EXHIBIT 10.2
This SECOND TEMPORARY AND LIMITED WAIVER AND AGREEMENT dated as of
July 8, 2005 (this "Waiver"), is entered into between XXXXXXX & XXXXXX
AUTOMOTIVE XXXXXXXXXX, X.X. DE C.V., a Mexican sociedad anonima de capital
variable (the "Construction Agent" or the "Company") and GE CAPITAL DE MEXICO,
S. DE X.X. DE C.V., a Mexican sociedad de responsabilidad limitada de capital
variable (the "Owner") and relates to that certain Construction Agency
Agreement, dated as of November 8, 2004 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Agreement"), between
the Company and the Owner. Capitalized terms used and not otherwise defined
herein have the respective meanings assigned to them in the Agreement or
Appendix A thereto.
W I T N E S S E T H:
WHEREAS, the Company has requested and the Owner agrees to waive certain
provisions of the Agreement and refrain from taking certain actions for a
limited period of time as set forth herein;
WHEREAS, the Owner is willing to so waive such provisions of the Agreement
but only for a limited period of time pursuant to the terms and subject to the
conditions set forth herein;
WHEREAS, Xxxxxxx, the maker of the Guaranty has filed for relief pursuant
to Title 11 of the United States Bankruptcy Code (the "Filing");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Company and the Owner agree as follows:
SECTION 1. Waivers by the Owner; Next Advance
(a) The Owner hereby temporarily and solely on the limited basis set
forth herein waives the rights it may have to take action or exercise remedies
as a result of the defaults under the provisions described in Exhibit A hereto
(the "Waived Events") until the earliest of: (x) the occurrence of a
Construction Agency Event of Default that is not a Waived Event or (y) July 15,
2005 (the period commencing on the date this Waiver becomes effective and ending
on the earliest of the dates referred to in clauses (x) and (y) of this Section
being referred to herein as the "Covered Period").
(b) Notwithstanding the occurrence and existence of the Waived
Events, on or before July 8, 2005, Owner shall make an Advance in an amount up
to $1,315,764.03, less a Waiver Fee in the amount of $50,000 plus applicable
taxes which the Construction Agent agrees may be deducted from the Advance, on
the terms and subject to the conditions (not waived hereby) as provided in the
Agreement.
(c) The Owner agrees that during the Covered Period, but only during
such period, a Waived Event (i) shall not constitute a Construction Agency Event
of Default and (ii) shall not constitute the basis for the declaration of any
Construction Agency Event of Default.
(d) The waivers and agreements provided for by paragraphs (a), (b)
and (c) above shall terminate and expire automatically and without notice or
other action of any kind whatsoever at 11:59 p.m., New York City time, on the
final day of the Covered Period, and at all times thereafter the Agreement shall
apply in all respects, and the Owner shall have all such rights and remedies, as
if this Waiver had never been granted (and shall not for the purpose of the
occurrence of any Construction Agency Event of Default be required to provide
notice of and an opportunity to cure any Waived Event).
SECTION 2. Representations and Warranties. The Company hereby
represents and warrants to the Owner that, as of the date hereof and after
giving effect to this Waiver:
(a) The execution, delivery and performance by the Company of this
Waiver (i) are within the Company's corporate power and (ii) have been duly
authorized by all necessary or proper corporate and shareholder action.
(b) When duly executed and delivered by the Company, each of this
Waiver and the Agreement shall constitute a legal, valid and binding obligation
of the Company enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting the rights of creditors generally and
general equitable principles (whether considered in a proceeding at law or in
equity).
(c) The execution, delivery and performance by the Company of this
Waiver will not contravene any provision of applicable law, rule or regulation
or of the articles of incorporation or bylaws of the Company or constitute a
default under any agreement or any judgment, injunction, order, writ, decree or
other instrument binding upon the Company or result in the creation or
imposition of any adverse Claim on the assets of the Company (except as
contemplated by the Agreement).
(d) The execution, delivery and performance by the Company of this
Waiver does not require any action by or in respect of, or filing with, any
Governmental Authority or official thereof, other than has been obtained or made
and other than as will be made on a Form 8-K with the Securities and Exchange
Commission, which Form 8-K will disclose the transactions contemplated by this
Waiver.
(e) Subject to matters that are described in the "Internal
Accounting Investigation and Related Matters" section of the C&A press release
dated March 17, 2005, all of the representations and warranties of the Company
contained in this Waiver, the Agreement and the other Construction Documents are
true and correct in all material respects on and as of the date hereof, as if
then made (other than representations and warranties which expressly speak as of
a different date, which are true and correct in all material respects as of that
date).
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(f) After giving effect to this Waiver, no Construction Agency Event
of Default (or event with which the giving of notice or passage of time would
constitute a Construction Agency Event of Default) has occurred and is
continuing.
SECTION 3. Waiver Fee. In consideration of the agreements of the
Owner contained in this Waiver, the Company agrees to pay to the Owner, a waiver
fee (the "Waiver Fee") equal to Fifty Thousand Dollars ($50,000) plus applicable
taxes.
SECTION 4. Conditions to Effectiveness. This Waiver shall become
effective as of July 8, 2005, when (a) the Owner shall have received (i) a
counterpart of this Waiver that bears the signature of the Company and Xxxxxxx
and (ii) the Waiver Fee, (b) the representations and warranties set forth in
Section 2 hereof are true and correct and (c) all fees and expenses required to
be paid or reimbursed by the Company pursuant hereto or to the Agreement or
otherwise, including all invoiced fees and expenses of counsel to the Owner
shall have been paid or reimbursed, as applicable.
SECTION 5. Reservation of Rights. Except as specifically waived
hereby, the Agreement shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof and prior to the
execution of this Waiver. Without limiting the generality of the foregoing, the
waivers and agreement in this Waiver shall not affect the obligations of the
Company or the rights of the Owner under the Agreement or with respect to
Xxxxxxx except as specifically set forth in Section 1, all of such rights being
expressly reserved. This Waiver shall be limited solely and narrowly to the
matters expressly set forth herein and shall not (i) constitute an amendment or
waiver of any term or condition of the Agreement or any other Operative
Document, except as expressly set forth herein, (ii) prejudice any right or
remedy which Owner or Lessor may have in the future by reason of the expiration
of the Covered Period, or otherwise, under or in connection with the Agreement
or any other Operative Document as to Xxxxxxx or any other party, (iii) require
the Owner or the Lessor to agree to the same or any similar waiver or
transaction on a future occasion, or (iv) create any rights herein in favor of
Xxxxxxx, another Person or other beneficiary or otherwise. Company agrees that
for the purposes of Section 4.1 of the Agreement (Construction Agency Events of
Default) a breach of an agreement or representation or warranty of the Company
contained in this Waiver shall be given the same effect as a breach of an
agreement or representation or warranty of the Company under Section 4.1(i),
(iii) or (v), as the case may be, of the Agreement. Owner's rights as to Xxxxxxx
shall be subject only to the effect, if any, of the Filing.
SECTION 6. 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.
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SECTION 7. Expenses. The Company agrees to reimburse the Owner for
its out-of-pocket expenses in connection with this Waiver, including the fees,
charges and disbursements of counsel for the Owner.
SECTION 8. Headings. The headings of this Waiver are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
[Remainder of page left blank. Signature pages follow.]
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SIGNATURE PAGE TO
WAIVER DATED AS OF
July 8, 2005
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 AUTOMOTIVE
XXXXXXXXXX, X.X. DE C.V., as
Construction Agent and as Company
By:___________________________________
Name: Xxx Xxxxx
Title:
SIGNATURE PAGE TO
WAIVER DATED AS OF
July __,2005
GE CAPITAL DE MEXICO, S. DE X. X. DE C.V.,
as Owner
By: ___________________________
Name: _________________________
Title: Duly Authorized Signatory
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EXHIBIT A
WAIVED EVENTS
Capitalized terms used and not defined herein have the respective meanings
assigned to them in the Agreement.
1. The portion of Section 2.3(b) that requires that no material adverse change
in Guarantor or its business will be waived during the Covered Period.
2. The portion of Section 2.3(h) that requires that the Construction Agent
deliver an officer's certificate including standard representations and
warranties and representing that no Construction Agency Default has occurred and
is continuing only with respect to the Waived Events will be waived during the
Covered Period.
3. Section 2.6(t) will be waived during the Covered Period as it applies to
Sections 1(b) and (d) of Exhibit IV. In addition, the Owner agrees to extend the
Covered Period of the Waiver and Agreement dated as of March 16, 2005 between
Construction Agent and Owner, through the Covered Period of this Waiver.
4. The portion of Section 4.1(viii) that pertains to Xxxxxxx admitting in
writing its inability to pay its debts as they become due will be waived during
the Covered Period.
5. The portion of Section 4.1(ix) that pertains to Xxxxxxx filing a voluntary
petition in bankruptcy concurso mercantil or a voluntary petition or answer
seeking reorganization in a proceeding under any bankruptcy or receivership laws
or by voluntary petition, answer or consent, seek relief under the provisions of
any other now existing or future bankruptcy concurso mercantil, receivership or
other similar law providing for the reorganization or liquidation of
corporations, or providing for an agreement, composition, extension or
adjustment with its creditors will be waived during the Covered Period.
6. Any default under Section 4.1(xii) which results solely from a default under
the Credit Agreement and/or the Operative Documents due to the Filing will be
waived for the Covered Period.
7. Any default under Section 4.1(xiv) which results solely from a default under
any other agreement between the Owner (or any Affiliate of Owner) and the
Construction Agent or Xxxxxxx (including without limitation the Intercompany
Agreement and the Fee Letter) due to the Filing will be waived for the Covered
Period.
8. The portion of Section 4.1(xv) that pertains to a default under any of
Xxxxxxx' credit agreements or financing facilities or similar arrangements under
which any indebtedness equal to or exceeding an aggregate principal amount of
$35,000,000 or more was created or is governed thereby which has not been duly
waived or cured thereunder will be waived during the Covered Period.
