AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT AND
OTHER LOAN DOCUMENTS (this "Agreement") is made and entered into effective
as of the 3rd day of January, 2000 among each of CONSOLTEX INC. formerly
known as Consoltex Group Inc., a corporation continued under the laws of
New Brunswick having its principal place of business on the date hereof in
Ville Saint-Laurent, Qu<e'>bec, Canada ("Consoltex Group"), CONSOLTEX (USA)
INC., a New York corporation ("Consoltex USA"), THE BALSON-HERCULES GROUP
LTD., a Rhode Island corporation ("Balson-Hercules"), LINQ INDUSTRIAL
FABRICS, INC., a Delaware corporation ("LINQ", and together with Consoltex
Group, Consoltex and Balson-Hercules, the "Term B Guarantors"), and
CONSOLTEX MEXICO, S.A. DE C.V., a Mexican corporation ("Consoltex Mexico")
(Consoltex Group, Consoltex, Consoltex USA, Balson-Hercules, LINQ and
Consoltex Mexico are collectively referred to herein as the "Borrowers" );
RAFYTEK, S.A. DE C.V., a Mexican corporation ("Rafytek"), RAFYTICA, S.A., a
Costa Rican corporation ("Rafytica"), VERA PAK, S.A. DE C.V., a Mexican
corporation ("Vera Pak"), MARINO TECHNOLOGIES INCORPORATED, a Delaware
corporation ("Marino"), ROYALTON MEXICANA S.A. DE C.V., a Mexican
corporation ("Royalton"), VEST COMPANY VESTCO S.A. DE C.V., a Mexican
corporation ("Vestco") and MARINO TECHNOLOGIES DE MEXICO, S.A. DE C.V., a
Mexican corporation ("Marino Mexico") (the Borrowers, Consoltex
International, Rafytek, Rafytica, Vera Pak, Marino, Walpole, Royalton,
Vestco and Marino Mexico are collectively referred to herein as the
"Guarantors" and individually referred to as a "Guarantor");
NATIONAL BANK OF CANADA, a bank governed by the Bank Act (Canada), having
its head office in Montr<e'>al, Qu<e'>bec, Canada, in its capacity as a
Lender ("NBC"), BANK OF AMERICA, N.A., a national banking association
organized and existing under the laws of the United States, having its
principal office in Charlotte, North Carolina, U.S.A., successor in
interest to NationsBank, National Association, in its capacity as a Lender
("Bank of America"), and EACH OTHER FINANCIAL INSTITUTION EXECUTING AND
DELIVERING A SIGNATURE PAGE HERETO and each other financial institution
which may hereafter execute and deliver an instrument of assignment with
respect to the Credit Agreement, as defined below, pursuant to SECTION 3.8
OR 14.1 thereof (hereinafter NBC, Bank of America and such other financial
institutions may be referred to individually as a "Lender" or collectively
as the "Lenders"), NATIONAL BANK OF CANADA, in its capacity as agent for
the Canadian Facilities Lenders (as defined in the Credit Agreement) (in
such capacity, or any successor agent appointed to serve in such capacity
in accordance with the terms of SECTION 13.9 of the Credit Agreement, the
"Canadian Agent"), and BANK OF AMERICA, N.A., successor in interest to
NationsBank, National Association, in its capacity as agent for the U.S.
Facilities Lenders (as defined in the Credit Agreement) (in such capacity,
or any successor agent appointed to serve in such capacity in accordance
with the terms of SECTION 13.9 of the Credit Agreement, the "US Agent" and
together with the Canadian Agent, the "Agents"), and BANK OF AMERICA, N.A.,
successor in interest to NationsBank, National Association, a national
banking association organized and existing under the laws of the United
States, having its principal office in Charlotte, North Carolina, as
Collateral Agent (in such capacity, the "US Collateral Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agents
have entered into that certain Amended and Restated Credit Agreement dated
as of October 25, 1999 (as from time to time hereafter amended,
supplemented, modified or amended and restated, the "Credit Agreement"),
pursuant to which the Lenders have agreed to make certain Advances to the
Borrowers; and
WHEREAS, the Borrowers, Consoltex International, Inc., a New York
corporation ("Consoltex International"), Rafytek, Rafytica, and the Agents
have entered into a Guaranty Agreement dated as of March 19, 1996 (the
"Initial Guaranty"), Vera Pak, the Agents and Desjardins Trust Inc. have
entered into a Guaranty Agreement dated as of May 31, 1996 (the "Vera Pak
Guaranty") and Marino, Walpole Inc., a New Jersey corporation ("Walpole"),
Royalton, Vestco, Marino Mexico, the Agents and Desjardins Trust Inc. have
entered into a Guaranty Agreement dated as of October 22, 1999 (the "1999
Guaranty" and together with the Initial Guaranty and the Vera Pak Guaranty,
the "Guaranty Agreements"), pursuant to which Guaranty Agreements the
Guarantors have guaranteed payment of the Borrowers' Liabilities (as
defined in each respective Guaranty Agreement); and
WHEREAS, the Borrowers (except for Consoltex Mexico), and the US
Collateral Agent have entered into a Security Agreement dated as of March
19, 1996 (the "1996 Security Agreement") and Marino, Walpole and the US
Collateral Agent have entered into a Security Agreement dated as of
October 22, 1999 (the "1999 Security Agreement", and together with the 1996
Security Agreement, the "Security Agreements"); and
WHEREAS, the Borrowers (except for Consoltex Mexico) and the US
Collateral Agent have entered into an Assignment of Patents, Trademarks,
Service Marks and Copyrights dated as of March 19, 1996 (the "IP
Assignment"); and
WHEREAS, the Borrowers have informed the Agents, the US Collateral
Agent, the Canadian Collateral Trustee and the Lenders that the following
has occurred: (i) Consoltex Group has acquired all property, rights and
assets and has assumed all debts, liabilities and obligations of Consoltex
Inc., a corporation incorporated under the laws of Qu<e'>bec ("Consoltex")
and Consoltex will be dissolved, (ii) Consoltex Group has changed its name
to Consoltex Inc., (iii) Consoltex International has been merged with and
into Balson-Hercules and (iv) Walpole has been merged with and into Marino
(collectively, the "Reorganization"); and
WHEREAS, the Borrowers and the Guarantors have requested that certain
of the schedules and exhibits to the Credit Agreement, the Security
Agreements and the IP Assignment be amended in the manner set forth herein
in order to reflect more accurately the data set forth therein upon the
effectiveness of the Reorganization and the US Collateral Agent, the Agents
and the Lenders are willing to agree to such amendments;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do
hereby agree as follows:
1. DEFINITIONS. Any capitalized terms used herein without
definition shall have the meaning set forth in the Credit Agreement.
2. AMENDMENTS TO AND RESTATEMENTS OF TERMS OF THE CREDIT AGREEMENT.
Subject to the terms and conditions set forth herein, the Credit Agreement
is hereby amended as follows:
(a) SECTIONS 11.8(B)(I) of the Credit Agreement is amended and
restated in its entirety as follows:
"(i) any subsidiary of any Borrower may merge or transfer
all or substantially all of its assets into or consolidate
with such Borrower or any wholly owned Subsidiary of such
Borrower which is a Borrower or a Fully Secured Guarantor
(as hereinafter defined),"
(b) SCHEDULES 6.3, 9.4, 9.9, 9.15, 9.15(A), 9.17, 11.4(G), 11.5
AND 11.7 of the Credit Agreement are hereby amended and restated in their
entirety as set forth in EXHIBIT A attached hereto.
3. AMENDMENT OF EXHIBITS TO 1996 SECURITY AGREEMENT. Subject to the
terms and conditions set forth herein, the 1996 Security Agreement is
hereby amended to amend and restate the Exhibits in their entirety as set
forth in Exhibit B attached hereto.
4. AMENDMENT OF EXHIBITS TO 1999 SECURITY AGREEMENT. Subject to the
terms and conditions set forth herein, the 1999 Security Agreement is
hereby amended to amend and restate the Exhibits in their entirety as set
forth in Exhibit C attached hereto.
5. AMENDMENT OF EXHIBITS TO IP ASSIGNMENT. Subject to the terms and
conditions set forth herein, the IP Assignment is hereby amended to amend
and restate the Exhibits in their entirety as set forth in Exhibit D
attached hereto.
6. CONSENT OF GUARANTORS. Each of the Guarantors has joined in the
execution of this Amendment solely for the purposes of consenting hereto
and for the further purpose of confirming its guaranty of the Obligations
of the Borrowers pursuant to the Guaranty Agreement to which such Guarantor
is party, and each such Guarantor, together with each Borrower in its
capacity as a Guarantor under the Initial Guaranty, does hereby so consent
hereto and confirm such guaranty.
7. REPRESENTATIONS AND WARRANTIES. In order to induce the Agents
and the Lenders to enter into this Agreement, the Borrowers and the
Guarantors represent and warrant to the Agents and the Lenders as follows:
(a) The representations and warranties made by each Borrower or
Guarantor in ARTICLE IX of the Credit Agreement and in each of the
other Loan Documents to which it is a party are true and correct in
all material respects on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to an
earlier date;
(b) There has been no material adverse change in the condition,
financial or otherwise, of the Borrowers and their Subsidiaries, taken
as a whole, since the date of the most recent financial reports of the
Borrowers received by each Agent and the Lenders under SECTION 10.1 of
the Credit Agreement; and
(c) No Default or Event of Default has occurred and is continuing
and no Acceleration Event has occurred.
8. ENTIRE AGREEMENT. This Agreement, together with all the Loan
Documents (collectively, the "Relevant Documents"), sets forth the entire
understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and agreements
among the parties relative to such subject matter. No promise, condition,
representation or warranty, express or implied, not herein set forth shall
bind any party hereto, and not one of them has relied on any such promise,
condition, representation or warranty. Each of the parties hereto
acknowledges that, except as otherwise expressly stated in the Relevant
Documents, no representations, warranties or commitments, express or
implied, have been made by any party to the other. None of the terms or
conditions of this Agreement may be changed, modified, waived or canceled
orally or otherwise, except as permitted pursuant to SECTION 14.6 of the
Credit Agreement.
9. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby
specifically amended, modified or supplemented, the Credit Agreement and
all other Loan Documents are hereby confirmed and ratified in all respects
by each party hereto and shall be and remain in full force and effect
according to their respective terms. Each Guarantor hereby acknowledges
and agrees to the amendments of the Credit Agreement, the Security
Agreements and the IP Assignment set forth herein and hereby confirms and
ratifies in all respects the Guaranty Agreement to which such Guarantor is
a party and enforceability of such Guaranty Agreement against such
Guarantor in accordance with its terms.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
11. GOVERNING LAW. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the state of New York.
12. ENFORCEABILITY. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable as to one or more of
the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
13. REFERENCES. All references in any of the Loan Documents to the
"Credit Agreement", "Security Agreement" and the "Assignment of Patents,
Trademarks, Service Marks and Copyrights" shall mean the Credit Agreement,
the Security Agreements and the IP Assignment, respectively, as amended
hereby. All references in any of the Loan Documents to "NationsBank" and
to "NationsBank, National Association" shall be amended hereby to refer to
"Bank of America" and "Bank of America, N.A.", respectively.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of each of the Borrowers, the Guarantors, the Lenders,
the Agents, the U.S. Collateral Agent and their respective successors,
assigns and legal representatives; PROVIDED, however, that the Borrowers
and the Guarantors, without the prior consent of the Agents, may not assign
any rights, powers, duties or obligations hereunder.
15. EXPENSES. Borrowers agree to pay to the Agents and the Lenders
all reasonable out-of-pocket expenses incurred or arising in connection
with the negotiation and preparation of this Agreement.
16. CONDITIONS PRECEDENT. The effectiveness of this Agreement is
subject to the receipt by the Agents of the following, in form and
substance satisfactory to them: (i) executed originals of this Agreement;
(ii) amendments to UCC Financing Statements as requested by the US
Collateral Agent; and (iii) copies of all additional agreements,
instruments and documents which the Lenders may reasonably request, such
documents, when appropriate, to be certified by appropriate governmental
authorities.
Signature Page 1 of 6
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the
day and year first above written.
BORROWERS:
CONSOLTEX INC. formerly known
as Consoltex Group Inc., as Borrower and Guarantor
By:
Name:
Title:
By:
Name:
Title:
CONSOLTEX (USA) INC., as
Borrower and Guarantor
By:
Name:
Title:
By:
Name:
Title:
THE BALSON-HERCULES GROUP LTD., as
Borrower and Guarantor
By:
Name:
Title:
By:
Name:
Title:
LINQ INDUSTRIAL FABRICS, INC.,
as Borrower and Guarantor
By:
Name:
Title:
By:
Name:
Title:
CONSOLTEX MEXICO, S.A. de
C.V., as Borrower and Guarantor
By:
Name:
Title:
By:
Name:
Title:
AGENTS:
NATIONAL BANK OF CANADA,
as Canadian Agent
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as US Agent and U.S. Collateral Agent
By:
Name:
Title:
LENDERS:
NATIONAL BANK OF CANADA
By:
Name:
Title:
BANK OF AMERICA, N.A.
By:
Name:
Title:
NATIONAL BANK OF CANADA, U.S. DIVISION
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
By:
Name:
Title:
FLEET BUSINESS CREDIT
CORPORATION (successor to Sanwa Business
Credit Corp. and BankBoston, N.A.)
By:
Name:
Title:
GUARANTORS:
RAFYTEK, S.A. de C.V., as Guarantor
By:
Name:
Title:
RAFYTICA, S.A., as Guarantor
By:
Name:
Title:
VERA PAK, S.A. de C.V., as Guarantor
By:
Name:
Title:
MARINO TECHNOLOGIES INC., as Guarantor
By:
Name:
Title:
ROYALTON MEXICANA, S.A. DE C.V., as Guarantor
By:
Name:
Title:
VEST COMPANY VESTCO, S.A. DE
C.V., as Guarantor
By:
Name:
Title:
MARINO TECHNOLOGIES DE MEXICO,
S.A. DE C.V., as Guarantor
By:
Name:
Title:
A-1
EXHIBIT A
SCHEDULES TO CREDIT AGREEMENT
Doc. No. 320619 B-1
EXHIBIT B
SCHEDULES TO 1996 SECURITY AGREEMENT
Doc. No. 320619 C-1
EXHIBIT C
SCHEDULES TO 1999 SECURITY AGREEMENT
Doc. No. 320619 G-3-1
EXHIBIT D
SCHEDULES TO IP ASSIGNMENT
Doc. No. 320619 G-3-1