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EXHIBIT 10(ddd)
EXECUTION COPY
WAIVER TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This WAIVER dated as of March 4, 1994 (this "Waiver"), is to
the Second Amended and Restated Credit Agreement, dated as of May 4, 1992 (as
amended, supplemented or otherwise modified from time to time, the "Second
Restated Agreement"), among THE MORNINGSTAR GROUP INC., a Delaware corporation
(the "Company"), the financial institutions from time to time parties to the
Second Restated Agreement (the "Lenders"), THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH, as agent for the Lenders (in such capacity, the
"Agent"), and BANQUE PARIBAS, HOUSTON AGENCY, as co-agent for the Lenders (in
such capacity, the "Co-Agent").
W I T N E S S E T H :
WHEREAS, the Company, the Lenders, the Agent and the Co-Agent
are parties to the Second Restated Agreement pursuant to which the Lenders have
agreed to make, and have made, extensions of credit to the Company; and
WHEREAS, the Company has asked the Lenders to waive a certain
financial covenant contained in the Second Restated Agreement, and the Lenders
are willing to waive the covenant in the manner provided for herein;
NOW, THEREFORE, in consideration of the premises and mutual
covenants provided for herein, it is hereby agreed as follows:
1. DEFINED TERMS. Unless otherwise defined herein,
capitalized terms used herein have the meanings assigned to them in the Second
Restated Agreement.
2. WAIVER. By their execution hereof, each of the
Lenders hereby waives the provision of Section 5.03(a) requiring that the
Company have a Consolidated Net Worth as of the end of the fiscal year ending
December 31, 1993 of not less than (i) the Consolidated Net Worth as of the end
of the first fiscal month following the Effective Date plus (ii) $11,000,000.
Compliance with such covenant is waived by the Lenders solely for the fiscal
year ending December 31, 1993, and such covenant shall remain in full force and
effect with respect to all other fiscal years.
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3. CONDITIONS TO EFFECTIVENESS. This Waiver shall
become effective upon the receipt by the Agent of counterparts of this Waiver,
duly executed and delivered by an authorized officer of the Company and the
Required Lenders.
4. REPRESENTATIONS AND WARRANTIES. The Company hereby
confirms that the representations and warranties contained in the Second
Restated Agreement are true and correct as of the date hereof, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true and correct on as of such earlier date.
5. CONTINUING EFFECT OF THE SECOND RESTATED AGREEMENT.
This Waiver shall not constitute a waiver of any provision not expressly
referred to herein and shall not be construed as a waiver or consent to any
action on the part of the Company that would require a waiver or consent of the
Lenders or of the Agent or Co-Agent except as expressly stated herein. Except
as expressly modified hereby, the provisions of the Second Restated Agreement
are and shall remain in full force and effect.
6. COUNTERPARTS. This Waiver may be executed by all
parties hereto in any number of separate counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. HEADINGS DESCRIPTIVE. The headings of the several
sections and subsections of this Waiver are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of
this Waiver.
8. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be executed and delivered in New York, New York by their proper and duly
authorized officers as of the date and year first above written.
THE MORNINGSTAR GROUP INC.,
a Delaware corporation
By:________________________________
Name:___________________________
Title:__________________________
LENDERS:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:________________________________
Name:___________________________
Title:__________________________
BANQUE PARIBAS, HOUSTON AGENCY
By:________________________________
Name:___________________________
Title:__________________________
By:________________________________
Name:___________________________
Title:__________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:________________________________
Name:___________________________
Title:__________________________
CITICORP USA, INC.
By:________________________________
Name:___________________________
Title:__________________________
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THE DAIWA BANK, LTD.
By:________________________________
Name:___________________________
Title:__________________________
By:________________________________
Name:___________________________
Title:__________________________
NATIONSBANK OF TEXAS, N.A.
By:________________________________
Name:___________________________
Title:__________________________
CONTINENTAL BANK N.A.
By:________________________________
Name:___________________________
Title:__________________________
CAISSE NATIONALE DE CREDIT AGRICOLE
By:________________________________
Name:___________________________
Title:__________________________
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