Exhibit 10.3
SECOND AMENDMENT AND WAIVER TO THE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
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SECOND AMENDMENT AND WAIVER dated as of April 12, 2002
(this "Amendment") with respect to the Third Amended and Restated Credit
Agreement dated January 24, 2002 (as amended, the "Credit Agreement") by
and among Consoltex Holdings, Inc., Consoltex Inc., Consoltex Mexico, S.A.,
de C.V., Consoltex (USA) Inc., Consoltex International Inc., LINQ
Industrial Fabrics, Inc. and Rafytek, S.A. de C.V., as Borrowers
(collectively, the "Borrowers"), the lenders party thereto (the "Lenders"),
National Bank of Canada and Bank of America, N.A., as agents (the
"Agents").
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders
have made Loans and other financial accommodations to the Borrowers which
remain outstanding; and
WHEREAS, certain Events of Default may have occurred and
be continuing; and
WHEREAS, the Borrowers have requested that the Agents and
the Lenders (i) waive certain Events of Default that may have occurred and
be continuing and (ii) amend the Credit Agreement as set forth herein, and
the Agents and the Lenders are willing to do so, but only on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Defined Terms. Unless otherwise defined
herein, capitalized terms used herein have the meanings assigned in the
Credit Agreement, and the following term shall have the following meaning:
"Specified Event of Default": any Event of Default that
may have arisen in respect of Section 2.2(b) of the Credit Agreement at any
time prior to the effective date of this Amendment.
ARTICLE II
WAIVER
Subject to the terms and conditions of this Amendment,
the Agents and the Lenders hereby agree to waive the Specified Event of
Default.
ARTICLE III
AMENDMENT
Section 3.1. Amendment to Section 1.1 (Definitions). (a)
Section 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "Overadvance Period" and inserting in lieu thereof the
following:
"Overadvance Period" means, individually, each period of
time from (i) the Closing Date to and including the earlier to
occur of (A) May 25, 2002 or (B) the date on which an Authorized
Representative of the Borrowers delivers to the Agents the
Borrowing Base Certificate for the month ended April 30, 2002 and
(ii) January 1, 2003 to and including March 31, 2003.
ARTICLE IV
EFFECTIVE DATE
Section 4.1 Effectiveness. This Amendment shall become
effective as of the date hereof upon receipt by the U.S. Agent of (i)
counterparts of this Amendment, duly executed and delivered by the
Borrowers, the Guarantors, the Agents and the Lenders and (ii) payment in
full in cash of the invoiced and unpaid fees and expenses of the Agents'
professionals.
ARTICLE V
INTERPRETATION
Section 5.1. Continuing Effect of the Credit Agreement.
The Borrowers, the Guarantors, the Agents and each Lender hereby
acknowledges and agrees that the Credit Agreement shall continue to be and
shall remain unchanged and in full force and effect in accordance with its
terms, except as expressly modified hereby.
Section 5.2. No Waiver. Nothing contained in this
Amendment shall be construed or interpreted or is intended as a waiver of
any Default or Event of Default (other than the Specified Event of Default)
or of any rights, powers, privileges or remedies that the Agents or the
Lenders have or may have under the Credit Agreement, any other related
document or applicable law on account of such Default or Event of Default.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Representations and Warranties. The
Borrowers and the Guarantors hereby represent and warrant as of the date
hereof that, after giving effect to this Amendment, (a) no Default or Event
of Default (other than the Specified Event of Default) has occurred and is
continuing, and (b) all representations and warranties of the Borrowers and
the Guarantors contained in the Credit Agreement are true and correct in
all material respects with the same effect as if made on and as of such
date.
Section 6.2. Payment of Fees and Expenses. The Borrowers
hereby agree to pay or reimburse the Agents on demand for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
preparation and execution of this Amendment, including, without limitation,
the reasonable fees and disbursements of counsel to the Agents.
Section 6.3. Counterparts. This Amendment may be executed
by the parties hereto in any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the
same instrument.
Section 6.4. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
Section 6.5. Reservation of Rights. Notwithstanding
anything contained in this Amendment, the Borrowers and the Guarantors
acknowledge that the Agents and the Lenders do not waive, and expressly
reserve, the right to exercise, at any time, any and all of their rights
and remedies under the Credit Agreement, any other related document and
applicable law on account of any Default or Event of Default (other than
the Specified Event of Default).
Section 6.6. Confirmation of Indebtedness. The Borrowers
hereby confirm and acknowledge that, as of the Closing Date, the Borrowers
are truly and justly indebted to the Lenders, without defense, counterclaim
or offset of any kind.
Section 6.7. Waiver. The Borrowers and the Guarantors
hereby release, waive, and forever relinquish all claims, demands,
obligations, liabilities and causes of action of whatever kind or nature,
whether known or unknown, which any of them have, may have, or might assert
at the time of execution of this Amendment or in the future against the
Agents, the Lenders and/or their respective parents, affiliates,
participants, officers, directors, employees, agents, attorneys,
accountants, consultants, successors and assigns (collectively, the "Lender
Group"), directly or indirectly, which occurred, existed, was taken,
permitted or begun prior to the execution of this Amendment, arising out
of, based upon, or in any manner connected with (i) any transaction, event,
circumstance, action, failure to act or occurrence of any sort or type,
whether known or unknown, with respect to the Credit Agreement, any other
Credit Document and/or the administration thereof or the obligations
created thereby; (ii) any discussions, commitments, negotiations,
conversations or communications with respect to the refinancing,
restructuring or collection of any obligations related to the Credit
Agreement, any other Credit Document and/or the administration thereof or
the obligations created thereby, or (iii) any matter related to the
foregoing; provided, however, that the provisions of this Section 6.7 shall
not apply to any such matters of which the Borrowers and the Guarantors are
presently unaware and which constitute or result from the gross negligence
and/or willful misconduct of any member of the Lender Group.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly
authorized officers as of the date first above written.
CONSOLTEX HOLDINGS, INC., as Borrower and
Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: President, COO & CFO
CONSOLTEX INC., as Borrower and Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: V.P. Strategic Planning
CONSOLTEX MEXICO, S.A. de C.V., as Borrower and
Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: Director
CONSOLTEX (USA) INC., as Borrower and Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: President, COO & CFO
CONSOLTEX INTERNATIONAL, INC., as Borrower and
Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: V.P. Strategic Planning
LINQ INDUSTRIAL FABRICS, INC., as Borrower and
Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: V.P. Strategic Planning
RAFYTEK, S.A. de C.V., as Borrower and Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: Director
RAFYTICA, S.A., as Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: Director
ROYALTON MEXICANA, S.A. de C.V. , as Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: Director
ROYALTON de MEXICO, S.A. de C.V. , as Guarantor
By: /s/Xxxx X. Xxxxxxxx
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Title: Director
NATIONAL BANK OF CANADA, as Canadian Agent and
Lender
By: /s/Xxxx Xxxx
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Title: Vice-President Special Loans and
Real Estate
/s/Xxxxxx Xxxxx
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Senior Manager
BANK OF AMERICA, N.A., as U.S. Agent
By: /s/ Xxxxxxxx X. Xxxxxx
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Title: Vice President
BANK OF AMERICA, N.A., as Lender
By: /s/ Xxxxx X. Xxxxx
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Title: Principal
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/Xxxxx Smiles
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Title: Director
FLEET BUSINESS CREDIT, LLC, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President
GMAC BUSINESS CREDIT LLC, as a Lender
By: /s/ Xxxxxx Xxxxxxxxxxx
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Title: Director
