
represents and warrant as follows:
(a) The Credit Agreement as previously executed constitutes
the legal, valid and binding obligation of the Borrower and is enforceable
against the Borrower in accordance with its terms.
(b) Upon the effectiveness of this Waiver, the Borrower hereby
(i) represents that no Default or Unmatured Default exists, (ii) reaffirms all
covenants, representations and warranties made in the Credit Agreement, and
(iii) agrees that all such covenants, representations and warranties shall be
deemed to have been remade as of the effective date of this Waiver.
4. EFFECT ON THE CREDIT AGREEMENT. The execution, delivery and
effectiveness of this Waiver shall neither, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the Lender, nor constitute
a waiver of any provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection therewith.
5. COSTS AND EXPENSES. The Borrower agrees to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses charged
to the Lender) incurred by the Lender in connection with the preparation,
arrangement, execution and enforcement of this Waiver.
6. HEADINGS. Section headings in this Waiver are included herein for
convenience of reference only and shall not constitute a part of this Waiver for
any other purpose.
7. COUNTERPARTS. This Waiver may be executed by one or more of the
parties to the Waiver on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. NO STRICT CONSTRUCTION. The parties hereto have participated jointly
in the negotiation and drafting of this Waiver. In the event an ambiguity or
question of intent or interpretation arises, this Waiver shall be construed as
if drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Waiver.
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IN WITNESS WHEREOF, this Waiver has been duly executed as of
the day and year first above written.
XXXXXXXXX XXXXX (CANADA) CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK ONE CANADA, as the Lender
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP
BANK ONE, NA, formerly
known as The First National
Bank of Chicago,
individually and as Agent
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxx
Title: SVP
FLEET BUSINESS CREDIT CORPORATION,
formerly known as Sanwa
Business Credit Corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Signature Page to Waiver dated July 10, 2000
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